The Future of Privacy in America
Air Date: May 9, 2022
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today, Amy Gajda. She’s a professor of law at Tulane University, an author of the new book “Seek and Hide: The Tangled History of the Right to Privacy.” Welcome, Amy.
GAJDA: Thanks so much for having me.
HEFFNER: You’re welcome. A pleasure to host you today. Let me ask you from the outset, as an American citizen, or anyone living in this country, what’s the most important thing to know about the state of privacy in America today?
GAJDA: I think that something that a lot of people don’t understand when I tell them about this book, they’ll say they’ll say it’s a work of fiction because we don’t have any privacy today, is the suggestion. And of course that’s wrong. And what’s happened over the course of the past 10, 15 years, or so, is that courts are coming in and finding that we all have rights to privacy, certain rights to privacy, even when there might be information that the public might be very interested in knowing. So that clash is what the book is about. And I think that might surprise people to learn that they actually do have privacy in a world of the forever internet and otherwise.
HEFFNER: Correct me if I’m wrong, but I think the default position that you’re alluding to, is the idea that by being a digital native today, you are sacrificing certain rights that may not be inalienable, right? That in the internet age, you are by definition forfeiting when you buy a product on Amazon or join a social network like Twitter or Facebook?
GAJDA: So, that is true to an extent, but what has happened today is that courts are recognizing that because being online is a way that we communicate today and, to force people offline in order to protect their privacy wouldn’t be fair. And so therefore, interestingly, what a number of courts have decided lately, is that even when we share information online, as long as we share information to a very small group of people, not even very small, but a group of people, and we expect that group of people to keep things quiet, that does not mean that the information necessarily goes public. And what I mean here is that, in the past what courts would say is if there’s something, if something is put online, you sacrifice your right to privacy and that information. So if I put a medical diagnosis online, for example, courts would say, hey, you’ve sacrificed your right to keep that quiet in the future. That’s not the case anymore. So increasingly courts are suggesting that when we share information with our friends, expecting that the information will remain with our friends, then we retain a right to privacy in the information, even though we may put it out on social media.
HEFFNER: And you would say that’s a changing landscape in the jurisprudence over the last decade?
GAJDA: That’s right. I think what happened was when the internet began, and I was there for it, when the internet began there was this suggestion that that, you know, whatever was put online was fair game and that once you put it out there, there was no privacy in the information. And people sort of celebrated that, right? So it became sort of a, you know, marketplace of ideas concept, everything’s out there. This is a really good thing. But of course once people started being harmed by the information that was revealed. So a photograph from college that a person would rather not be out there when the person became a lawyer, for example, when that happened, then increasingly people became more concerned about their privacy there, and now courts are being more responsive to that. And when I started teaching privacy more than 20 years ago, I would’ve never told my students that. So in other words, this concept of privacy on the internet was just so foreign at the time. But courts have certainly come around in the past few years.
HEFFNER: Right. And of course there is the privacy that you understand that someone is not supposed to invade your privacy, but then the reality of your cookies being sold to third parties. I mean, right. So there’s the explicit knowledge, according to the letter of the law or the terms and conditions of the website you’re participating in, but then there’s the actual, you know, maybe fine print or reality of behind closed doors, where that data is being, or are being transmitted. I very deliberately, Amy, asked you about the state of privacy in America relative to Europe or Australia or Asia because it’s very different, and we know about the right to be deleted or forgotten in Europe. And that was an early and seminal understanding and Google as a result, Alphabet parent company has had to operate differently because the trend you suggest is happening in the U.S. now happened immediately in Europe and in other places.
GAJDA: That’s right. So there was this, there was this you know, right to be forgotten as we suggest in Europe, fairly quickly and yet we see those interests as well. And they’ve been around for a while. There’s a legal treatise of sorts called the “restatement” and in the “restatement” it suggests that there is a right to be forgotten. It says that, for example, if Jean Valjean has his, the information about his past crimes revealed in a newspaper, that in fact because so many years had passed, he could have a valid claim against that newspaper. So even though we don’t think of the right to be forgotten as the being something in the United States it actually does exist in law at least in the “restatement.”
And you’re, you’re seeing a little bit of that today, too. Especially with regard to criminal histories. So criminal histories and mugshots, and that sort of thing can be you know, changing for a person who was arrested when that information goes out on the internet. And so again, this isn’t a major trend, but some courts have ordered that sort of information removed from the internet in the interest of allowing these people to go on with their lives. And that parallels very much that that information in the “restatement” that I talked about involving Jean Valjean.
HEFFNER: Right. And to reflect on this question of known versus unknown invasions of privacy, how do you assess that landscape? Because the vast majority in of invasions of privacy are not going to be known to the user, whether that’s on the internet or police scans that are doing any kind of biological detection you know, it’s not just your license plate anymore, could be your, your eyes or your DNA, of course.
GAJDA: Sure. And so that I have, I have two answers here, and I hope I remember both parts of your question. Number one, regarding data what’s happened also is that there have, there’s been a real movement not only in courts, but in legislatures to protect data in certain ways. And so I use in the book, the example of something when I was a journal list someone’s home address, that was something that was just commonly a bit of information, a bit of data, that was public information. So many people knew it and therefore there could be no privacy in one’s home address. Well, that’s different now, again, some courts have changed and decided that there is or should be some level of privacy in one’s home address. And that’s particularly in doxing cases. So courts are horrified. Some courts are horrified at what goes on there. And they’ve suggested then that there is some level of privacy in even one’s home address. The second part of your question is about scans of faces and eyes and that sort of biometric data and state courts have especially taken hold of that sort of information and by statute, by law in the state found that information protected by privacy as well. And so and so there’s a separate question about what the government can do with that information. And so therefore, with regard to policing but, as you suggest in addition, there are companies out there that are very interested in that data as well. And those state laws are also restricting that sort of use. So again, what this all goes to, I think is my first point, which is that we think that in today’s world we don’t have much privacy but in reality, the courts and legislatures are saying something different,
HEFFNER: When you think of how universal the internet has made invasions of privacy, I think a lot, and I know your book covers, you know, freedom of the press, and we’ll get to that in a moment. But when we talk about not just the press, but every American citizen in their protection, what was robbed of the American people as a result of Cambridge Analytica and all the exposes on data leaks and poaching of data, you know, I am of the school that we are owed reparations for data that was stolen about each and every one of us. And that is different from, you know, many decades or centuries of this history. Because again, it’s universal and what happened with Cambridge Analytica impacted, you know, millions of Americans.
GAJDA: Right. And I should say, lawyers are listening to those calls. So what you’ve just suggested, and there are a number of class action lawsuits that that exist right now that are working their way through courts that that suggests that there is privacy in that sort of data as well. And so it will be interesting to see, I suspect that courts ultimately, based on what they’ve decided so far, may in fact come to agree with you and that in these class actions and other sorts of lawsuits in fact, we will be finding greater protection for privacy, but then also and it’s, you know, there’s a question about who’s ultimately going to get the money but decision also with monetary value in favor of plaintiffs and those sorts of cases,
HEFFNER: Of course we do want to talk about freedom of the press historically, and in the present, you know, there is the possibility that that legal landscape is going to be evolving and shifting to even further shield the corruption of public officials, specifically understanding the precedent that was set in the Watergate era around the, you know, the Pentagon Papers and the Nixon tapes and where that stands today. Where does it stand today?
GAJDA: So I would say that today there remains this clash between the right to privacy and the right to know. And that today if you are a politician, for example it is highly unlikely that you will have a great amount of privacy cloaking what you might consider your private life. And so therefore we should celebrate that in a way that that we do get to know at least in legal sense a lot about out our elected officials, that’s crucially important. That’s sort of right to know. But, and that’s why, even though we celebrate privacy and I think you know, it sounds like we both celebrate privacy. We also have to be very conscious of having too much privacy because if in fact privacy is allowed to quash anything that might otherwise be private even regarding politicians, we are in a very dangerous place.
And I’ll give you a quick example and that’s income tax returns. So income tax returns, there’s been a real cloak of privacy around those for the average person. And this restatement that legal treatise that I talked with you about before. That legal treatise suggests that we all have a right to privacy in our income tax returns. And that’s great, except when you consider then that maybe there are some politicians out there who could in fact bring some sort of legal action should you know, should a news organization release income tax returns. Now, I don’t think, it might happen. I don’t think that politician would win. I don’t think a president would win. But it’s an interesting, it’s an interesting situation when have so much protection on privacy grounds in that particular area. And yet we suggest that politicians have very little privacy. You know, at what point do politicians have, you know, some level of privacy despite the right to know and also our deep concern about who we’re electing as public officials, who becomes a public official in that sense.
HEFFNER: Where do you see the jurisprudence going in this direction? Knowing that we have this contemporary media culture that is irreversible. There is not going to be a president like FDR who can withhold, you know, his disability for years, for multiple terms as president, or at least the condition of his disability. That’s not going to happen. What you do see with the January 6th investigation is once again, the salience of telephone records in looking at officials on the clock and off the clock, and their conversation with the capital police and other folks around the insurrection and whether or not preventative measures were not implemented. And the folks at the capital were specifically you know, withheld support, security support under those circumstances. I gather that’s less of a personal invasion of privacy if these are government phones. But even if they’re not government phones and they’re being used around official business, then it should be a fairly clear-cut case. But separate from the insurrection. And I do want to give you a chance to weigh in on that, but I should say separate and inclusive of the insurrection, how do you see the privacy laws evolving, or at least any Supreme Court decisions that may affect privacy for politicians?
GAJDA: I think that we will retain the way the law looks at those cases now. And that is we will, what happens in those sorts of cases is that judges weigh the news value of the information, the news value of what’s released versus the person’s privacy interests. And so therefore you can imagine that tax returns are, I think we would all collectively say, less private than is a sex tape, for example. And so I suspect that what a court would do if there were a politician out there and there were, and someone released income tax returns, I think that the court would say that that information is newsworthy and therefore that reporting should be protected in interests of freedom of the press and the right to know. I’m not as sure on the sex tape question.
So even though the, even though the law suggests that politicians have very little privacy, they still have some level of privacy. And so a sex tape could be something different. And that that’s when courts get into this analysis of what is newsworthy or not. That’s why, for example, phones that that contain newsworthy information, that newsworthy information then might be protected if reported, even though we, even though we may not in the everyday world have a list of the people others call. If that information is on the phone, you know, a news organization gets a hold of it, then the news value in that information would very likely trump any privacy interest in that phone, as long as the person who had the phone was involved in something like the insurrection for example.
HEFFNER: And of course, we’re talking about what might not have been disclosed in private texts, but of course we know that the comments of the former president and Rudy Giuliani, when we talk about freedom of expression and what is permissible or what is, you know, going to incite violence. That is a question too, because we know that, you know, Donald Trump finally was banned from social platforms as a result of bloodshed and the suggestion that his words and Giuliani’s and others directly caused or precipitated the violence. And so, you know, there are inevitably class action or other suits going to be considered from the families of those impacted by the violence on that insurrection day. You know, it’s clear that the January 6th Commission is investigating wrongdoing, that was specifically withholding support of police. But where do you stand on the words themselves? You know, they are fit to print and, you know, are part of first amendment protection, but as soon as they start inciting bloodshed, that becomes theoretically both a civil and criminal problem.
GAJDA: Yeah. And really my area, my interest, is much more in when those words that are directed at one person in particular, might in fact be made public. And so I think that that certainly that question then hinges on the news value of the words spoken. And even though, let’s say the two of us are, you know, texting each other if, if we’re doing something that that the government is interested in, then the government has some ability to get that information most likely in some way. The real question then with regard to the privacy concerns that are explosive today with regard to social media and otherwise is who else can have access to that information. So I think your point’s a really good one, that even in cases like those, so thinking about the criminal the criminal aspect of all of it, there usually is some level of protection for that information. That information is generally not released necessarily, even though, even though the government has access to it, even though the other side might have access to it. There might be some sort of cloak of privacy around that information as well.
HEFFNER: Just two more questions quickly in the minutes we have left. When it comes to the trend of, you know, powerful folks being able to sue for, for slander or liable. And basically, you know, in a few cases, being able to shut down entire news operations or websites, it’s, it seems like that trend is continuing and the jurisprudence or legal precedent is supporting these very powerful figures who don’t like that their sex tape was, you know, basically circulated in the public domain and are going to try to, you know, sue someone, you know, to shut them down.
GAJDA: Yeah. I, I think that that’s, that’s exactly right. And it’s interesting what the whole Hogan case did. I think what happened there is plaintiff’s attorneys and people wronged realize that wow, you know, maybe we can win privacy cases. Like I suggest suggested before. It was very unusual to win a privacy case. Well, not so much anymore. Now I will say this, that through the course of history, information about sexual, so sexual information, nudity, medical information, and some financial information has always been protected in the United States. And so therefore that sex tape, by my read of the law, was absolutely protected and should not have posted online despite the fact that he’s a famous person. So…
HEFFNER: You’re not really troubled by the trend necessarily?
GAJDA: Well, I’m troubled by the trend, writ large, let’s say. So in that particular, in that particular example, I do, this sexual information has been protected from the very, very beginning of the United States. And so I think that that’s separate.
GAJDA: But I will say this, that that back at the dawn of the internet, some federal judges were already saying to media, watch out, that federal judges were, as a group, thought that the media had too much first amendment protection. And I think a lot of people poo-pooed it at the time, but certainly you see that in in the case brought by Sarah Palin against the New York Times, for example. That to me is, you know, great worry that, that prediction back at the dawn of the internet that that media had to watch out, is then certainly being shown in the Palin case versus the New York Times because there, just very quickly, the second circuit federal court of appeals, a very influential federal circuit appellate court that had been very friendly to media in the past, found that Sarah Palin had a valid case.
That’s why there was a trial. Because this generally media friendly appellate court, federal appellate court with top notch judges on it, decided that she had a case. And where that suggests our defamation law is going, with regard to what media can report, I think is deeply troubling. So I can definitely draw a line between sex tapes, and you know, and that defamation law, and certainly sex tapes and also income tax returns.
HEFFNER: Amy Gajda, author of the new book “Seek and Hide: The Tangled History of the Right to Privacy.” Thank you for joining me today.
GAJDA: Thank you for having me. It’s been a pleasure.
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