Part One: Killing The "Inviolate Personality"

A new book argues that gender discrimination laws and software technologies are combining to destroy privacy in the United States. At particular risk is the American notion of the "Inviolate Personality," -- the part of every person's private thoughts, deeds and communications thought to be beyond the reach of public and governmental exposure and scrutiny. For those who love to speak and roam freely online, this is no small loss. First of two parts (so they'll both be shorter).

Jeffrey Rosen says he began writing The Unwanted Gaze: The Destruction of Privacy in America as an effort to understand the constitutional, legal and political drama behind the impeachment of President Clinton.

His exploration grew broader. The Clinton impeachment, Rosen later concluded, was really a window into a phenomenon that affects everybody, whether Kenneth Starr is after us or not: the erosion of privacy at home, at work and, especially, in cyberspace, where intimate personal information is increasingly vulnerable to exposure. All kinds of people -- litigants, employers, government agents and prosecutors, total strangers -- can now look with impunity at our diaries and e-mail, digital footprints and track the books we order and the Web sites we visit.

The Unwanted Gaze became an unsettling alarm of how technology and new laws -- especially those which spring from sexual harassment legislation -- have combined to make privacy nearly obsolete before most Americans have quite grasped just how much it's being threatened. When it comes to issues like technology and privacy, America is truly an unconscious civilization, blissfully trading away even prized and hard-won freedoms. (Yesterday, the White House announced that it planned to propose legislation that would set legal requirements for surveillance in cyberspace by law enforcement authorities.)

Invasions of privacy were a hallmark of the Monica Lewinsky scandal, writes Rosen, who's a law school professor and columnist. And increasingly, they are a legacy of the new technologies and software deployed on the Net and the Web.

Privacy used to be regarded as a nearly sacred American right. Keeping British soldiers and government agents out of people's homes and lives was one of the primary justifications for the American Revolution. But most Americans have barely blinked as their tastes, habits and preferences have been routinely tracked online. That apathy might be changing. "The public is nervous and increasingly suspicious of what online and offline advertisers are doing to them," the chief privacy officer of AllAdvantage, a Net advertising firm warned recently. As people become more alarmed, so will politicians. That means more laws from Congress, always a frightening possibility when it comes to the Net.

This broad-based assault on privacy --by no means confined to the online world -- threatens one of the cornerstone ideas of individual rights that dates back to the Enlightenment, and was embraced by the American legal system -- the idea of the "inviolate personality," the belief that a human being's innermost convictions, communications and tastes were private, to be protected from monarchs and governments as well as prying gossips. Online, this is an especially powerful idea. We talk to strangers all the time, assume all sorts of postures and personalities, express all sorts of opinions in all sorts of places, explore strange sites and spaces, leave all sorts of tracks. That freedom of exploration and expression is one of the most powerful things about the Net and the Web, one of the things that makes it unique, that so many people love the most about them.

In l890, Supreme Court Justice Louis D. Brandeis wrote that "the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others." That legal principle once prevented prosecutors from seizing and studying diaries, letters, and private papers. Thus many Americans were flabbergasted by the degree to which prosecutors could vacuum up the most intimate details of Monica Lewinsky's life, from her bookstore purchases to her private letters and e-mail. Whatever people thought of her relationship with this dunder-headed president, many were uncomfortable not only with the prosecutor's zeal but with the wide public dissemination her private life and records received in media and court documents. Lewinsky's "inviolate personality," however strange or narcissistic, was exposed and destroyed as thoroughly as anyone's in memory, possibly excepting Princess Diana.

Lewinsky -- along with much of the rest of the country -- was shocked to learn when agents seized her personal records and clothing that the right to privacy can be snatched away at any time. Her most personal e-mail messages to family and friends were posted all over the Web.

Rosen convincingly assigns a lot of the blame to recently-enacted harassment laws, which made the Paula Jones and Monica Lewinsky dramas possible. As sexual harassment law expands, writes Rosen, people can be interrogated about their consensual relationships on the flimsiest of allegations. During the l980's and 90's, he writes, the Supreme Court recognized sexually explict speech and conduct that created a "hostile or offensive working environment" as a form of gender discrimination, a legal evolution that made it difficult for lower courts and employers to distinguish consensual affairs from illegal sexual coercion.

The threat of harassment suits has prompted companies to wantonly invade their workers' private e-mail and personal correspondence -- even to rifle their desks -- almost at will. Online or in the workplace, the idea of the "inviolate personality" is vanishing, not by vote or legislation but by a gradual erosion caused by a series of court rulings and the advance of new information technologies like the Net.

The inviolate personality has also been undermined by diverse other culprits.

On the Internet, snoops are only one danger. In cyberspace, warns Rosen, the greatest threat to privacy comes not from nosey employers or colleagues who tattle but from the electronic signatures and footprints that make it possible to monitor and trace just about everything we read, write, browse, or buy. As people reading this know well, most browsers are configured to reveal every Web site people visit as well as IP addresses which may identify individual users. Often, this invasive software is even admired and hailed as cool new stuff.

But that information can be -- is being -- collected and stored to create detailed profiles of user tastes and preferences in shopping, reading and other habits, all of great value to hungry retailers, increasingly global megacorporations for whom mass marketing -- thus the gathering of personal information -- is nearly a religion. It will also inevitably be used by law enforcement. The FBI's "Carnivore" system, so named, agents, say, because it is able to quickly get the "meat" in huge quanitities of e-mail and instant messaging systems, consists of hardware and software that trolls for information after being hooked up to the network of almost any ISP. Once installed, "Carnivore" has the ability to monitor all of the e-mail on a network, from the list of what mail is sent to the actual content of the communications. Like other forms of searches and seizures, "Carnivore" requires court approval to be deployed. But it's capable of gathering an unprecedented amount of communications from targets in seconds, including personal and intimate messages many people believe are being sent anonymously.

In the Corporate Republic that comprises contemporary America, information gatherers are much more likely to be companies than cops. Rosen cites Amazon's creepy software that uses ZIP codes and domain names to identify the books most purchased by employees of prominent corporations. Amazon also touts its "recognition" software that tracks its regular customers' buying habits and makes personalized recommendations to them. Rosen also recounts the flap over DoubleClick, the Net's largest advertising company, which last year was forced to delay a plan to create elaborate dossiers linking users' online and browsing habits with their actual identities.

The combination of gender discrimination laws and new technology, and the risk they post to the idea of individual privacy, amount to a seismic change. Throughout the United States, the young in general and students in particular have no right to privacy at all. Their computers and writings are routinely seized and examined, and their e-mail, personal correspondence, writing and speech are increasingly taken out of context and disseminated to authorities and law enforcement agencies.

Democratic states have always drawn a distinction between public and private speech, recognizing that the ability to expose parts of our identity in some contexts that we conceal in other contexts is indispensable to real freedom.

Privacy is vital for the evolution of individual personalities, and for the formation of intimate relationships. It permits communications between friends, lovers and families. It is essential to freedom of expression and to any form of individualism, to the development of intellect and values. It's even essential to creativity. The idea that our reflexive reactions, frustrations, mistakes and missteps -- especially those expressed so freely, impulsively and widely online -- can at any time be disseminated to the world is a very real impediment to free speech and thought.

Next: Platforms for privacy?

Comments

Re:Jon Katz: Please die.

[JonKatz]

I will. I promise..

Re:David Brin's Transparent Society

[Kaa]

David Brin's premise, which I am also using, is that technology combined with power is and will erode personal privacy, and there's nothing we can do about that.

You are a bit confused. Your original statement was "losing personal privacy is OK if everybody else, specifically government, loses it too". My response was "no, it's not OK, and you can and should get government accountability without sacrificing personal privacy". Now you are saying "See, we are going to lose personal privacy anyway, so if we get government accountability into the bargain, this is not bad".

First of all, my point is that it is bad anyway. I am not a big fan of the "if you are going to be raped anyway, just relax and enjoy it" thinking. I do NOT think that making government transparent will in any shape or form compensate me for the loss of my privacy. Accountability of people in power is one thing, loss of personal privacy is another thing and I still don't see why you think they net each other out.

Second, I don't think that the loss of privacy is inevitable. Yes, technology is coming and one cannot stop it. But one can perfectly well stop its use by the government and law enforcement. Think about wiretaps. For a long time there has been technical capability to wiretap thousands and tens of thousands of people. Yet court-sanctioned wiretaps in the US number in hundreds per year. This is a straightforward example of privacy-invading technology being held in check by the legal system. I am not saying the same thing will happen to all the new technologies, but I don't see total surveillance as inevitable.

outlawing it creates the police state we want to avoid.

How come? If you outlaw, say, automatic face recognition and cross-referencing of personal information databases except by court order, how does this create the police state?

The answer is, turn the cameras back on the cameramen.

That's exactly my point: this is NOT the answer. To repeat myself, your loss of privacy does not compensate me for my loss of privacy.

Kaa

David Brin's Transparent Society

[1010011010]

The Transparent Society

I'm all in favor of giving law enforcement all the tools they say they need and they say they want under one condition: The more they get, the more light shines into them. I would be in favor of drafting random groups of citizens, 12 at a time, juries, and giving them a pass that lets them walk through any door in FBI headquarters at any time and listen to any conversation they want. If the FBI wants to be able to listen to us, then we should have people who we trust, members who've married our kids, members of our civilization and not part of the old-boy network, who will go in and verify - who will watch the watchman? If they are being watched then we'll be free, and I don't give a darn what the FBI knows about me, if I know what brand of toothpaste the head of the FBI uses. That's the fundamental thing: Can we shine light on the mighty?

JM: Some privacy groups have suggested a privacy commission to sort of oversee this sort of thing.

DB: Oh, big government agencies become powers unto themselves. I prefer the ad hoc jury. I prefer that several hundred little ad hoc juries of Americans be cut loose with little red passes that let them walk through any door in our government and see anything. And before they get co-opted the pass expires, it only lasts for six months. And as much as possible, let us see. As I said in my City A and City B, the difference between those two cities is not the numbers of cameras. Cameras are coming. There's no avoiding it, there will be cameras outdoors everywhere we go. The question is, will we as a citizen be able to use them. That guy who almost knocked you off the freeway, who almost killed you the other day by running you off and then gave you the finger and laughed driving away. Wouldn't it be great if your car automatically recorded the episode and you dialed in and showed the scene to his mother?

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