The Secret History

Brian Doherty | July 24, 2000

Two books demonstrate that little is new about America's love-hate relationship with privacy.

The Unwanted Gaze: The Destruction of Privacy in America by Jeffrey Rosen (Random House)

Ben Franklin's Web Site: Privacy and Curiosity From Plymouth Rock to the Internet by Robert Ellis Smith (Privacy Journal)

Do you consider yourself a private person? If yes, then I'll presume you don't have a listed phone number and never use a credit card; you don't accept cookies from Web sites, or visit Web sites that ask for your e-mail address (God forbid name and home address); you don't post to Usenet or join e-mail lists or discuss anything personal over e-mail; you avoid city streets or shops with surveillance cameras (look closely, they are everywhere); you don't use a cell phone; and you hide in the closet when the census worker knocks on your door.

Maybe you aren't quite that private. It turns out that defining privacy is a somewhat knotty problem, particularly when it comes to matters of regulation. Some think the law should protect your right to be left alone as much as you want to be; others might say that one person's sense of intrusion is another's exercise of liberty (like spam demon spawn or legitimate tool of commerce?).

Two recent books have jumped into the debate with gloomy assessments of the state of privacy in America: Ben Franklin's Web Site: Privacy and Curiosity From Plymouth Rock to the Internet by Privacy Journal editor Robert Ellis Smith and The Unwanted Gaze: The Destruction of Privacy in America by Jeffrey Rosen, legal writer for the New Republic.

These books, ostensibly about privacy, are mostly about privacy law, which is not necessarily the same thing. Smith thoroughly reviews all of the judicial twists and turns that led to the current legal conception of privacy from an influential 1890 Louis Brandeis and Samuel Warren Harvard Law Review article to Supreme Court cases like Griswold vs. Connecticut (1965) and Planned Parenthood vs. Casey (1992). These examples provide shifting and sometimes contradictory opinions about our right to make personal decisions free of government interference.

Less comprehensive than Smith, Rosen focuses at length on two things: Bill Clinton's impeachment and the rules of evidence in sexual harassment law, and the threat that computers present to our control of personal information. According to Rosen, his two topics are united by "the importance of maintaining private spaces to protect individuals from being judged out of context in a world of fleeting attention spans."

Yet as the vague and ever-shifting legal formulations Smith and Rosen include show, it's hard to draw a line between one person's liberty to investigate, speak and publish and another person's privacy. Information even if it's about you doesn't necessarily belong to you. Once it is in someone else's mind, legally suppressing it raises tricky First Amendment questions.

Privacy law is further complicated because there are two kinds of intrusion on privacy, with different entities doing the intruding. One involves government interference in matters that aren't necessarily the government's concern (like contraceptive use, at issue in the key privacy-defining Griswold case). The other involves private entities spreading or using information about ourselves we would rather others not know.

That second kind of intrusion has been made far easier and more prevalent by computers, as both Smith and Rosen discuss. It is easy to tut-tut the loss of privacy inherent in the networked world. As our list of things a truly private person must do to avoid observation and disturbance of any kind illustrates, however, protecting privacy has costs costs that most of us don't want to pay. That's why people want to regulate things like spam and cookies.

It seems easier to legally restrict what other people can do than to worry about developing or using technology to work around them. It may be even easier to realize that the benefits of the quick and efficient spread of information perhaps outweigh any costs of a decrease in privacy.

After all, privacy is inherently vague. Neither decades of legal cases nor these two books have come up with a definition on which most would agree. And we are hypocrites about it we have an endless curiosity for personal details about others even as we zealously protect our own.

Perhaps we worry about privacy more than it's worth worrying about anyway. Except when police officers are the ones doing the violating, most of the privacy violations of the Internet age are weak tea. In general, the worst you can expect is spam e-mail and junk mail that's better targeted toward the interests you have expressed online.

In some cases, commercial trading of private information can cause you trouble like inaccurate credit reports, or insurance companies knowing too much about you. The former can be solved with the distribution of better information part of the positive side of the networked world that privacy advocates often ignore. As for the latter, well, do you really have a right to insurance at rates that you wouldn't have received had the insurance companies known more about you?