Congress

Soundbite: Probing Privacy

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In the uncharted terrain that is privacy policy in the digital age, there are few compasses as reliable as Jeffrey Rosen. His new book The Naked Crowd (Random House) is a nuanced attempt to reconcile the demands of security with respect for civil liberties. Rosen teaches law at George Washington University and is legal affairs editor of The New Republic. He spoke with Assistant Editor Julian Sanchez in March.

Q: How have public attitudes about privacy and security changed?

A: We are more risk averse. I am concerned about the zero-risk mentality proliferating in Western democracies; it predates 9/11, and it's evident in our response to things like mad cow disease too. That's connected to the growth of the public opinion state and the plebiscitary presidency. Privacy won't be defended unless we care about it, and it's not clear that we do. The forces that lead people to expose themselves are many: There's a desire to distinguish yourself, the pressure of a therapeutic culture where stripping yourself bare is a way of connecting, the decline of norms of reticence.

Q: You argue that it's more productive to fight for privacy-protecting checks in surveillance technologies than to oppose such technologies wholesale. Can you offer an example?

A: One solution might be to make information traceable without being immediately identifiable. For instance, you might have a card that tells people that I'm allowed to cross an international border, that identifies certain distinguishing characteristics or releases other information at my discretion, but maybe doesn't have my address or even tell the border officers that my name is Jeff Rosen. That would, in a way, protect privacy more than the driver licenses we have now.

Q: Why do you suggest legislatures are more likely to defend privacy than courts are?

A: The idea that judges rather than legislators lead the fight for privacy is largely a myth. Consider the congressional fight against Total Information Awareness, against a national ID card, the sunset provisions in the PATRIOT Act and the efforts to repeal it, medical privacy, the regulation of wiretaps. Polls suggest that about 50 percent of the public thinks the PATRIOT Act struck the right balance, 20 percent thinks it didn't go far enough, and maybe 20 percent thinks it goes too far. Civil libertarians are decidedly a minority, yet their concerns were reflected in a way that suggests Congress is a less plebiscitary body than is usually supposed. Judges, by contrast, have tended to be relatively acquiescent in the face of executive demands.