How technology may temper our desire to speak freely
Jon Katz
First Amendment Center scholar
07.21.00
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New technologies pose unprecedented challenges to the way in which the First Amendment has traditionally worked to protect free and open speech. For much of the 20th century, the greatest threat to speech was usually from despotic governments and social movements — fascism, communism, apartheid, nazism. But those political movements failed.
In the 21st century, threats to free and unfettered speech are more subtle. As privacy is increasingly invaded by new kinds of laws and powerful new tracking technologies, our willingness to share our thoughts and ideas may face profound challenges. Some of these are outlined in a new book pointing out that our freedom to speak openly has been significantly eroded by the threat of exposure.
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.
Understandably, 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 him 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 peek with impunity at our diaries and e-mail, track the books we order and the Web sites we visit.
The Unwanted Gaze became a blistering 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.
Invasions of privacy were a hallmark of the Monica Lewinsky scandal, writes Rosen, who is 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 politicians 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 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.
This broad-based assault on privacy — by no means coming only from the Net — threatens one of the cornerstone ideas of individual rights since the Enlightenment — 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 and relevant 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.
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. But 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 the 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 destroyed as thoroughly as anyone's in memory, possibly excepting Princess Diana.
Lewinsky 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 assigns a lot of the blame to recently enacted anti-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 l980s and '90s, he writes, the Supreme Court recognized sexually explicit 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 invade their workers' private e-mail and personal correspondence — even to rifle through their desks — almost at will. Online or in the workplace, the idea of the inviolate personality has virtually vanished, 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 many 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 rat 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 addresses that 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 also will inevitably be used by law enforcement.
The awareness that these communications can be retrieved and disseminated will inevitably affect First Amendment notions of protected speech. If we know our e-mail can be seized and retrieved, won't we begin to exert more caution about what we say?
The FBI's "Carnivore" system, so named, agents say, because it is able to quickly get the "meat" in huge quantities 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 Internet service provider. 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 contemporary America, information gatherers are much more likely to be companies than police officers or evil political systems. Rosen cites Amazon.com's software that uses zip codes and domain names to identify the books most purchased by employees of prominent corporations. Amazon brags about the "recognition" software that tracks its regular customers' buying habits. 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 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 can at any time be disseminated to the world is chilling and inhibiting to free speech.
But privacy is especially critical when it comes to protecting the First Amendment.