In The Unwanted Gaze: The Destruction of Privacy In America, law professor and columnist Jeffrey Rosen first blames expanding sexual harassment and gender discrimination law for wanton destruction of individual privacy. Cyberspace is second on his list.
A growing number of lawyers and scholars, including Rosen, say they now believe that fundamental changes in Net architecture are necessary to protect constitutional values and restore the notion of the "inviolate personality" to the private lives of Americans. These would include copyright management systems to protect the right to read anonymously, permitting individuals to pay with untraceable digital cash; prohibiting the collection and disclosure of identifying information without the reader's knowledge, or using digital certificates to create psudonymous downloading.
To Rosen, author of Gaze, cyberspace is posing a greater menace to privacy by the day. He details the l998 forced resignation of Harvard Divinity School dean Ronald F. Thiemann, who downloaded pornography onto his university-owned home computer. A Harvard technician installing a computer with more memory at the dean's residence was transferring files from the old computer to the new one and noticed thousands of pornographic pictures. Although none of the pictures appeared to involve minors, the technician told his supervisor. University administrators asked the dean to step down.
Harvard justified its decision by claiming that Divinity School rules prohibited personal use of university computers in any way that clashed with its educational mission. But the dean was using his computer at home, not work. And no student or colleague suggested he had improperly behaved in any way as head of the Divinity School. His work was never questioned. It's ludicrous to suggest that the school would have fired him if he'd been downloading sports scores or bidding for furniture on eBay. But although he'd committed no crime and performed well in his job, he was forced out in disgrace, while his intimate communications were discussed in public. Even in a supposedly freedom-loving and prestigious university, what Justice Louis Brandeis dubbed the right of every citizen to an "inviolate personality" -- the part of our private thoughts, communications and explorations once thought beyond the reach of exposure and dissemination -- that is private could be invaded and voided.
The Harvard case also underscores the blurring of boundaries between home and work caused by technology. Millions of employees and workers criss-cross between their employer's equipment and their own for work and personal communications.
The one serious omission in The Unwanted Gaze, perhaps because Rosen is a member of the Washington journalistic elite, is his unaccountable failure to consider the media's role in growing assaults on the idea of privacy. Journalism has become a prime instigator of the destruction of privacy.
Until recently, politicians were permitted the right private lives, along with other citizens, as long as their private behavior didn't compromise their work. But journalism has been breaching that tradition for years, considering even the most private details of public people, now considering even themost private d etails of public officials' lives to be its business, justifying intrusions like the Lewinsky story in the name of investigating character and protecting the public. The contemporary press, which should be defending the right of individual's to historic privacy protections, is demolishing the idea of the inviolate personality, particularly for public figures. This has driven countless people from public service and discouraged many more from entering.
Because the Net is the planet's largest and fastest Xerox machine, as well as the world's greatest new marketing opportunity, it constitutes a particular menace to privacy and is escalating its erosion. Personal information can be - is -- gathered and transmitted more rapidly and comprehensively than has ever been possible.
Corporations busy stealing their customer's private information are now eager to appear concerned about it. In June, more than 30 major technology companies -- AT&T, American Online, Microsoft, Hewlitt-Packard among them -- went to the White House to announce a Net protocol designed to serve as an automatic privacy-protection agent -- the so-called P3P-compliance. But a number of privacy addvocay organizations, including the Electronic Privacy Information Center, Computer Professionals for Social Responsibility and Junkbusters derided P3P's claim to being any kind of real privacy-protection.
Many of these critics referred to what's known as the "VCR syndrome," which holds that in a country where most people can't figure out how to program their VCR's, overly technical solutions to privacy concerns are doomed. Despite the White House-generated hype, this leaves the idea of privacy in trouble.
The idea of the "inviolate personality" is one of the greatest and newest freedoms in history. In our time it's not only being nibbled to death but obliterated, and almost all of us are willing, even enthusiastic participants.
Rosen believes that changes in Net architecture and new encryption technologies ("snoop-proof" e-mail) could in a few years restore Justice Brandeis' ideal: the right of every individual to determine "to what extent his thoughts, sentiments, and emotions shall be communicated by others." Others agree. A professor in the United Kingdom sent me this e-mail in response to Part One of this series: "... one of my students has just completed a thesis that describes a system that allows you to send messages across the system that are guaranteed anonymous. The system assumes the use of PDA like machines but can definitely be made to work. Privacy of content can of course be obtained by encrypting the messages. (Up to a point etc ...) My student's system is a simple analogue of the public phone system. So it can work since the phone system allows anonymity."
Despite the clear and logical reasoning of his book, Rosen isn't persuasive on the idea that new software will protect our thoughts and secrets. The threshold of privacy referred to by Brandeis and outlined by the Constitution's framers has been nearly wiped out by the media, by gender-discrimination and harassment rulings, and by rabidly invasive and corporately-funded information-gathering software.
Rosen makes a great case that the idea of the inviolate personality has nearly been killed off. He fares a bit more poorly with the idea that it will magically be restored in a matter of a few years with digital cash and a handful of encryption programs.
"Already," writes Rosen, "user-friendly Web sites are spring up that give you the benefits of encryption without the hassles of having to understand the difference between public and private keys. A site like ZipLip.com, for example, allows you to send encrypted e-mails for free without leaving any records that can be subpoenaed or searched."
Rosen writes about the technology of anonymity and pseudonymity being developed bycompanies such as Zero-Knowledge.com, which is based in Montreal. For a modest fee, says Rosen, you can buy a software package called Freedom, which allows you to create five digital pseudonyms, or "nyms," that you can assign to different activities, from discussing politics to surfing the Web.
Should free citizens in a democratic society have to spend money for "nyms" to preserve the privacy they ought to be -- and once were -- accorded in law? How many millions of computer users will even know of this new technology, or have the money to use it?
Rosen's implication is that even if software caused the problem, then software will clean up. His assurances seem a bit "gee-whiz." But to ignore them cynically on that basis, or to trust them completely, ignores the history of technology. What people can create, others can and will undo. Technology that can be used will be used. In an otherwise powerful book, he also glosses over powerful incentives for eliminating privacy in cyberspace. First, the megacorporations dominating media, business and government will continue to aggressively explore ways of tracking potential customers as Net use grows. Secondly, law enforcement agencies like the FBI have been fighting for decades for the right to deploy tracking programs like "Carnivore" (see part one) and are hardly likely to back off. And finally, powerful institutions -- the entertainment and movie industry, professions like law and medicine, and entities like the U.S. Congress itself -- will inevitably seek to regain the primacy they had -- until the rise of the Net -- over copyright and culture, as well as the setting of social and political agendas. It seems naive to think that "user-friendly" Web sites are going to save the inviolate personality people once had, and are entitled to have again.