How technology may temper our desire to speak freely

Friday, July 21, 2000

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

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

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

In contemporary America, information gatherers are much more likely to
be companies than police officers or evil political systems. Rosen cites’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

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.

Tags: ,