The Unwanted Gaze

I just did a search on Google. I've left Yahoo because Google works faster in searches, and Jeffrey Rosen, when you plug in his name, has 12,493 citations. Now, they are not all the same Jeffrey Rosen; I've found there were sort of two or three others. But they are quite interesting. If any of you read Jeff's front cover of The New York Times Magazine story recently -- and I actually heard it at a dinner conversation, but he validated it by putting in it in the article -- someone he knew, and I think someone I know too, did an Internet search on the man she was about to date and found out all of this information about him, some of it very embarrassing. I tried to dig into Jeff Rosen's information, through the search engine -- rather than looking at the first 40 or 50 citations, trying to jump down 2000 or so to find the real story on Jeff Rosen. I failed. But I know that in there is all sorts of information about him that he wouldn't otherwise want other people to know. And that's probably what has led him to write this important new book that has gained so much attention called The Unwanted Gaze: the Destruction of Privacy in America.

Jeff is an associate professor at George Washington University Law School, and I think equally or more important, he is the Legal Affairs Editor at The New Republic. The New Republic is a fine magazine, but there are a number of people who make it a particularly important journal to read, and Jeffrey Rosen has brought, I think, so much important scrutiny to some of the important legal issues facing the country over the last year or two. And I've been impressed with the application of his legal mind, and what he's brought to these important evolving questions on not just Internet privacy, but this new world we are going in to.

So it's a great pleasure to have Jeff Rosen here, who will speak for a few minutes. We'll follow by a round of questions and answers and then go on from there. So Jeff Rosen.

JEFF ROSEN: Thank you all so much for coming. This is the first day that the book is out, and I really can't think of a nicer place to be celebrating. The New America just is doing the most exciting work thinking through these issues, and I'm just so pleased to be here.

I thought I'd begin by trying to convince you why privacy is important. It turns out to be a much more counterintuitive idea than we would think. Everyone is for privacy in the abstract. But in fact, we are going to have to do a little bit of work together to figure out why we should actually care about privacy on the Internet.

But Steve has actually made my task much easier giving us the spectre of the most chilling idea imaginable, which is to have someone do an Internet search on you. Why is that so incredibly creepy? The story that I told at dinner, my poor friend who ran an Internet search on the guy she was set up on a blind date and found that he had been described in an online magazine -- Salon, of all places -- as one of the ten worst dates of all time. And all of these rather intimate details were fixed in her mind during their first and only dinner. So it was bad news for this poor guy. So why is it that it is so creepy to think of Steve doing an Internet search on Jeff Rosen? And of course, you know, the really juicy stuff is at 2005, or something like that. But I think it's because, in the age of the Internet, as thinking and writing and gossip and speech and sex increasingly take place in cyberspace, all of us are feeling a little bit like Monica Lewinsky.

Monica is the heroine of my book, and she's just this totemic figure. I have to say it, I can confess this now; I hope this isn't too indiscreet. I was absolutely thrilled the other day to get a telephone call from Monica's mother, saying that Monica and Marcia Lewis had read the book, and they felt so happy and so vindicated that someone had finally realized what was at stake in the whole drama that we all went through together last year. And that is privacy; not all the gossip and the tabloids and all that sort of stuff, but this notion of living in a completely transparent society. So in her memoir, which is -- I'm actually a bit of a fan of Monica's Story. I think it's a important work of constitutional scholarship. It teaches all of us, important things about privacy. It is. Actually, it's got an earnestness and a raw eloquence. And what Monica says is, the part of the Starr investigation that she found most invasive wasn't the subpoenaing of her mother or her friends, although that was bad enough. It was two things: It was the subpoenaing of her book store receipts from Kramerbooks, and also the resurrection of her undeleted e-mails and unsent love letters from the hard drive of her home computer. Prosecutors actually went back and, you know, that nothing on your hard drive is actually deleted unless you take care to use a secure, total delete program that puts X's and 0's all over the spaces. And they resurrected her undeleted e-mails and her unsent love letters. It was such a violation, she said. I felt like wasn't a citizen of this country any more. How is it possible that prosecutors were able to subpoena her unsent love letters from her hard drive?

In the 18th century, the paradigmatic example of an unconstitutional search was the search of someone's private diaries. King George III dispatched his Ken Starr figure, Lord Halifax, to search the diaries of John Wilkes, this roguish English patriot, a sort of Bob Packwood character. And Packwood objected that his diaries had been searched; he sued Kenneth Starr for trespass -- in those days, privacy was protected by notions of private property. You had to physically break into someone's home to get their diaries. And he won ruinous damages: A thousand pounds, a lot of money in its day.

Two centuries later, Bob Packwood and Monica Lewinsky tried to challenge the search of their diaries, and they found that the legal protection for private papers had evaporated. And one of my tasks in this book is to trace the legal evolution that made that invasion possible. But I also want to talk a lot about technology.

What was it that Monica found so invasive about the search of her undeleted e-mails and unsent love letters? I think it has a lot to do with what many people found so creepy and invasive about the sinister profiles of Double-Click. Remember, the uproar about Double-Click in March? Double-Click is the internet's largest advertising broker, and for a long time they had been putting cookies on our hard drives. Cookies are these little electronic files that enable them to trace the sites that we've visited and often the magazines we've skimmed and the amount of time we've spent skimming, reconstructing our reading habits with granular precision. As long as this reconstruction, these cookies were anonymous, people were happy to accept them in exchange for the efficiency of surfing more closely. But all of a sudden, in March, Double-Click announces that it's brought Abacus Direct, which is the largest direct mail company in the country, covering 90 million households, huge, and proposed to create personally identifiable dossiers linking our actual identities with our online and our off-line browsing habits. So suddenly browsing that once seem anonymous was going to be identifiable and put in personally identifiable dossiers.

People went nuts. The stock plummeted. Dot-com investors protested. And the epic Electronic Privacy Information Center threatened a suit at the FTC, and under this pressure, Double-Click backed down temporarily.

So what was it that people found so creepy about the Double-Click profiles? I think it was this notion, and this is one of the theses of the book, it was the same indignity that Monica was upset about. It was the danger of being judged out of context. What privacy protects us against is the danger of being judged out of context, of having isolated bits of information -- our reading habits, our e-mails, our gossip -- intended for one audience, recorded and then taken out of context by another audience and potentially mis-interpreted. So Monica didn't mind that her friends knew that she read Nicholson Baker's Vox, because they knew she was more than the kind of person who read a slightly dirty book about phone sex. They knew that she had many other dimensions. She does, she's a good girl, I'm a big Monica fan, so I won't hear a word against her. Similarly, if all that you know about me my silly speech I gave three years or my music habits, the music I listen to, which is kind of weird, definitely weird -- I'm not going to tell you what it is. Or the books I read. Even if the books I read aren't particularly embarrassing, you might think I'm one kind of person, whereas in fact, I'm much more than that. You just don't know me in all my rich and wondrous dimensions. Only my friends and then colleagues know me to that level.

So actually, this danger of being judged out of context is the same danger that Brandeis and Warren talked about in the most famous article on the right to privacy every written. This is in the Harvard Law Review of 1890, "The Right to Privacy." It begins, "The details of sexual relations are spread, broadcast over the columns of the daily papers. Column upon column is filled with idle gossip which can only be procured by intrusion upon the domestic circle." So what were Brandeis and Warren so upset about? Turns out it was a relatively innocuous event. It was a little gossip item in a Boston tabloid describing a lavish breakfast party that Warren had put on for his daughter's wedding. Innocent. It was like Vox. It wasn't salacious or secret. People confuse secrecy with privacy. Secrecy is just one dimension of privacy.

What Brandeis and Warren were upset about is the idea that intimate information, disclosed in the sympathetic confines of their aristocratic social circle, and understandable by that group, would be wrenched out of context and gossiped about by strangers. This is my answer to those who say, "Why be so alarmist? There's always been threats of technology to privacy." In Brandeis and Warren's era, it was the instant camera and the tabloid press. The new technologies of the Kodak camera led them to say that what used to be whispered from the closets is now shouted from the rooftops. True, technology has always changed, posing new challenges to privacy. My claim, though, is that there is a greater danger of being judged out of context in a world where so much of our public and private lives are lived in cyberspace, and therefore recorded and potentially monitored.

It use to be that gossip was, in Brandeis and Warren's day, exchanged in a drawing room and was quickly forgotten. Nowadays, we have the case of James Rutt, this Internet executive who tried to erase his own past. This is the guy the Washington Post wrote about. He spent, you know, a decade in "The Well," and AOL discussion group, and he was happy to talk among virtual friends about politics and music and his own weight problem. But suddenly he's appointed head of Netscape Solutions, I think, and he's worried that all of his gossip is going to be used against him by his business competitors and embarrass him. Rutt fortunately has a wonderful solution -- not law, but technology. "The Well," wonderfully had technology called Scribble that allowed him to go back and erase a decade of his own postings, reconstructing in cyberspace the kind of privacy that all of take for granted in real space. But in this virtual world where so much of our lives are recorded and monitored, we all have to think hard about how precisely we can protect ourselves.

So let me think a little bit about that problem right now. What is the best response to this problem of being judged out of context? Well, one response is that I'm just exaggerating, and I want you to tell me whether or not I've convinced you of this when we talk together. But there's a very respectable position that says, well, if a problem is being judged out of context, then more information is the answer. If all we know about Rosen is the weird music he listens to, well, let's know everything else that he listens to and buys. Let's actually put his Double-Click profiles up on the Web. Then everyone can look at him in all of his wondrous dimensions and will fail to misjudge him.

This view is interestingly put forward in a book by David Brin called The Transparent Society, which basically says, you already have no privacy; get over it. The battle is over. There are going to be cameras in the bedrooms. We saw that in Time Magazine last week which said that people now like having cameras in the bedrooms. So the only question is, who should have access to the cameras? And as long as the government doesn't control it and all of us have access to each other's information, we can happily spy on each other and you can enjoy each other in all of our glory, and there will be no danger of misjudgment.

I believe as passionately as I can that this view is blinkered and wrongheaded and inane and misguided. And here's some of the reasons. Even if you knew everything about me, even if you could do an Internet search on everything that I've ever said and done, you're run into the Steven C. Clemons's problem, which is that there is a whole lot of information, and all of us have limited attention spans. He had to introduce me, so he had no choice. But he only got up to page 2000, and wasn't able to do 2005. If my Internet logs were available, if the Double-Click logs were available on the Internet, you'd start clicking through it, and then pretty soon you'd lose interest, because they're not that interesting. You'd move to a more interesting Web site or click somewhere else. In a world where people are overwhelmed by information, the limits of other people's attention spans guarantee that there just isn't enough time to absorb the raw mass of data.

So for example, we have the interesting story of the Canadian Security Agency, which was doing these digital taps on people's phones; Sixty Minutes reported this. The poor mother is gossiping to her friend. She says that her son has bombed in his school play, and she's put on a list of suspected terrorists. This is the context problem. There, there was no problem of the data. It was all available. But the idiotic -- not the idiotic, the understandably limited resources of the worthy Canadian Security Agency couldn't actually read all the logs, so they started doing word searches, and they came up with this ridiculous problem of being judged out of context. So the context problem exists. Even if we have too much information, as well as too little, filtered or unfiltered information taken out of context is no substitute for the genuine knowledge that can only emerge slowly over time.

Slowly, over time. I want to talk about the temporal dimensions of privacy. Here's another reason why Brin and the transparency crowd -- these are these are the guys we are going to have to argue against, because I am telling you, the party of reticence that I'm arguing for, this is the embattled team. This position -- Brandeis and Warren's position, basically -- doesn't have a lot of friends. But I'm sure you are all on my side, so I am going to try to bring you around to the party of reticence.

Here's another reason. The character of our life, our private and public life, is transformed by the uncertainty about whether or not we are being observed. Where did I get the title for this book, The Unwanted Gaze? It comes from a lovely doctrine in Jewish law which deals with the law of what happens when your neighbor puts a window over your common courtyard and starts to observe you. And it's this doctrine called hezzek re'iyyah, which means "the injury caused by seeing," or "the injury caused by being seen." This is beautiful doctrine, because American law doesn't have a good notion of the indignity that occurs from being seen, because we think in terms of property all the time; you can't break into my house to get my diaries. Jewish law says that when your neighbor puts up the over the common courtyard, you can not only enjoin him from gazing at you, but you can order that the window be taken down, because it's the uncertainty about whether or not we're being observed that inhibits us and prevents us from acting freely in private places and causes us to lead more constricted lives. It's the uncertainty about whether or not we are being observed that changes the character of our existence.

And I think that chilling Time story about the exhibitionists who are blinkered enough -- they should be free to do this in a free society, but blinkered enough to live their lives under cameras, just to convey quite vividly the degree to which some of the character of our lives is changed by constant observations. So we just have to resist those cameras at all costs.

What can be done to resist this world of virtual exposure? Let's think of three possibilities: law, technology, and politics. First, let's think about law. Some legal protections could be resurrected. It's an outrage, and it's remarkable that in just years, this ancient prohibition against searches of private papers, a prohibition that was at the center of the Fourth Amendment to the Bill of Rights, which was reaffirmed in the in the Boyd case to include not only a search of private diaries, but even of private business papers -- that this ancient right has been whittled away over the past years without anyone even noticing it. And there's no reason that we couldn't resurrect some kind of protection for private papers. This would require a judgment. So, for example, it makes much more sense to say that the state should be able to search diaries in the Unabomber case, where the diaries were actually crucial to solving the case, than in a dismissed civil suit involving alleged perjury. In the old days, people would actually balance the seriousness of the crime against the intrusiveness of the search. So you need filtering mechanisms and special masters.

Here's a funny story. When Bob Packwood had his diaries searched, he was outraged; he objected; he cited the case of John Wilkes. He said, "This is my most intimate secrets," and he said, "The Senate should appoint a special master to decide what's relevant and what isn't." Who did he recommend? Ken Starr,
the respected former appellate judge who had been sort of a counsel for the Republicans, and unfortunately the Republicans thought that Starr was too liberal to do the job, and they turned over all the diaries. So there could be some kind of balancing that would resurrect Fourth Amendment protections.

There are other inadvertent legal forces that have contributed to this new monitoring regime, one of which is the expansion of sexual harassment law. Sexual harassment law, you know, forbids speech that creates a hostile or offensive working environment. And many of the justification that many companies have used to justify their Internet monitoring -- the American Management Association, incidentally, now tells us this year that more than half of U.S. companies monitor the Internet browsing and e-mail use of their employees -- one of the leading justifications is fear of liability for sexual harassment. Because of the uncertainty of hostile environment tests, companies have an incentive to monitor far more speech than the law actually prohibits. So this law could be refined. I won't give you the details of how I think it could, but I just want to flag the fact that this is an unintended effect of a very important legal area that might be refined as well.

Most directly relevant to, I think, your interests here today, we could think about global privacy protections. Europe has a principle that says that information disclosed for one purpose can't be disclosed for another without the consent of the individual concerned. And the Senate and the House are now considering various instantiations of this principle. The rather dreary policy debate that's going on, which
has interestingly moved much more quickly than any of us could have imagined, is between Opt-in and Opt-out. So what's the difference here? It's always hard to keep these straight. Opt-out says that the baseline is that companies can collect your data, and if you don't want them to, and then you click the little boilerplate and then they don't collect it.

I am not persuaded by the virtues of that approach. We all know about the effectiveness of the legal gobbledygook. People click past it as quickly as teenage boys click past the adult certification screens on adult Web sites. No one really reads that. And because of the counter-intuitive nature of privacy, that in fact it's just hard for people to realize exactly why it's important until it's too late -- my sense is that there should be a heightened degree of consent, something along the lines of Opt-In.

Opt-In says that they can't collect your data unless you affirmatively give consent. Now, I think Opt-In is especially important when we are talking about personally identifiable data. Cookies are maybe not so worth getting upset about, but Double-Click now is negotiating with the government and proposes to be able to have its dossiers after all, as long as people just have some kind of Opt-out provision. Not acceptable! Again, it's a very counter-intuitive notion. And people are very happy to just waive and alienate their privacy rights in exchange for free stuff, things like "Free PC" or for targeted ads.

Double-Click talks about the delirious convenience of targeted ads. Isn't it delightful, after you visit a site involving car manufacturers, to have helpful ads involving other cars or luxury boats come tripping into your living room? Isn't wonderful to save the convenience of not being bombarded with ads that you don't care about? I find it creepy. Other people may not share my intuitions. But I am saying to you that we want a high degree of consent before personally identifiable dossiers are collected, because once they are they can be misused, and people won't realize what they've done until it's too late. Employers and insurance companies and jealous ex-spouses, once these dossiers exist, there are there's really no telling what will happen to them. This is why creation of property rights and personal data may not be as effective as we might think, because people can alienate or sell their property rights, and then they can't get them back. Once I sell them to Double-Click, then it may be much harder for me to maintain some kind of limited control.

So this is just a fancy way of saying that I am not putting all of my cards in law as the mechanism that's going to save us. I do think that legal protections, basic constitutional protection, should restrain the state. But there are complicated legal issues in restraining private industry from collecting data, not least of which are First Amendment concerns. This is a yet another interesting sideline. But my friend Eugene Volokh at UCLA, a powerful libertarian, has made a strong case that would actually might violate the First Amendment, violate the commercial speech rights of Bell West, which wants to collect my selling information, my dialing information, and then sell it to its affiliates, which will then bombard me with targeted ads. Bell West, if it doesn't own the speech, the information, it's at least legally acquired, says my friend Volokh, and therefore, if we take the First Amendment seriously, there would be free speech concerns involved in restraining companies from resale -- an interesting area, very unsettled in the courts. So law is important. There are different aspects in which this battle has to be fought. But I don't think there's a global legal solution.

Next, there's technology. I like technological solutions a lot. Self-help is a great thing, so Scribble is a way of protecting ourselves. We can all go back and cover our tracks. I told in the Times piece the story of my student. He didn't want to be identified, so I called him by his first initial, K. So K is the rational man in this brave new world. He's a paranoid. He's absolutely mad. He wears green army fatigues and black boots and he spends all his time covering electronic tracks. He uses Scribble. He uses this Kremlin total delete program, which puts X's and O's all over his hard drive. He encrypts his e-mail. He has firewalls that tell any company that sends him a cookie, "Keep your cookies off my hard drive."

The guy is absolutely clinical. And he is rational to the core. All of us should be -- if all of us really informed ourselves, we would all be like K. I love K. So we too we would use anonymizers -- anonymous browsing technologies that wrap our browsing and e-mail requests in layers of encryption, and through a complicated process make it difficult to trace the original sender to the recipient, would cover our tracks in this way.

And there are others -- the technology is so interesting, and changing every day. A new company called Tacit Knowledge has just said, well, why should it be the case that e-mail is presumptively public, merely because it's stored on your employer's server? Let's architect the system so that all e-mail you send is presumptively private. It's put in a folder which can only be accessed with your personal password, not by your employer. If you want to make it public, you have to affirmatively give consent and put it in a public place. And then there are funky things that they do, like word searches of even the private folders that can enable you to send e-mail on related subjects to people who have written about what you are writing about, but people can refuse to accept this if they don't want it. So there are many ways of reconstructing in cyberspace the architecture that property used to ensure in real space, and we can be creative about this.

But ultimately I would feel that it would be a defeat for the team of reticence if all of us had to live like K, and if all of us had to wear green army fatigues and use secure total deletes and furtively anonymize our browsing technology. That would put us in the same category as citizens in the Soviet Union, who responded to constant surveillance by making telephone calls from public phone booths and paying in cash and basically exhibiting a bovine, bovine surrender to technological determinism. In the Soviet Union, privacy intrusions made citizens live like cows. I use this strong word here, because this is really what's at stake. And I think that American citizens should not have to live like cows. So technology is important, and you should inform yourself -- all of us should -- about the stakes. But I hope that we won't be driven to precisely this level.

So where does that leave us? I think it leaves us with politics. Politics turns out to be a great thing in protecting privacy. Let's think about the recent responses to the really intrusive efforts of the surveillers. When Double-Click proposed its creepy profiles, it was political protests that made them back down. And these political protests are being heard on both parties. Senator Shelby and other Republicans are among the most vigorous advocates of privacy, and the advocates of Opt-In. Our friend Congressman Barr has shown his finest colors, and is very much of a Fourth Amendment fan, and doesn't want government or private industry collecting his information. So politics can be effective.

Let's think of the other examples. I brought a Sprint Web phone. I resisted for a long time, because I haven't -- I am sort of Luddite technophobe, and I didn't want to be -- well, actually, I didn't want to be accessible. I didn't want to have to answer the cell phone. But I bought it so I could browse my new book on Amazon, because the cool wireless web sites enable you to check -- you have to check, like, seven times a day to see if the wave moves up and down. And this Sprint promptly disclosed my phone number to Amazon. The thing was architected so that they had my phone number. Outrageous. You don't have to do that in real space. There was mini -outcry, and the result was that Sprint, in a week, promised to change the wireless web phones and re-architected it not to do that.

Another example is Real Networks. When Real Networks announced that it was it had the capacity to match our listening habits on the most popular jukebox on the web with our actual identity through the use of a GUI, a globally unique identifier, assembled when we perhaps foolishly give our e-mail addresses to register for these new technologies, so in other words, they'll have the capabilities to match my e-mail address with everything I listen to -- this is the Monica problem -- people went nuts. And within an afternoon, they first said, "We've never actually united the data," but they promised to disable to the GUIs. I just heard the other day that there is some rumor that they may be re-enabling them under some new system.

So the privacy advocates are zealous, and they are our friends, and we should respect their vigilance. And so Real Networks, and then finally Intel. Intel was putting globally unique identifiers on its Pentium chips, making it possible to link every single word processing document I write with my actual identity. And people got angry about that, and they promised to disable those as well. So these are all examples of the beautiful effectiveness of politics. It was politics that forced Double-Click and Real Networks and Intel to back down. And my strong counsel to you and to all of us is to remain vigilant in the face of these new threats to privacy, never to surrender to technological determinism, and to insist on maintaining, against the odds in this brave new world of virtual exposure, the same privacy in the 21st century that we've long taken for granted in the 18th, 19th, and 20th. Thanks so much.