Thursday, November 9, 2000

LOGGING IN WITH . . . Jeffrey Rosen Are You Being Watched? A Law Professor Worries as Surveillance Spreads By SCOTT CARLSON The very public personal problems of President Clinton got Jeffrey Rosen thinking about privacy issues in American law and politics. Mr. Rosen is an associate professor at George Washington University's Law School, and he also covers legal affairs for The New Republic. He saw Kenneth Starr's team using technology -- DNA tests, wiretaps, the retrieval of e-mail messages, and so on -- to scrutinize the president's personal life and that of a young White House intern. The scandal influenced Mr. Rosen's new book, The Unwanted Gaze, which examines how legal, technological, and cultural shifts have undermined American privacy. Q. In an academic environment, faculty members and students might be horrified if they found out that administrators knew about some of the things they did online. Are people who are worried about privacy better off pushing for more privacy protection in institutions? Or should they just get accounts at home and restrict their institutional computing to things about which they have no privacy fears? A. This is a question of deep interest to me, because I do quite a bit of writing at home on a computer supplied by George Washington University Law School. The first thing that people can do is inform themselves about what sort of information the institution is collecting. Our excellent and discreet director of computer services explained that although he has the technical capacity to read my e-mails as I send them, he has made a policy decision to respect faculty members' privacy. My law school has decided not to install the tracking software that can actually record and monitor your Web activity in real time. So these are policy choices that each institution makes. You have to decide whether or not to respect privacy, and I'm delighted that mine has. I don't think that we should have to live in a world where all private browsing is done on private accounts. It's a question of what decision each institution will make that will determine how privacy is respected. We have a very different case at Harvard, where the respected former dean of Harvard Divinity School was fired for downloading legal pornography in his own home on a university computer. A technician observed some material on his hard drive in the course of making a repair, gossiped to his superiors, and the news traveled all the way up to the president of Harvard, who asked the dean to step down. I find it very hard to understand a university policy that prevents faculty members from downloading, as Harvard calls it, "inappropriate material." Perhaps the divinity schools are different, but it's hard to imagine the dean being fired for downloading Snoop Doggy Dogg. It's inconsistent with notions of academic freedom that most of us take for granted. I hope that unfortunate case will prompt universities to think more systematically about exactly how much monitoring is consistent with academic freedom and make them reject the notion that merely because a university owns a computer, it has unfettered discretion to monitor everything that faculty members read and browse. Q. Do you think that Americans are becoming accustomed to the notion that living in the information age means that they have less privacy? A. We are just beginning to recognize the scope of surveillance, both in cyberspace and real space. It's undoubtedly true that with pervasive surveillance comes a lowering expectation of privacy. We've seen these unfortunate Supreme Court cases which have held that, merely by engaging in monitoring, employers can lower their employees' expectations of privacy in ways that give them even more discretion to monitor. It's a fallacy of technological determinism that as surveillance becomes more intrusive, people become more used to it. So the court has held in a series of silly opinions that it's fine to have the police take a helicopter and fly over your backyard with binoculars, because any member of the public could theoretically fly over your backyard with binoculars -- we have to assume the risk that the police or our fellow citizens aren't doing so. Rather than being slaves to technological determinism, we have to make a normative choice about how much privacy people in a civilized society should demand. Q. Do you think that some of the complacence about the erosion of privacy has to do with the attitude that if you're concerned about privacy, you're probably doing something that you shouldn't do anyway? A. Absolutely. This is the counterargument that I hear all the time: "Why should I be concerned about privacy if I have nothing to hide?" I took the title of my book, The Unwanted Gaze, from a wonderful doctrine in Jewish law that describes the intrinsic indignity that occurs when people are observed against their will. It's the doctrine that describes what happens if your neighbor puts up a window observing you in a common courtyard. Not only are you allowed to enjoin your neighbor from observing you, but the window has to come down whether or not you object, because it's uncertainty about whether we're being observed that causes us to lead more restricted lives. They call it hezzek re'iyyah -- the indignity of being seen. It's an indignity to live in a world described in The Truman Show, where you're constantly being watched by cameras without your knowledge. It's characteristic of totalitarian societies to live in a society without curtains. This idea of a dignitary injury is something with which we are not familiar and we probably have a little trouble discussing. This is a culture of exposure, so it's easy to say, "Why should I care about privacy when I have nothing to hide?" But with a little reflection, we can all imagine the corrosive effects of low-level, pervasive surveillance. Q. Do you favor technological solutions or legal solutions to the privacy problem? A. We clearly need a mix. It's a complicated challenge and has to be addressed on many different fronts, so a mix of law and technology should be effective. I'm certainly not a believer in law as a panacea. There's no single privacy law that we could pass that would solve the problem. In the immediate term, I'm very much a fan of technological self-help, just because it's increasingly available and easy to use. It's important for citizens to educate themselves about what data are being collected and to take steps to protect themselves. It's a complicated problem, and at each level we'll have to think about the appropriate mix of law and technology that can best address it. But there's also a political response. Politics was the response to DoubleClick, the largest Internet advertising program, when it proposed to start linking real-world identities with records of browsing online. There was a political outcry, and DoubleClick was forced to retreat. So that's a good example of how political attention and zealousness can insure that really intrusive data aren't collected in the first place. Easy-to-print version E-mail this article

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