NETWORKING AMERICA: The Cultural Context of the Privacy v. Publicity Debates.

Implicit in the carving out of a private realm is the idea of personhood itself

One might imagine that nothing new could be said about privacy beyond the dictionary notion that it is something secluded from the sight, presence, or intrusion of others. But were that the case, the United States would not see its cultural elites embroiled in debates about the problems of privacy as they relate to publicity. For implicit in the carving out of a private realm is the idea of personhood itself. Slaves and serfs are defined in part precisely by an absence of any right of privacy, i.e., a realm exempt from the purview of slave owners and masters. In short, privacy is inherently a social concept, one that is understood to represent something other than the obligation to show and tell all. In this sense, the private also implies the secret, that which an individual may share - at his or her discretion - with a select few, but not with a generalized other.

If the Bill of Rights, or first ten Amendments to the United States Constitution, did not resolve the issue of the rights of an American citizen to privacy by restricting public admission to private dwellings, then the three Amendments that put an end to slavery, the thirteenth through fifteenth, did just that by investing full personhood on all Americans, whatever their racial backgrounds. For only a person could claim the privilege of privacy. It could never inherently be a condition of a corporation for example. The latter could have secrets, things not shared with other groups. But privacy is a privilege of personhood, which in turn is a right of citizenship.

Perhaps the most extreme representation of privacy as an "absolute right" of the free person is contained in Ayn Rand's book, The Fountainhead, much vilified by the literary class, much read by every other class. She has her hero say, "Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men." At the other end is the Deweyan notion of higher civilization as that which strives for the public good. By binding a community or a society into a whole that is greater than the private person, Dewey sought to realize a higher civilization that recognizes the unevenness of human evolution. In this vision, the need for public interaction pre-empts the issue of privacy, by permitting each individual to contribute his or her specific qualities and talents to make the society function properly. Indeed, so thoroughly is American society infused with this pragmatic sense of the public good that in a speech given in New York in 1933, George Bernard Shaw noted that "An American has no sense of privacy. He does not know what it means. There is no such thing in the country." Allowing for Shavian exaggeration, it is clear that the issue of the private and the public is deeply enveloped in the notion of the American society as the embodiment of the good society writ large.

As a matter of record, both these visions of the private and public are built into the fabric of the American Constitution. The public aspects are well known: everything from coining money and establishing post offices to regulating commerce. Most relevant is the inclusion in Article One, Section Eight (which established copyright protection) of the phrase, "to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The framers of the Constitution were disquieted by the emphasis on public rights and obligations to the degree that the first ten amendments, passed in 1791, provide a veritable Bill of Rights - that is, rights reserved for the private person. No Amendment is more forceful or elegant than the Fourth. It plainly states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The rub, the wrinkle, comes when searches and seizures are less direct or physical, and more as a consequence of information management and plucking private information from the Internet web sites.

Even this is not entirely a new concern. With the first United States Census of 1790 - and here it might be duly noted that the amendments in the protection of privacy were ratified one year later - issues emerged as to who is to be counted, and in what sort of proportion. Were slaves to count as full persons, three-fifth of a person; were masters to count as one or if landholders, more than one? To say the least, such issues far from disappearing over the years, only grew. And, as we now look back and understand, not always in a pacific manner. So the public issues we are taking up today are as old as the nation but also as new as the coming millennium. USA Today reports that employers are giving millions of employment and salary records to outside companies which share the data with landlords and others. Companies such as Walgreens and Boeing have been so bogged down with requests by bankers and landlords and others that they have hired firms specializing in employment verification. These firms have quietly amassed more than 28 million records, covering a fifth of the American work force. The concern for privacy has thus moved from the dusty realm of legal theory to the glare of public policy.

However, instead of laying a theoretical groundwork for the social bases of this breakdown in privacy as felt need, our political leaders and their academic acolytes have conflated the issue into the need for legislative relief. In 1999 alone, the national legislative agenda lists the following ten pending "acts": Financial Services Act, Financial Information Privacy Act, Personal Privacy Protection Act, Integrity in Voter Registration Act, Freedom and Privacy Restoration Act, Consumer Intent Privacy Protection Act, Collections of Information Antipiracy Act, Patient Protection Act, Fraud Protection Act, Transportation Equity Act. One shudders to think what the year 2000 will bring. For behind each of these proposed pieces of legislation is the enlargement of the federal bureaucracy. Either a new agency will form, or there will emerge new divisions of already established agencies. The mandating of privacy from above replaces even the remote sense of personal choice and responsibility.

We thus rudely enter the present-day world. But we should do so with the full knowledge that advanced networking does not change the classical problems of civilization and society. It does, however, compel ever more serious thinking on how the rights of the person - privacy - come up against the demands of the public. Technology advances by leaps and bounds, morality advances very slowly, indeed, perhaps not at all. Thus, what we are faced with is a growing disparity between invention, innovation, and discovery in the material realm, and the desperate clutching of the individual in the spiritual realm. Let me emphasize that I do not intend to advocate a Manichean struggle between the private and the public, or the social and the personal. But it seems evident that all is not well in this larger realm. Americans in the era of the Internet live in a world of parallel rights, and what we seem to search for are parallel obligations.

II

In the present climate, a polarization of American public opinion is inevitable. On one side, we have those who view the Internet as a direct assault on privacy. In its starkest terms, we have thinkers like Amitai Etzioni who argue that "Nineteen eighty-four is here, courtesy of Intel, Microsoft, and quite a few other corporations." He goes on to urge legislation establishing an international privacy regime that would hold "that any personal information about the citizens of its member countries cannot be used without the citizen's consent." Joining this chorus of those who would "liberate cyberspace" are Simon Davies and Ian Hosein, who claim that "liberty [itself] is on the line." From their vantage point, the struggle is between "privacy enhancing technology" rather than "technologies of control." Since we are nowhere told just how technologies as such can enhance privacy rather than control, we are left with a sentiment rather than a new science. However, it is plain that concerns about invasive communication technologies are deep and widespread.

On the other side are those who argue that privacy may be more perilous than the lack of it under given circumstances. Because serial numbers were built into the Pentium III chips, the computer hacker who reportedly created the virus called "Melissa" was caught. Further, electronic identity is important for providing location information to the Federal Communications Commission, and above all, information to medical personnel on the history of patients with cardiac and cancer ailments. Instead of starting de novo, a medical team can call up records that can save not just time, but lives. Patient data, when collated, can also establish epidemiological patterns that advance the cause of medicine in general. As one reporter makes clear, the consumer signals are by no means uniform. A Business Week report notes that "one day, they are up in arms over Intel's ability to track Web surfers through identifying codes on their new Pentium chips. The next, thousands race to trade their names, income levels, and hobbies in return for a Free-PC with built-in 'market to one' advertising."

What we witness at the level of public opinion is a desire for privacy and also maximum data and information. As John Markoff makes plain in a series of articles, "[F]rom computers to cellular phones to digital video players, everyday devices and software programs increasingly embed telltale identifying numbers that let them interact." Whether such digital developments constitute a threat to privacy or are simply the price of advanced computer systems is the stuff of debate. One problem is that Constitutional safeguards against the physical invasion of a person's home or office are difficult to extend to the space of the computer in private homes and hands. Scott McNealy, the chief of Sun Micosystems, speaks of Americans having "zero privacy," a condition that is so ubiquitous that we should "get over it." That we should take as a given the idea of privacy as an archaic concept - at least in the highly advanced industrial societies.

III

In such a world of polarized options and visions, I would argue that we need fine distinctions rather than crude journalistic jeremiads. The technology at this stage must be able to distinguish between American national security and personal anonymity for Americans, corporate needs versus personal identity, corporate mergers versus group privacy. For example, one bitter struggle was the proposed purchase of the Ingram Book Group by Barnes & Noble. It would have given the latter access to the sales data of independent bookselling competitors. This could have allowed the chain to stock its stores with popular books that might be in short supply while forcing a competitor like Amazon.com to wait for delivery of the same title. In this instance, the parties to the merger backed away, realizing that either through court action or public opinion, this sort of monopolization of ideas would have failed in its purpose. Such risks and dangers of monopolization can be multiplied tenfold, depending on the industry involved. But the point is the same: group privacy or "huddling rights," no less than personal privacy, may be eroded by the Internet and the existence of a variety of information resources. Thus we find that the erosion of privacy is not simply a matter of individuals, but spills over into the nature of business competition as a whole. The struggle between Microsoft and Netscape for shared access to high technology indicates how this struggle for private control spills over into the largest Internet arena - the selection of servers in order to participate in the global economy.

In such a polarized context, we need finer juridical distinctions, rather than journalistic outcries for legislation or engineering devices that will limit and ultimately impede technological progress as such. For example, we need a conceptual map to distinguish between national security and personal anonymity; we need measures of corporate needs versus personal identity; and we need corporate merger requirements that do not intrude upon group privacy - as in the struggle between chain-owned stores and individually-owned stores and shops. In a democratic society, there is no simple solution resolving conflicts between public interests and personal claims - these are constantly being mediated and refined. Indeed, the danger is a fixed and final resolution that ultimately could result either in some form of dictatorship at one end or anarchy at the other. The social order mediates the claims of the State system. The common pool of democratic theory holds both state and society in check.

In this type of dynamic and unstable situation, what we are left with are social preferences rather than policy pronouncements. My own preference is toward strict Constitutionalism: to leave to private citizens all of those rights that are not explicitly stated as belonging to the state or government as such. In this, we should remember the constitutional delegation to the people of all those rights not lodged in government by law. My great fear is not so much of autocratic government encroachment, but of voluntary surrender of privacy as a right possessed by individuals. The spate of talk shows that continually reveal personal sexual and social habits is an indicator of a grave situation, one that harkens back to Rand's fears of savagery and Shaw's unnerving observations on America.

Alexis de Tocqueville long ago pointed out in Democracy in America a difference between Europeans and Americans: the reticence of the former to speak freely for the record, and the willingness of Americans to give their opinions on a wide range of issues, even those of which they know little. At our century's end, not only tendering opinions, but also baring personal narratives in public places has become a problem. The endless stream of television programs which feature revelations and self-revelations of sexual preferences and longings, marital breakdowns and extramarital affairs, all move America far from merely registering public opinion surveys and into expressing in public what in all past eras would have been viewed as sacrosanct and privileged. In part, the English tradition, or what is left of that tradition, of a high wall between the public and private has broken down. In part too, such public expression of private woes is an expression of dissatisfaction with the rewards of the private, non-expressive life. I would suggest that it is time to recognize limits to this openness of Americans. The high wall of separation between the private and the public is itself a protection of liberty that extends far beyond mores and customs. The habits, customs, and mores of individuals, even more than juridical and legal safeguards, are the best defenses of privacy against incursions of presumed public needs in the cyberspace age. In brief, the new technology poses with stark relief problems posed by the old totalitarianism.

Privacy issues, elevated to a fever pitch by the infusion of high technology bonded by networking, will sink back into a secondary realm when individuals recapture the first principles of classical ethics and constitutional law. The founding fathers had it fight: this is not a question of choice, either for privacy or for publicity, but of safeguarding the person while extending the realm of information and knowledge. In this, they were following the precepts of the Hebrew Prophets. As God reveals and conceals, so human beings disclose and withhold. Taken to the extreme, privacy results in total isolation and denies the social bases of human existence. At the other extreme, unlimited communication and the end of privacy, leaves the human subject depleted of self, of personality. Both unbridled solipsism and pure collectivism are forms of spiritual decay and ultimately death.

The tensions exacerbated by the new information technology illustrate the strains of maintaining some semblance of balance within American democracy. Seen in this light, information technology is another classic case of advances and breakthroughs that can be used for constructive or destructive purposes. It is the terribly slow pace of ethical responsibility for self and others, rather than the amazingly fast pace of information technology in American society that needs close and serious examination. For while the content of the privacy versus publicity debate is universal and long-standing, its context has become uniquely Americanized and short-fused.

SELECTED READINGS

Baig, Edward C., Marcia Stepanek, Neil Gross, "Privacy." Business Week. April 5, 1999 pp. 84-90. See also, "Employment Database New Privacy Issue." USA Today. July 26, 1999.

Carvajal, Doreen, "Book Chain's Bid to Acquire Distributor is Under Fire." The New York Times, March 26, 1999.

Davies, Simon, and Ian Hosein, "Liberty on the Line." Liberating Cyberspace: Civil Liberties, Human Rights and the Internet. London: Pluto Press, 1999. pp.68-80.

Etzioni, Amitai, "Privacy Isn't Dead Yet." The New York Times. April 6, 1999.

Markoff, John, "Growing Compatibility Issue: Computers and User Privacy." The New York Times. March 3, 1999.

Markoff, John, "When Privacy Is More Perilous Than the Lack of It," The New York Times. April 4, 1999.

Peterson, Chris, I Love the Internet, But I Want My Privacy. Rocklin, Calif.: Prima Publishing Company, 1999.

SELECTED ANTHOLOGIES

Erman, M.; M. Williams and M. Shauf (eds), Computers, Ethics and Society. New York: Oxford University Press, 1997. 340 pages.

Johnson, Deborah and Helen Nissenbaum (eds), Computers, Ethics and Social Values. Englewood Cliffs, NJ. Prentice Hall, 1995. 714 pages.

Moore, Adam (ed), Intellectual Property: Moral, Legal and International Dilemmas. Lanham, Maryland: Rowman & Littlefield, 1997. 387 pages.

Irving Louis Horowitz is the author of Communicating Ideas (Oxford University Press) and has written widely in the communication and social scientific journals on the subjects of publishing, copyrights, and the new technology. He is the chairman of the board at Transaction Publishers and Hannah Arendt distinguished university professor of sociology and political science at Rutgers University. This paper is based on keynote remarks delivered at a policy and research issues conference on the subject of personal privacy and information policy, held at Rutgers, The State University of New Jersey, on June 14th, 1999. Sponsored by the School of Communication, Information and Library Studies and the Scholarly Communication Center. The author reserves all rights to the use of this statement.