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PRIVACY Volume 68  No. 1 (Spring 2001) Proceedings of the conference at New School University Arien Mack, Editor

Table of Contents    Notes on Contributors     Ordering information

Editor's Introduction

    The papers in this issue are versions of the presentations given at the Social Research conference on Privacy, held at New School University in October 2000. This conference was the seventh in the conference series we initiated in 1988, and this issue is the seventh that has been devoted to papers from these conferences. The mission of this series is to foster discussion of matters of grave public interest in light of their often neglected and generally illuminating historical and cultural contexts. Thus, for example, past conferences have dealt with the AIDS Crisis ("In Time of Plague"), homelessness, ("Home: A Place in the World"), and hunger ("Food: Nature and Culture"). The choice to organize a conference on privacy seemed a natural extension of the series, since questions surrounding what should be private and what public are among the most pressing of those now confronting us.

    Even in the short span of the last 30 to 35 years, our conceptions of what should be kept private have undergone large and visible changes. "MonicaGate" offers one all too obvious example. In the early 1960s, when President Kennedy was in the White House, open discussion of his sexual conduct was off-limits—it was considered a private matter. Not so for Senator Gary Hart, whose run for the presidency not so many years later ended abruptly with the press disclosure of his sexual misconduct, and emphatically not so for our most recent president, who was impeached for his. What had been off-limits and private a short time ago has become fair game and open season for the press, which now behaves as if it has an obligation to inform the public about these matters.

    While these may be the most recent flagrant and well-publicized illustrations of the rapid shift in our  conception of privacy, there are many others. The "outing" of gays, which highlights the current tension between private and public discourse, is another example. A more subtle example is the shift in forms of personal address. Where a short time ago we were introduced by our titles (Mr., Mrs., or Miss) and surnames, perfect strangers now address us by our first names. The hierarchy of social distance, which distinguished our associations with familiars and members of our private lives from our interactions with those we did not know, whom we encountered in the public sphere, has been eclipsed by the false intimacy of casual relations.
Of course, there is no doubt that the distinction between private and public is the outcome of continuous cultural negotiation rather than an enduring classification. However, even if the boundaries between these two are in flux, the distinction continues to be critical, for where nothing is private, democracy becomes impossible. Privacy is not only threatened by the voracious publicity culture in which we live. It is also threatened by the accessibility and transferability of information enabled by the new electronic technologies that flourish unrestrained in a culture in which the limits of privacy already have been eroded. Because this instant access and instant transferability of information defies all boundaries, it easily and effortlessly penetrates the boundaries between self and other, one organization and another, one state and another, and perhaps most uniquely, one nation and another. Wherever the equipment and the power exist, this avalanche of information is available—including an alarmingly large portion of what, not long ago, would have been considered private and privileged: our medical records, our charge-card records, the records of many businesses and organizations, and even government secrets.

    As a consequence of all this, we are confronted today with a situation seemingly without precedent. Moreover, while this situation is challenging enough at the national level, it is far more challenging internationally—more difficult even than controlling the flow of arms or atomic know-how, which we have been unable to deal with successfully.  However, it is worth remembering that, although new technologies seem to be changing our conception of privacy beyond recognition, history belies the uniqueness of this experience. The story of the Garden of Eden depicts a beginning in which nothing was private, not even
our "private parts." It was only after Adam ate from the tree of knowledge that the distinction between public and private emerged. With the Fall came both the sense of shame and the idea of privacy. Or, if we look back to the time before design and technology allowed houses to have many different rooms, there was virtually none of the kind of privacy we are now so accustomed to within our own homes. Changes in architecture accompanied or reflected changes in what was private. At a very different level, the apparently simple matter of how we dress reflects different and changing views of what we believe ought to be invisible to others—or, in other words, private. A stark example of this is seen in the contrast between the dress of women on American and European beaches and that of Islamic women, or between the concealing styles of our own earlier eras and our contemporary dress. Finally, to cite one other well-known historical example, it was only with the Reformation that, for Christians, religion became a private matter.

    So, at a time when our notions of privacy seem to be under assault from many different directions, and new technologies seem to be threatening privacy’s very core, a public forum to discuss these matters and to reflect on the evolution of our conceptions of privacy as well as those of other cultures with different histories seemed in order.  While the papers in this issue are primarily concerned with privacy from the perspective of the United States, two future issues will explore privacy from quite different perspectives: one from the perspective of the former communist countries now 1l years into their transition to democracy and the other from that of the Middle East, with an emphasis on Islamic cultures. Both these forthcoming issues will be based on additional privacy conferences we are organizing in collaboration with colleagues abroad. Together we hope these three issues will provide a rich picture of the various and complex histories of the meanings of privacy.

    Editor’s Introduction                                                 Arien Mack                                                              v

    Introduction:
    Private and Public                                                 David Bromwich                                                      3

    The Language of Privacy                                      John Hollander                                                         5

    Privacy in Antiquity                                              Joseph Rykwert                                                         29

    Privacy and Documentary
    Filmmaking                                                             Frederick Wiseman                                                   41

    Introduction:
    The Legal Construction of Privacy                      Frederick Schauer                                                     51

    Privacy and the
    American Constitution                                       David J. Garrow                                                         55

    Is My Body My Property?                               David A.J. Richards                                                  83

    Threats to Privacy                                           Charles Nesson                                                          105

    Introduction
    Privacy and the Self                                         Louis Menand                                                           117

    Sexuality, Shame, and Privacy
    in the English Novel                                        Ruth Bernard Yeazell                                                 119

    How Publicity Makes People Real                     David Bromwich                                                       145

    Women's Secrets and the Novel:
    Remembering Mary McCarthy's
    The Group                                                      Nancy K. Miller                                                       173

    Introduction
    Invasions of Privacy                                         George Kateb                                                         203

    Out of Context:
    The Purposes of Privacy                                  Jeffrey Rosen                                                          209

    Free Speech and the
    Social Construction of Privacy                          Frederick Schauer                                                 221
 
 

    Introduction                                                      Jean L. Cohen                                                     235

    Privacy in a Totalitarian Regime                         Fatos Lubonja                                                     237

    Privacy in the Decent Society                             Avishai Margalit                                                 255

    On Being Watched and Known                         George Kateb                                                      269

    Introduction                                                      Kenneth Prewitt                                                 299

    Is Privacy Now Possible? A Brief
    History of an Obsession                                    Anita L. Allen                                                     301

    Is Privacy Still Possible in the                            Jerry Berman and
    Twenty-first Century?                                       Paul Bruening                                                     306

    The Necessity of Privacy                                  Jean L. Cohen                                                     318

    Is Privacy Now Possible?                                Theresa M. McGovern                                        327

    Secrets for Sale                                               Maggie Scarf                                                       333
 
 

Anita L. Allen, Professor of Law at the University of Pennsylvania School of Law,  is the author of Privacy Law (1999).  She has also published numerous articles on topics that include genetic privacy, constitutional privacy, women and privacy, and affirmative action.

Jerry Berman is founder and Executive Director of the Center for Democracy and Technology (CDT) and President of the Internet Education Foundation.  He also chairs the 120-organization Advisory Committee to the Congressional Internet Caucus.

David Bromwich, Housum Professor of English at Yale University, writes frequently on literature and politics.  His books include Disowned by Memory: Wordsworth's Poetry of the 1790's (1998) and an edited collection of Edmund Burke's writings, On Empire, Liberty, and Reform (2000).

Paula Bruening is Staff Counsel for the Center for Democracy and Technology, where her work focuses on privacy and the First Amendment.

Jean L. Cohen is Professor of Political Science at Columbia University. She is the author of Class and Civil Society: The Limits of Marxian Critical Theory (1982) and co-author of Civil Society and Political Theory (1992).  Her latest book Sex, Privacy, and the Constitution: Dilemmas of Regulating Intimacy, is forthcoming in 2002.

David J. Garrow, Presidential Distinguished Professor at Emory University School of Law, is the author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (1994) and Bearing the Cross: Martin Luther King, Jr. and the Southern Christian Leadership Conference, for which he received the 1987 Pulitzer Prize in biography.

John Hollander, Sterling Professor of English at Yale University, is the author of sixteen volumes of poetry and seven books of criticism.  He is former Chancellor of the Academy of American Poets and Secretary of the American Institute of Arts and Letters.

George Kateb is William Nelson Cromwell Professor of Politics and Director of the Program in Political Philosophy at Princeton University.  His books include The Inner Ocean: Individualism and Democratic Culture, winner of the 1994 Spitz Book Prize by the Conference for the Study of Political Thought.

Fatos Lubonja, Editor-in-Chief of Perpjekja [Endeavor] in Albania, is the author of four books, including  Ne Vitin e Shtatembedhjete ([In the Seventeenth Year], 1994), a diary of his seventeenth year in prison, and the winner of a 1997 award from Human Rights Watch for his work as a human rights activist.

Avishai Margalit, Schulman Professor of Philosophy at the Hebrew University of Jerusalem, is the author of three books, including The Decent Society (1996).  He is a frequent contributor to The New York Review of Books and is among the founders of Peace Now.

Theresa M. McGovern, founder The HIV Law Project, Inc., was its Executive Director for ten years. She is an Assistant Professor at Columbia University’s School of Public Health and is an Individual Project Fellow at the Open Society Institute.

Louis Menand, Professor of English at the Graduate Center of the City University of New York, is a contributing editor of The New York Review of Books.  He is the author of The Metaphysical Club (forthcoming, 2001) and coeditor of The Cambridge History of Literary Criticism, vol. 7 (2000).

Nancy K. Miller is Distinguished Professor of English and Comparative Literature at the Graduate Center of the City University of New York. She is the author, most recently, of Bequest and Betrayal: Memoirs of a Parent’s Death (2000).

Charles Nesson is William F. Weld Professor of Law at Harvard Law School and Director of the Berkman Center for Internet & Society. He has moderated several television programs, including the PBS series The Constitution: That Delicate Balance and CBS’s Eye on the Media: Media and Business.

Kenneth Prewitt, incoming Dean of the New School University’s Graduate Faculty, was Director of the United States Census Bureau for two years. He is the author or co-author of a dozen books and more than fifty contributions to professional journals and edited collections.

David A. J. Richards is Edwin D. Webb Professor of Law and Director of the Program for Study of Law, Philosophy, and Social Theory at New York University’s School of Law.  He is the author of dozens of articles and ten books, including Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law (1998).

Jeffrey Rosen, Associate Professor at George Washington University Law School, is Legal Affairs Editor of The New Republic and author of The Unwanted Gaze: The Destruction of Privacy in America (2000).   His essays and book reviews have appeared The New York Times Magazine and The New Yorker.

Joseph Rykwert is Paul Philippe Cret Professor Emeritus of Architecture at the University of Pennsylvania.  His most recent book is The Seduction of Place (2000).

Maggie Scarf is Writer-in-Residence at Jonathan Edwards College, Yale University, and Senior Fellow at the Bush Center in Child Development and Social Policy at Yale.  She is the author of Intimate Worlds: Life Inside the Family (1995) and Intimate Partners: Patterns in Love and Marriage (1987), a New York Times best seller.

Frederick Schauer, Academic Dean and Frank Stanton Professor of the First Amendment at Harvard’s  John F. Kennedy School of Government, is a Fellow of the American Academy of Arts and Sciences.  His publications include Free Speech: A Philosophical Enquiry (1982), and Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991).

Frederick Wiseman, an independent filmmaker and the General Manager of Zipporah Films Inc., has made 31 documentary films, including Titicut Follies (1967) and Near Death (1989).  His awards include the Irene Diamond Life-Time Achievement Award from the Human Rights Watch Film Festival (2000).

Ruth Bernard Yeazell is Chace Family Professor and English Department Chair at Yale University.  She is the author of Harems of the Mind: Passages of Western Art and Literature (2000) and Fictions of Modesty: Women and Courtship in the English Novel (1991).