Is privacy possible in a digital age?

Why is someone doing an Internet search on you so incredibly creepy? My friend ran an Internet search on the guy she was set up on a blind date with 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. 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. I think it's creepy 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.

Monica's Story is an important work of constitutional scholarship. What Monica says is that the part of the Starr investigation that she found most invasive wasn't the subpoenaing of her mother or her friends. 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. It was such a violation, she said "I felt like I wasn't a citizen of this country any more". What privacy protects us against is the danger of being judged out of context, of having isolated bits of information intended for one audience, recorded and then taken out of context by another audience and potentially misinterpreted.

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". Brandeis and Warren were upset about a little gossip item in a Boston tabloid describing a lavish breakfast party that Warren had put on for his daughter's wedding. What Brandeis and Warren were upset about was 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". 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.

We have the case of James Rutt, an Internet executive who tried to erase his own past. He spent a decade in "The Well", an 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. "The Well," wonderfully had a 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 us take for granted in real space.

What is the best response to this problem of being judged out of context? Well, one response is that 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 . 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. There are going to be cameras in the bedrooms. We saw that in Time Magazine last week. It said that people now like having cameras in the bedrooms. So the question is, who should have access to the cameras? 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 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. Here are some of the reasons. Even if you knew everything about me, even if you could do an Internet search on everything I've ever said and done, you'd start clicking through it and then pretty soon you'd lose interest, because it’s not that interesting. You'd move to a more interesting Web site. 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 digital taps on people's phones . 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 Canadian Security Agency couldn't actually read all the logs, so they started doing word searches. Even if we have too much information, filtered or unfiltered information taken out of context is no substitute for the genuine knowledge that can only emerge slowly over time.

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 called "the injury caused by seeing," or "the injury caused by being seen" that deals with the law of what happens when your neighbor puts a window over your common courtyard and starts to observe you. Jewish law says that when your neighbor puts up the window 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.

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 remarkable that this ancient prohibition against searches of private papers has been whittled away over the past years without anyone even noticing it. There's no reason that we couldn't resurrect some kind of protection for private papers. 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.

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 forbids speech that creates a hostile or offensive working environment. The American Management Association 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. Most directly relevant is global privacy protection.

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. The rather dreary US policy debate that's going on is between Opt-in and Opt-out. Opt-out says that the baseline is that companies can collect your data, and if you don't want them to, you click the little boilerplate and they don't collect it. I am not persuaded by the virtues of that approach. People click past the legal gobbledygook as quickly as teenage boys click past the adult certification screens on adult Web sites. 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. Opt-In is especially important when we are talking about personally identifiable data. I am saying to you that we want a high degree of consent before personally identifiable dossiers are collected, because once these dossiers exist, there's really no telling what will happen to them. This is why creation of property rights for 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 it may be much harder for me to maintain some kind of limited control.

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 the New York Times Magazine the story of my student. He didn't want to be identified, so I called him by his first initial, K. 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 a 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".

And there are others -- the technology is so interesting, and changing every day. A new company called Tacit Knowledge Systems has just said, well, let's architect a system so that all e-mail you send is presumptively private. It's put in a folder that 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.

However, ultimately I would feel that it would be a defeat for the team of reticence if all of us had to live like K. 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 surrender to technological determinism.

So where does that leave us? 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

I bought a Sprint Web phone. I resisted for a long time because 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, 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 a 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.

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. People got angry about that and they promised to disable those as well. These are all examples of the beautiful effectiveness of politics. It was politics that forced 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.