Balancing Acts

Strossen and Kozinski

Balancing Acts

Strossen and Kozinski

Balancing Acts
An email conversation about the news of the day.
Sept. 22 1998 6:45 PM

Strossen and Kozinski

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Dear Alex,

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In terms of understanding and counteracting online privacy hazards, your sons should not be taken as typical of Internet users (or, having spent time with one of them, anyone else! And that's a compliment!). Beyond the sources I previously cited , let me add some anecdotal evidence of my own. Last week, I spoke at a high-level conference sponsored by Upside, the magazine aimed at computer-company executives. Audience members were, accordingly, at least as sophisticated about computers as the average cyber-surfer. Still, when asked if they regularly encrypt their cyber-communications, almost none responded affirmatively, whereas, when asked if they would like to have an encryption option available by default, all responded affirmatively. The point is that, even among those who cherish their privacy and are aware of online privacy threats, the large majority may well (however reluctantly) decide that it is simply too burdensome to take the necessary steps available to them to try to counter those threats. But, under our current (non) privacy constitutional doctrine, this inaction then operates as a waiver of privacy rights–for everyone (including your sons).

One of the reader e-mails that Slate forwarded to us pursued an issue that I had flagged in my previous posting: whether public figures should have fewer privacy rights than anyone else. (According to a story in today's New York Times, the top leaders of all the major German parties, "disgusted" by yesterday's Clinton broadcast, concurred in "the need for public officials to retain a sphere of privacy.") I think the answer is "Yes," because of the individual's deliberate decision to participate in the public sphere, and the correspondingly greater public interest in receiving information about him/her. In fact, because of these First Amendment considerations, the ACLU disfavors any legal sanction for disclosing information about public figures.

For example, we have opposed the anti-Paparazzi laws sparked by Princess Diana's death. (Now we've both invoked Windsors!) But that does not mean that we should not criticize the press for disclosures that we consider inappropriate. There's even a civil libertarian rationale for protesting these privacy invasions, since (as I've previously noted) each successive invasion lessens the "reasonable" expectations of privacy against which any of us can seek judicial protection.

The new subject you raise also involves important First Amendment issues. The ACLU has supported laws that protect religious freedom (most recently, the Religious Freedom Restoration Act), although you're absolutely right that we must take care that such laws not violate the overarching constitutional mandate of government neutrality toward religion. It can be a tightrope sometimes--to avoid either favoring or disfavoring religion. Ironically, in this context, some have charged that the ACLU has unduly favored religion. I say "ironically," because the Christian Coalition and other "Religious Right" organizations demonize us in their fundraising letters as the "Anti-Christian Liberties Union." Well, if you're trying to walk a fine line, I guess criticisms that you've stepped over it in two opposite directions provide some indication that you're on course!

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.