Is That the Way the Cookie Crumbles?

Strossen and Kozinski

Is That the Way the Cookie Crumbles?

Strossen and Kozinski

Is That the Way the Cookie Crumbles?
An email conversation about the news of the day.
Sept. 22 1998 12:07 PM

Strossen and Kozinski

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Both our dialogue and this morning's newspapers resonate with questions of public-versus-private in two senses: (1) When should government regulate private conduct to secure to individuals the same sorts of freedoms (including privacy) that the Constitution promises concerning public/governmental action? (2) What are the bounds of the private sphere that all individuals should be entitled to secure against unwanted intrusions by anyone, from government agents to private snoops? Of course, yesterday's spectacle of Clinton's televised grand jury testimony pointedly raises a corollary question to (2): Are the bounds of privacy different when the individual in question is a public official or public figure?

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Your latest posting underscores how difficult--if not impossible--it is to maintain confidential communications in cyberspace. Thus, notwithstanding your penultimate posting--boasting of how the Ham Nerd could render his online tracks invisible--you seem to acknowledge that even HN might unwittingly leave a trail of cookie crumbs. And for those individuals who are neither hams nor nerds, the problem is obviously even greater. The fact that we cannot expect to maintain our online privacy--thanks to not only technological, but also socio-politicial realities--perversely nixes any constitutional protections of privacy under current Supreme Court doctrine. That's because the Court has ruled that it will grant constitutional protection only to those expectations of privacy that society recognizes as "reasonable." Thus, in a downward-ratcheting spiral, the more the government (and others) invade our privacy, the more constitutional latitude they will have to do so still more, etc.

Of all the televised-testimony coverage and commentary in this morning's news, I was most riveted by Anthony Lewis's op-ed mourning the "shattered norms of privacy." He quotes the chilling warning issued by Czech writer Milan Kundera, about the enormous toll taken by public revelation of "intimate life," whether the invaders are state police or private journalists: "[L]ittle by little the people themselves lose their taste for private life and their sense of it. Life when one can't hide from the eyes of others--that is hell . . . Without secrecy, nothing is possible--not love, not friendship." In the same vein, a Harvard literature professor (in a NYT op-ed) compares the Starr Report to various literary genres and concludes that its closest analogue is to works documenting Middle Age inquisitions, in which "the most intimate spaces in the community, the home and the body itself were ruthlessly . . . exposed to common view."

Of course, regarding Clinton, there are two other, complicating factors that fairness requires me to note, even though neither dispels my general concerns for individual privacy. (1) Given his position, his privacy rights have to be assessed against countervailing First Amendment rights to convey and receive information. (2) Clinton himself has been responsible for enormous privacy violations, ranging from the air travel measures I decried yesterday, to restrictions on encryption, to "Filegate," to unprecedented wiretapping, etc. etc.

Just as Ollie North became a Fifth Amendment fan when his own privilege against self-incrimination was threatened, maybe the press and public prying into Clinton's personal life might convert him on Clipper Chip? (The etymological origin of my name is "hope"!)

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.