Over The Hill

Strossen and Kozinski

Over The Hill

Strossen and Kozinski

Over The Hill
An email conversation about the news of the day.
Sept. 23 1998 9:37 AM

Strossen and Kozinski

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Top of the morning, Nadine.

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I was a little puzzled by your anecdote yesterday concerning the computer-company executives who seldom encrypt their communications, but wish they had encryption available as an option. There are any number of encryption products available, including Pretty Good Privacy, that are neither very expensive nor difficult to install. That sophisticated users don't take advantage of these options is not an indication that it's too burdensome to do so; it may only mean that most users are not that concerned about privacy for most of their communications.

This morning's Wall Street Journal discusses a new product designed to protect home telephones from unwanted callers. It works something like this: Caller ID determines whether an incoming call is from a "friendly" number, in which case it is put through. Calls from other numbers are screened by a recording which asks the callers to identify themselves; if they refuse, they are disconnected, otherwise they are asked to wait while the homeowner decides whether to accept the call. This all seems pretty elaborate just to avoid a telemarketing call during dinner so I doubt whether a lot of people will use it. And therein lies the tension: Everyone likes privacy in theory, but few want to spend the resources--or suffer the hassle--of achieving total privacy. More often we resort to ad-hoc solutions: When telemarketers call, I just hang up on them. Or, as a friend of mine reports, when her daughter is required to give her parents' email address (as often happens on child-oriented websites), she dutifully fills in sorry@canttell.com.

On the question whether public figures should have less privacy than ordinary individuals, my answer is: It depends. If the private matter in question bears on an issue about which the public has a legitimate interest, then the public official's privacy interests must usually give way. But I do not agree that a public official has a diminished privacy interest in matters that do not have a fairly direct bearing on the official's performance or fitness for office. For example, if a public official on a government salary suddenly starts driving expensive cars and buying exotic art and jewelry, it would be entirely legitimate for the public to inquire into the sources of this new wealth. But the public official does not have a diminished interest in his daily activities (such as where he goes shopping, who his friends are, or what restaurants he frequents). The difficult cases are those where it's not clear whether the area of inquiry has a legitimate bearing on the public official's fitness for duty--such as some of the questions raised during the confirmation of Justice Clarence Thomas.

Speaking of Justice Thomas, the Washington Post carries an interesting story this morning about his recent series of speeches where he has begun to confront his critics. I was struck by a quote from Thomas in a speech to a group of black lawyers where he stated, "It pains me . . . more deeply than any of you can imagine, to be perceived by so many members of my race as doing them harm." Justice Thomas has now been on the Supreme Court for seven years and has proven to any objective observer that his views on the law are well-developed, genuine and strongly felt. Is he any less entitled to the freedom of his conscience because of the color of his skin? And given recent developments in Washington, don't the allegations against Thomas (even if you assume them to be true--which I do not) seem petty and insignificant? In other words, isn't it about time liberals start according Justice Thomas the full dignity of the office to which he was appointed?

Finally, for those who fear we may be running out of lawyers, there is a comforting story in the New York Times' Technology section about the Concord University School of Law which will be held in cyberspace. That's right, you can now get a law degree via home study on the internet. Somehow, I have a hard time imagining Professor Kingsfield being quite so daunting in a chatroom rather than a classroom.

Best.

Ciao. AK

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.