This article originally appeared in the October 2001 issue of playboy magazine.
What would Benjamin Franklin think of the Internet? How would the founding fathers react to Ken Starr or the Drudge Report? Would Alexander Hamilton challenge a telemarketer to a duel? What do we make of a world where Supreme Court nominees scoff at the right to privacy; where business leaders buy and sell information collected in milliseconds; where companies market videotapes claiming to show lovers caught on security tapes; where gossip has become a national industry?
Robert Ellis Smith has been a crusader for privacy since 1974, when he launched the Privacy Journal. He has written seven books on the topic, including Privacy: How to Protect What’s Left of It and the newly published history Ben Franklin’s Web Site: Privacy and Curiosity from Plymouth Rock to the Internet. We decided to investigate.
In Ben Franklin’s Web Site you write about two great American freedoms, privacy and curiosity, neither of which are mentioned in the Constitution. You describe history as a continual tension between the two. Let’s start with curiosity. Are we a nation of snoops?
We have a mania for information, for rumor and gossip. I think it originated with the loneliness of the New World. A large number of foreigners came over to check us out, to see what we were like as a people. Almost all were shocked by the “inquisitive nature,” “impertinent curiosity” and almost “violent intimacy” of Americans. Travelers were peppered with questions: Where did you come from? Where are you going? What is your name? Perhaps because there was so much space, and we lived so far apart from one another, we felt a need to know what was going on in other villages. There seemed to be a uniquely American preoccupation with gossip. Little has changed. Devouring information seems to be an American trait. We’re even willing to give up information about ourselves. Just look at TV talk shows, at talk radio, at the variety of magazines devoted to confession. Despite the lip service we pay to privacy, we don’t seem to be offended by prying questions. In fact, we’re flattered to be asked. It starts in school, when children are asked to fill out questionnaires and surveys. By the time we’re adults, we’ve been trained to do it. No one stops to ask why this information is being gathered.
You suggest that snooping has religious roots.
Colonial churches played the role of government. The first census counters, the first welfare system, the initial moral underpinnings for the community came from the church. One Calvinist church decorated its pulpit with the all-seeing eye of God. It was one’s duty to keep an eye on others to make sure they were meeting their spiritual obligations. Puritan leaders instructed members to inform on each other. This was not considered snooping but a duty to the church. Congregations provided nightwatches. There were tithingmen who checked out single persons living alone, Sabbath breakers, tipplers, debauchers and the like. They were free to enter houses.
But the church did not, as years went on, have absolute dominance. Many ornery folks moved to rural areas, where they were nonbelievers, or didn’t pay homage to the church. There are hilarious accounts of how early Americans dealt with busybodies: “A good cudgel applied in the dark is an excellent medicine for a malignant spirit.” That was the remedy for a neighbor who was “more than ordinarily vigilant.”
In Ben Franklin’s Web Site you suggest that privacy began as a sense of physical space.
The sanctity of the house was a notion that came over from England. The forces of the king had regularly infiltrated the home. Eventually that concept dissolved; even the lowliest serf could not have his house invaded by the sovereign. We developed the custom of building stone walls, of clearly delineating what was ours.
Yet the concept of a right to privacy wasn’t part of English common law.
Not during our colonial period. Privacy as a legal concept is an American invention. John Davenport, a Puritan cleric, used the term in a letter in the 1630s. He described privacy in terms of solitude, reserve, a respite from a day of engaging in public affairs. America offered elbowroom.
You note that what we think of as privacy today barely existed in the colonies. Entire families slept in the same bed. Strangers shared beds in inns. The first room devoted to privacy was not the master bedroom but the library.
That’s right. John Adams contrasted the demands of public life–the action, debate, business, pleasure and conversation–with the desire for contemplation. One entry in his diary, written in 1761, expresses a desire for escape: “Reading and reflection in retirement will be a relief and a high refined pleasure.” There came a time when he withdrew from public life entirely.
He sounds like the patron saint of reticence.
He thought that dissimulation, the concealment from others of sentiments, actions, desires and resolutions–i.e., avoiding the truth–was not only lawful but commendable “because once divulged, our enemies may avail themselves of the knowledge of them to our damage, danger and confusion. This kind of dissimulation, which is no more than concealment, secrecy and reserve, or in other words, prudence and discretion, is a necessary branch of wisdom and so far from being immoral and unlawful and a virtue.” I thought Bill Clinton would appreciate that.
Did the nation make a mistake inquiring into Clinton’s sex life?
I was disappointed he didn’t invoke his right to privacy. He could have said, “This is beneath the dignity of the president,” and gotten away with it. If he had stonewalled instead of lying, he would have had a much easier time.
We were surprised to learn that the founding fathers corresponded in code.
Washington, Alexander Hamilton, Thomas Jefferson, James Madison and William Byrd all used ciphers to mask their political opinions. The men who wrote the Federalist Papers published under aliases. When Madison first drafted the Bill of Rights, he suggested that “the full and equal rights of conscience” should not be infringed. Individual thought was as important as the right of religion.
Ben Franklin, who wrote the famous line, “Three can keep a secret if two are dead,” seemed to be on the cutting edge of the American concept of privacy.
Franklin was the nation’s first celebrity, a man who was constantly stopped on the street. In his autobiography he argued that you cannot have an active intellectual life without safe havens of privacy. As the first custodian of the mails, Franklin developed at least some notion that the message between sender and recipient ought to be protected. In 1753 he passed a regulation requiring his employees “not to open or suffer to be opened any mail or bag of letters.” Franklin also first articulated what became known as the principle of secondary use: The information you provide for one purpose ought not to be used for another purpose without your consent.
The telegraph had a profound effect on privacy, because it put private information into the hands of the companies who provided the service. How did the nation react?
When the telegraph was first introduced people thought it offered greater security than the mail, if for no other reason than the messages were in code. But it also required a leap of faith. There would be no traces, such as an opened envelope, if the message were intercepted. And the message was in plain view of the telegraph operator. Congress became interested in using telegraph records as legal evidence as early as 1868, in the impeachment trial of Andrew Johnson. By 1877, Western Union was handing over trunkfuls of telegrams to federal investigators. But Congress never extended the telegraph the same rights as the mail. There was a renewed panic in 1881, when Jay Gould took control of Western Union. The public feared and despised this robber baron, and worried about all that power being in one man’s hands.
Each new technology–from Kodak cameras to Dictaphones to high-speed presses–has stirred concerns about privacy.
I’m glad you mentioned the camera. It must have been traumatic for people to realize that somebody else could possess something they barely possessed themselves–even mirrors at the time weren’t that good or common. This image could be carried away and used by someone else, beyond the subject’s control. That’s what I think led to the development of the concept of privacy in the 1890s. There was an upheaval within the space of a few decades that mostly had to do with information processing. In 1873, we had the first effective typewriter. In 1876, the telephone. In 1886 the New York Tribune introduced typesetting with linotype machines. In 1888, Kodak introduced the snapshot camera. And so forth. Each of these advances provided a capacity for gathering information and distributing it widely. This was shocking to people raised in a rural world.
When did our notion of privacy get reduced to sexual privacy?
Around the end of the 19th century, although I can’t say exactly why. Perhaps it was Freud’s doing. Privacy became a code word for hiding mostly illicit sexual relations.
You suggest that the convergence of tabloid journalism and various “trials of the century” brought intense scrutiny to the sex lives of public figures. Did this also influence privacy?
I think so. Samuel Warren Jr. and Louis Brandeis clearly were reacting to tabloid journalism when they introduced a modern concept of privacy in 1890 in the Harvard Law Review. Legend has it that Warren was outraged by Boston press coverage of the social activities of his family. What business had the public in knowing who came over for tea? Warren and Brandeis wrote: “The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious but has become a trade, which is pursued with industry as well as effrontery.” They borrowed a phrase from legal scholar Thomas McIntyre Cooley, who two years earlier had described a right of personal immunity, the right “to be let alone.” In 1890, E.L. God-kin, editor of The Nation, also wrote an influential article in Scribners that called privacy a natural right and “one of the luxuries of civilization.”
What was the first legal recognition of a right to privacy?
A few months after the Harvard Law Review article, the U.S. Supreme Court recognized something close to a right of privacy. A woman had been injured in a railway accident and sued the railroad, which wanted her to take a medical exam. The court held that you cannot compel a person to disrobe and submit to a personal exam. They declared, “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lay bare the body or to submit it to the touch of a stranger, without lawful authority, is an indignity and assault and a trespass.”
So within the space of a century, we’ve seen the right to privacy develop from a sense of place to a sense of the personal to control over reputation.
Yes, although we still strongly associate privacy with a sense of place. You see it in the strong reaction people have to video monitoring. Law enforcement says, “What are you complaining about? We only videotape in public spaces.” The courts talk about citizens having a reduced “expectation of privacy” in certain circumstances. It’s important to remember the private moments of our lives that take place in so-called public spaces. That would include holding hands or showing affection, wearing armbands or political buttons, reading a publication, going to or from an abortion center, going to and from a house of worship. All of these actions are protected by the First Amendment yet can take place in public. I want to disabuse people of the notion that just because something happens in public, it cannot be a private act. We ought to have the right not to have those moments recorded for posterity without our consent.
Who were last century’s privacy villains?
The first has to be J. Edgar Hoover. He was obsessed with people’s sexual activities and private affairs. He devoted an entire arm of government not to tracking criminals but to invading people’s homes.
In Ben Franklin’s Web Site you describe Hoover’s campaign in the Thirties to close the “hot pillow” trade at tourist cabins and motels. Hoover first claimed that the motels were frequented by criminals, so the government needed access to the guest registers. Then, when it was revealed that most people were just there to have sex, he wrote about sin.
People in power seem to have this great curiosity that overwhelms them. Hoover used public relations more than law enforcement for his reign of terror. He had entree into magazines such as Reader’s Digest. He could shape opinion.
Do you consider Chief Justice William Rehnquist to be a privacy villain? The man has never met an athlete he didn’t want to collect urine from.
He’s gotten a free ride. As assistant attorney general under President Nixon, he was among the advisors who told the president that he had the right under executive privilege to conduct investigations and domestic surveillance. During the Watergate period, Rehnquist’s fingerprints were all over the Daniel Ells-berg break-in. When he succeeded William Douglas, who was a privacy hero, on the Supreme Court, Rehnquist decided he was the new privacy expert. This is a man who has said he did not see how a two-way mirror in a store’s changing room was an invasion of privacy.
He turned the definition of privacy on its head.
There was a key decision shortly before Rehnquist came on board that gave him a foothold. In Griswold vs. Connecticut, decided in 1965, the Court overturned a state law banning contraceptives and defined a constitutional “right to privacy.” I remember thinking it ironic that Douglas, a man who’d had three marriages, went on about the sanctity of marriage. But by not also discussing the sanctity of every intimate relationship, he opened the door for Rehnquist, whose court has declined to extend the right to privacy to homosexuals or to extramarital affairs. At every turn Rehnquist has been counterintuitive, saying there is no privacy right in things that to the average American seem the ultimate in privacy, such as giving a urine sample on demand. Nothing surprises or outrages me more than that Americans seem to have accepted that the government or an employer can extract a fluid from your body and analyze it as they see fit.
Who is standing against Rehnquist?
Justice Sandra Day O'Connor has become a champion. In one abortion case she wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.” Put another way, the concept of privacy extends to all the intimate attributes of personhood–including sexuality, family life, personal health care and education, spirituality, intellectual activities and possibly how one earns or spends one’s personal resources.
A privacy expert recently complained that most people seem so unconcerned about government intrusion that we need a Privacy Chernobyl to energize the issue.
That notion goes back to Louis Brandeis, who thought the American people would recognize the right to privacy only when there was a cataclysmic violation. To some extent, we have already had them. We’ve seen masses of leaks from the IRS. We have seen the case of Beverly Dennis, who was subjected to harassment from a prisoner because Metromail, the largest direct mail business in the country, let inmates process consumer questionnaires. It will take the equivalent of an oil spill for people to realize how sacred their privacy is, and how poisoned the environment has become.
Privacy advocates often are tarred with the brush of conspiracy: “What do you have to hide?” Is there a definition of privacy that is its own best defense?
I prefer to take a more pragmatic approach. You cannot possibly anticipate what’s going to happen that will make certain personal information about you important. And people forget that a shared respect for privacy also allows us to be candid within a circle of trusted friends and colleagues. That’s how you build communities.