Restoring American Privacy

>A recent string of gay teen suicides, brought to light by Tyler Clementi's leap off the George Washington bridge, is creating a "teachable moment" for gay rights activists, today's Washington Post declares. I hope they're right, and the tragic deaths of Clementi and others will help de-legitimize discrimination based on sexual orientation or identity (discrimination never really ends, but laws and social mores can greatly reduce its incidence). But I worry about the lessons being drawn and not drawn from this "moment" -- the tendency is to equate inequality with incivility, by characterizing Clementi as a victim of bullying, and the relatively scant attention being paid to contempt for his privacy. "The problem with (the video posting that preceded Clementi's suicide) was not that it was hurtful, but rather that it was a crime" -- a crime against privacy -- as my friend Harvey Silverglate has stressed. If the video had been posted not to mock him, out of indiscriminate meanness or anti-gay bias, but, with good (if profoundly stupid) intentions to help advance acceptance of homosexuality, it would still be a gross and apparently criminal violation of privacy.
   
So no thanks to New Jersey Senator Frank Lautenberg for promising to introduce federal legislation requiring colleges and universities to enact anti-harassment policies. And hold the applause for Rutgers University's recently launched civility initiative, heralded by the university president in his response to Clementi's suicide. Considering the long and dismal record of sensitivity training and anti-harassment initiatives on campuses nationwide, I suspect that the Rutgers's program will be a lot less successful in nurturing civility than teaching disrespect for freedom of speech -- without enhancing regard for privacy. Indeed, the speech and harassment codes enacted to spread civility generally diminish privacy by diminishing freedom of conscience and belief.  
   
These days, efforts to restore our privacy seem almost as utopian as plans to cleanse us of viciousness. I'm not suggesting that we should refrain from punishing and trying to deter illegal eavesdropping or secret videotaping of private moments; colleges and universities should make clear to students that they have privacy as well as speech rights (and, of course, there is no free speech defense to the taping and broadcasting of Clementi's sexual encounters). But the number of people who will be persuaded to respect privacy laws will probably equal the number who obey laws against distracted or drunk driving; and the overall effect of compliance on individual privacy will be marginal compared to the break-taking scope of easily accessible publicly available information about everyone, as well as the ubiquitous corporate and state surveillance to which we are routinely subjected. We are all at least potentially on display. Like human cruelty, public exposure is now a fact of life. The challenge is not to restore privacy, but to try compensating for the lack of it.  

The increasing irrelevance of facts is one negative adaptation to exposure, as Sarah Palin's ascent so dramatically attests. When facts don't matter, embarrassing personal histories (along with the details of policy debates) are effectively erased or consigned to irrelevance, while references to them are boldly condemned as personal attacks. Perhaps Christine O'Donnell is genuinely concerned with dispelling the notion that she is or was a witch; but I suspect that, as Marc Ambinder speculates, she may be inviting the mockery of alleged elites in order to shore up support from her base; "I am you," she declares, meaning in part, "when they mock me, they mock you too."

Politicians who contend with limited privacy and the expectation that they'll conform private conduct to their public images are pioneers in reinventing themselves, at a time when everything is recorded, if not exactly remembered, and sometimes the same fascination with scandal that brought them down can raise them back up. Would CNN have hired Eliot Spitzer, would his hiring have generated controversy, and would anyone follow his show, or his new career, if he hadn't been caught with his pants down? For reality TV contestants, exposure is a route to celebrity, obviously, but it's planned and scripted exposure, offering its stars the apparent opportunity to craft and exploit their own images, revealing only what they choose. (Exhibitionists harbor secrets too). But most of us will not be offered TV shows as a reward for being publicly embarrassed, and for most of us there is such a thing as bad publicity.

Generally I have questions, not predictions about how we will adapt to the loss of privacy and anonymity, living in the shadow of surveillance and indelible digital trails. How will cultural myths about America change when we can no longer even imagine changing our names, forging new identities and lighting out for the territory? How will personal relations be affected by our unprecedented power to expose each other's intimacies? How will life in plain view effect personality development? Will duplicity become not just common but socially respectable? Will we idealize artifice instead of authenticity? I hope the gay rights movement succeeds in achieving legal equality soon, but gay Americans who are liberated from one closet may find themselves consigned with the rest of us to another.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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