Most people in America love playing with tape recorders.
—Chairman Mao, incredulous at the fall of Richard Nixon
Robert Gensburg has practiced law in my community since 1967. His wife, Leslie, hangs out with our friend Ellen, who used to own the bookstore in town. According to local usage the Gensburgs count as my neighbors, though they live some miles from my house and I’m not sure I would recognize them on the street.
Last spring Leslie Gensburg complained to Verizon about problems with her phone service—peculiar clicks, inaudible dial tone—but the company was slow to respond, even after Leslie took the extraordinary step of summoning a lineman down from a telephone pole to demand satisfaction. About a month later Leslie picked up her home phone and was startled to hear her husband speaking to another party from his office, fifteen miles away. It so happens that one of Robert’s clients is a thirty-six-year-old Afghan man who has been held at Guantánamo since 2002. Naturally, the Gensburgs began to wonder if their phones had been tapped. Their suspicions grew with the discovery that massive amounts of confidential information had been moved around on Robert’s office computer. A forensic computer expert later confirmed that the machine had been hacked. Oddities in the Gensburgs’ phone service have continued throughout the past year; they have yet to receive a credible explanation from the phone company or the courts. Robert described these experiences in a recent talk entitled “The Rule of Law Is Dead.”
Well, we sort of knew that, but the point has a way of hitting home when it manifests so close to home. One wants to make a proper neighborly response. It occurred to me that some of us might declare our solidarity with the Gensburgs by inviting the national intelligence services to tap our phones as well.
But such a course has obvious drawbacks, not the least of which is its redundancy. In essence we have been proffering that invitation, to our government and to one another, for about as many years as Robert Gensburg has been practicing law.
You are in an airport security line, wondering what outrages are about to be visited on your person or your personal effects. Will it be the lingerie in your suitcase this time or the lingerie on your loins? How much further will it go? How much will the American people tolerate?
The answer, to use the language of the Bible, is not far off but near at hand; it is in your heart and on your lips—or at least on the lips of the fellow shouting into his cell phone next to you. He is telling his girlfriend that she spends too much money. She is “always buying shit.” His time away from home is no excuse. She knew when she moved in with him that his job involved travel. She should have known—as indeed every person within a radius of fifty feet now knows—the details of his life.
It’s possible that those details include political views that sort with yours. It’s possible that you and he would find common ground with the young man who called me not long ago about an essay I had written for this magazine. I had made a specific suggestion, and he wanted to act upon it. He wanted to know if I had any advice. Always remember, I cautioned him, that there is a big difference between the relative ease of advocating an action, as I had done, and the dangers of taking it.
Perhaps I ought to have said that there is also a big difference between a private conversation and a public pronouncement, for I would eventually find a verbatim transcript of my remarks posted on the Internet as “an interview” with yours truly.
I don’t wish to denigrate this young man. He apologized for his trespass, and he removed his blog post after I asked him to. I continue to be moved by his zeal. In some ways he appeared in my life like the answer to a prayer. The problem with answers to prayers, though, is that they can take the form of disturbing questions. Like this one, for instance: Where do we stand if the people most willing to oppose the encroachment on our privacy are
also unable to grasp what
privacy is?
I grew up in an era of defining moments, which means, I suppose, that I grew up in an era that eludes definition. The assassination of John F. Kennedy, the race to the moon, the Beatles at Shea—take your pick. Here is mine: it was the moment when Allen Funt first said, “Smile, you’re on Candid Camera.” More precisely, it was the moment when someone first decided that the appropriate response to being tricked, ridiculed, and photographed into the bargain was to smile. Especially if you were going to be on TV.
It is not hard to locate similar cultural markers: the 1973 PBS documentary An American Family (the subjects bore the uncanny surname Loud); the 1999 HarperCollins coffee-table book Voyeur, which in the words of its publicity release invites its readers “to implicate themselves simply by picking it up” (I invited the special- collections librarian to implicate himself by taking the damn thing straight back to where he’d found it); the glibness with which otherwise intelligent people still assert that the Kinsey Report “revealed the sex lives of Americans” when all it revealed was the sex lives of Americans willing to submit to sex surveys—a submission infinitely more significant than any datum it produced. That there are people who copulate with sheep neither surprises nor interests me; that there are people sheep-like enough to surrender that information on demand is a perversion I find altogether baffling.
To be sure, I have also seen the right of privacy invoked and championed over the years, perhaps most notably in Roe v. Wade. “Abortion is between a woman and her doctor,” as the saying went at the time, a woman’s right to privacy—like her testimony in a Saudi rape case—apparently too weak to stand alone. The privacy argument later took a bit of ironical ribbing from Planned Parenthood’s controversial I had an abortion T-shirt, which had an important point to make, no doubt, though a more pertinent point might have been made by a T-shirt reading we had a lobotomy.
Ironists can also garner good material in the ever more elaborate protestations of confidentiality that attend medical treatment. Your auntie now has a harder time learning the location of your recovery room, but a cancer researcher you’ve never met (and for whose benefit you’ve never signed a waiver) has little trouble finding your first and last names in a tumor registry or blazoned on some memorial (again without permission) lit up at the finale of a “cancer survivors” jamboree. To paraphrase the words of an old song about shelter, disclosure is just a click away.
The Luddite in me wants to lay this at the feet of cybertechnology—to make too big a deal out of a poll that shows 11 percent of Americans willing to get their email via a device implanted in their heads (with the inevitable bonus of having their brain waves monitored and their marching orders issued through the same device)—but the writing was on the wall long before it popped up on anyone’s screen. What it said was that by surrendering ourselves to the imperatives of gratuitous curiosity we were not only being better sports; we were building a better world. Seen in that light, the Candid Camera reference falls short. A more exact marker is to be found in the history of the Weather Underground, when the callow revolutionaries were instructed to strip and have a go at each other on the floor of a van in order to purify their souls of the dross of bourgeois inhibition. Although I wasn’t on hand for the fun, I feel I’ve seen that episode replayed again and again throughout my adult life. I’ve seen it in every group grope that passed for a dinner party or a church service, at every “training session” that started with one of those Simon-says rituals (“I want you to turn to the person next to you”) that purport to build trust by inculcating subservience. What I have not seen, suffice it to say, and don’t expect to see anytime soon, is a revolutionary.
Central to the deterioration of our right to privacy is a metastasizing obsession with the privilege of access. We like to say that this privilege extends to all of us and that it is fundamental to the workings of a dem ocratic society, but who are we kidding. “Access” for the majority applies less and less to the information required for self-governance and more and more to the prurient trivia desired for self-abuse.
It also has less and less to do with consent. Not long ago I took my laptop to be repaired. I was not comfortable leaving it at the shop, I told the technician, due to the sensitivity of some of the files, several of which pertained to persons he was likely to know. I needn’t worry about those, he countered, in a voice that might have come from the Burning Bush, because he was “fully bonded.” I wondered if I would be asked to remove my shoes.
The technician was hardly eccentric. He was operating on the basis of widely held assumptions. First, that credentials entitle access. If I know a lot about some subject, I have a right to know more about you.
Second, that impressive credentials bespeak impeccable ethics. To the extent that I can be trusted to provide an informed opinion, I can also be trusted to keep a cherished secret. Only the laity gossip.
Third, that my privileges are in no way restricted to the offices certified by my credentials. That the question “What does this have to do with our transaction?” is off the table if the table happens to be in an operating room.
And finally, and most perniciously, that the means of access are in and of themselves a right of access. That the mere ability to record, store, and transmit is fundamentally the license to record, store, and transmit. To suggest otherwise is to be a spoilsport and a control freak, the type who fails to produce the obligatory smile
when the shutterbug leaps
from the shrubbery.
If there is indeed a relationship between the loss of privacy and a slavish regard for credentials, then it comes with a warning for the members of our educated classes, at least some of whom claim to be politically liberal, and almost all of whom count credentialed people among their dear, dear friends. For that reason their faith in the prerogatives of expertise tends to be personal. It is not so much an idea as a name, a whole address book of names, all belonging to intimates who can be relied upon for an after-hours consultation or a pick-up game of golf and whose merest mention in polite conversation calls forth the epithet wonderful. To drink in the company of the well-credentialed is to be drunk on wonderfuls long before the martinis kick in.
It is also to feel the frisson of access, of being made privy to confidences that are, quite obviously, not confidences for long. “Don’t tell a soul,” someone whispers, and rare is the auditor who whispers back, “Then why are you telling me?” You don’t need a weatherman to know which way the wind blows, or up whose skirt, or toward what consequences for the private parts of the average citizen’s life.
Of course it would be silly to claim that our cultural elites, be they liberal or illiberal, are to blame or are equally to blame for what is happening to Attorney Gensburg. The official push to reduce our privacy, or to “redefine” it, as Principal Deputy Director of National Intelligence Donald Kerr insists we must do, has come overwhelmingly from the Republican right. And yet one keeps hearing the emerging conceit that a truly progressive person no longer needs such obsolete encumbrances as confidentiality, copyright, or clothes. We live in a flat world now, in a global village, and we would do well to learn from hunter-gatherer societies like the !Kung, a people who have existed for tens of thousands of years without any notion of privacy at all. And we are mightily impressed by that, even as we continue to decimate the !Kung with remorseless efficiency, having first compiled digital images of their coital positions, their fecal matter, and their back teeth. Smile, N!eishi. You’re on The History Channel.
My late father-in-law, who lived in much closer proximity to his neighbors than I do to mine, awarded his highest accolade to the couple residing in the house across from his garage. “The thing I like about the Greenways,” he used to say, “is that they mind their own goddamn business.” You might suppose that my father-in-law was an antisocial type, similar to the aspiring recluse who married his daughter, but he was in fact a gregarious man, fond of visiting his neighbors, solicitous of their welfare, beloved by every stray mutt and scruffy child who dashed through his minuscule yard. He was also liberal in his politics and maddeningly reticent in any matter pertaining to his physical health or emotional weather. He saw no contradiction in any of this. Neither do I.
The business of taking back our government and the art of minding our own goddamn business are not contradictory either. Increasingly I believe they come down to the same task, to the fullest possible incarnation of what Justice Louis Brandeis called (in Olmstead v. United States, 1928) “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” Of course, that right is meaningful only in a society that ensures liberty and justice, including economic justice, for all. But if the defining act of tyranny is making somebody talk, and an early symptom of tyranny is listening in when somebody talks, then the avant-garde of tyranny are those people who, far from caring if somebody listens in when they talk, will actually talk louder for the eavesdropper’s benefit.
With that in mind I have made several resolutions. One is to be quicker to ask, “Why do you need to know this?” Another is to be quicker to say, “I don’t need to know this.” The last is to spend more time getting to know people like the Gensburgs and even that young guerrilla blogger, who stepped over a line, yes, but for the eminently forgivable reason that he was willing to move his feet—more time with the likes of them and less at those orgies of shallow candor, where everybody gets a hug and nothing is embraced.
