::Literate Blather::
Thursday, May 25, 2006
Essay: Brandeis Meets MySpace

"Privacy is the right to be alone – the most comprehensive of rights, and the right most valued by civilized man.”

Louis D. Brandeis meet MySpace and the downfall of civilization.

Brandeis, the famed privacy advocate, would be mortified to know that his life – both the good and the bad – is easily accessible to anyone with a Web browser. The good – he was one of the most celebrated U.S. Supreme Court justices; and the bad – he was a skinflint.

Brandeis and his supporters were concerned about intrusive government policies. In the 1928 U.S. Supreme Court case Olmstead v. United States, the court examined the use of wiretaps on telephones by federal agents without judicial approval and whether the practice violated the Fourth and Fifth Amendments.

Sound familiar?

The court cast its lot with the government 5-4 in Olmstead (the decision was reversed in 1967). However, Brandeis wrote an eloquent and provocative minority opinion where he argued that there was no difference between a private telephone call and a sealed letter. He wrote, “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”

Powerful thinking. It is fair to conclude that Brandeis would have had a brain hemorrhage at the Bush administration’s behavior in directing the NSA to comb through millions of telephone records of U.S. citizens in a vain attempt to find connections to Osama bin Laden and Al Qaeda.

But what would have really shocked Brandeis is not the predictable overstepping of government, but our alleged freedom-loving society's voluntary undermining of our own privacy. Why worry about the federal government monitoring our telephone calls when we allow Google to “read” our email so it can better target us with advertisements? Sixty-five million people have created Web sites on MySpace sharing the most intimate details of their lives – complete with soundtracks and risqué photographs.

(Meet Kate. She’s a 22-year-old from Warwick, Rhode Island, who says her dad is her hero. She loves Dave Barry, Green Day, American Idol and strolling through Boston holding hands. Since she’s bisexual – that hand holding partner could be anyone. “Being in love with your best friend is just the ultimate thing,” she gushes on her MySpace site, where she’s posed in a bikini top.)

The list of how millions of us freely throw away our privacy rights continues to grow:
  • Thousands of bloggers use the format as a public diary. They record the tedious details of their lives for public consumption. We can marvel at the new mom who catalogs her babies every bowel movement or the boastful college student who records every sexual rendezvous. Many people have forgotten the virtue of discretion and there is mounting ancedotal evidence that employers are cracking down on those bloggers who cross the line.
  • TiVo, the TV recording service company, gathers enough information from their subscribers to track their home viewing habits even though the company promises not to, according to a study by the Privacy Foundation and University of Denver Privacy Center. The four-month investigation also found that TiVo could identify the personal viewing habits of its subscribers at will. Yet this hasn't stopped thousands of people from signing up for the service.
  • Google admits that it searches for keywords in its Gmail offering in order to serve up targeted advertising and marketing to its subscribers. That means the company reads subscriber email by looking for specific content. The potential for abuse here is staggering. Even more alarming -- Google has acknowledged that it holds onto subscribers' deleted emails -- indefinitely.
  • The popularity of reality shows like Survivor and Fear Factor continue to baffle those who treasure privacy. Yet almost nightly, television channels are clogged with the exploits of every day people willing to showcase the intimate details of their lives in the most humilating ways. Having child-raising problems? Hire a nanny with a TV camera. Need some money? Eat a bucket of slugs for a chance to win cash prizes.

Privacy, like its cousin modesty, is difficult to regain once lost. There's an entire generation of Americans who not only don't understand the virtue of privacy -- but also its importance and relevance to a strong democratic society. If people are willing to voluntarily sacrifrice freedom for the convenience of TiVo and Gmail or the illusion of intimacy promised by MySpace or a personal blog, then its no wonder the federal government believes it has the right to monitor the telephone calls of its citizens.

Brandeis had it right way back in 1928. It's time Americans listened to the skinflint.

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