by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds.). Stanford, California: Stanford University Press, 2012. 224pp. Hardback $65.00. ISBN: 978-0-8047-7704-9.
Reviewed by Victoria A. Redd, University of Florida Levin College of Law Journal Offices. Email: reddva [at] law.ufl.edu.
In the aftermath of reporting on the extensive NSA surveillance programs, a recent CNN news report quoted a U.S. President as saying “No one is listening to your phone calls…” (Pearson 2013). Despite the assurances, many Americans continued to obsess on the issue: Is my privacy safe?
When considering this topic there are so many privacy issues at stake, there is no wonder that many feel helpless to protect themselves against the infringement of their Fourth Amendment. Technology has bypassed the slow movement of the law. There is actually a movement of those who feel that the law needs to be reformed so that a citizen can have a “reasonable expectation of privacy,” especially in the area of communications. But should we depend on Congress rather than the courts for this?
“More than a century ago, Samuel Warren and Louis Brandeis warned of emerging threats to individual liberty associated with new business methods and technologies” (p.1). That warning has echoed with its concern throughout society’s private life, however, today the concern is even more urgent ‒ where privacy in the home has been degraded, allowing the family’s activities of intimacy to become the world’s business, where privacy is subjective depending on who and what government agency is involved, and where we have the internet that can be used to instantly leak information all over the world.
Unfortunately, the court system is overburdened with cases of various issues on privacy rights and there seems to be no end in sight: Advocates for privacy rights (Advocacy 2013) remind those who will listen that the Supreme Court declared in 1967, “The Fourth Amendment protects people; not places” (KATZ V. U.S.). These advocates believe that the issue should not be about whether someone has something to hide, but instead that the government should stay out of people’s affairs. In the U.S. Constitution, there is “no explicit reference to a ‘right to privacy’”(p.3). Given that there appears to be a tug of war between privacy and surveillance (something that has occurred throughout U.S. history (McCoy 2013)), the Supreme Court cases engage the debate of public versus private realms. One of the most recent is the Electronic Privacy Information Center’s petition to the Supreme Court arguing that “the current domestic surveillance program is unlawful” (EPIC 2013)) under the Fourth Amendment. In fact, this is merely just the tip of the iceberg, only one aspect of our privacy issues that are eroding society’s mental health. Even a solution to this one problem will not [*592] resolve the rest. Because, what really does a “reasonable expectation of privacy” mean for an individual and his or her family? (Wilkins 1987; Allen 2013) What can we say about a government that thinks privacy is unimportant for their citizens and is more concerned with surveillance? And how can someone who is striving to protect their right to privacy fight against government agencies and the challenges they face daily in society?
People who are interested in sorting through these arduous questions should consider reading IMAGINING NEW LEGALITIES: PRIVACY AND ITS POSSIBILITIES IN THE 21ST CENTURY edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey. The book’s title is a reflection of the essays that make up this book in the Amherst Series in Law, Jurisprudence, and Social Thought, on Privacy issues that we all deal with on an individual or a collective basis. Sarat, who has been at Amherst College for more than 40 years and who is renowned in the field of sociology and the law as it is revealed in America, and his fellow editors have created an absorbing and effective book to share various views on the rights of privacy and what this means in society. They assert that “[t]his book does not seek to provide a comprehensive overview of threats to privacy” (p.3) (even though it covers the topic quite thoroughly); rather the aim is to give the reader a catalyst to realize a responsibility for the problem. We as a society need to take charge of our own rights in the spirit of democracy by using something he calls “legal inventiveness” (p.3).
Sarat et al. divide the topic of privacy rights into three domains. The first are those privacy rights involving “intimacy” rights like family and relationships, such as marital and sexual or parental and child (these are “quintessentially” private activities) (p.29). The second are those privacy rights involving criminal procedure and the Fourth Amendment, or what some have come to know as “search and seizure laws.” These are rooted in the abstract notion that “private and public spheres exist” (p.93) and involve various views about what belongs in each sphere. The third area recognizes the fact that individuals live in “an emerging networked information society” that needs to have some kind of “governance,” and includes those privacy rights involving the internet and those institutions that require personal data for online use (p.151).
In the first essay, “Disenchanting the Public/Private Distinction,” Kathyrn Abrams begins by explaining the evolution of the family unit, and how activism for gender and sexuality has complicated the privacy found in the “private” family unit. Abrams calls the effects of this activism “disenchanting.” Because heterosexual marriage was seen as a private romantic activity including intimacy, the rearing of children, and the nurturing of family members, when the family unit changed, the privacy domain boundaries changed; the domain boundaries were “characterized by distinctive motivations;” this privacy now has to be reframed (p.30). Abrams states that “[t]he efforts at ‘re-enchantment’ reflected in the ‘natural family’ movement are unlikely to succeed” (p.26). Abrams concludes that “reconceiving the public/private relation may prove a greater challenge for the more privileged among us,” because [*593] they are the most overstated ‒ adding that outsiders are better at “integrating the public and the private” (p.45), simply because they have learned to be better at it. The second essay, titled “The Law of Play” (by Ariela R. Dubler) gives as its introduction the definition of the sphere of (acceptable) play. Many types of activities, although illicit in other areas, are considered non-sexual “play,” especially when it is male-on-male behavior. A mild example would be when one football player smacks another football player on his behind after a play. Dubler argues that this is because of context or perception of what is considered acceptable behavior, and therefore a thin line exists between play and harassment. Dubler’s opinion is that “[t]he sphere of play, then, brings with it both a sense of freedom and also of danger” (p.80). The essay gives two examples of cases that reflect the sphere of play, ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC. (1996) and SAFFORD UNIFIED SCHOOL DISTRICT V. REDDING (2009). The Supreme Court decided that both Oncale’s experience at work and Redding’s experience at school were beyond the sphere of play based on their “nonplay context” (pp.78-79): Oncale’s experience was ruled sexual harassment and Redding’s experience was ruled a violation of her constitutional rights. Because the sphere of play generally lies outside the bounds of the law, especially when social interactions occur ‒ and, many times it goes unchecked because there are no boundaries ‒ it brings with it this sense of freedom and along with it this sense of threat or danger. Judges and legal experts vary on their concern about regulation in this area (Stanley 2010).
The third essay, “Coming to the Community” by Robin Feldman, addresses the dynamic of living in a modern society with the challenges of exposure with today’s technology. Much of what we do on the internet shares so much information about us, and what is perhaps thought to be private is instead public. These information boundaries also are constantly changing along with the users that are interacting with or using the technology. Because of this, internet users are vulnerable, and may even contribute to privacy problems through their behavior. This fact should not lead to the conclusion that they fore go a right to privacy, but instead that the law should protect our privacy. For an example, Feldman gives a female student who posted a description of a sexual fantasy about another female student in a chat room. When there was no cyberspace or computers, a person wouldn’t have ordinarily placed this information in everyone’s mailbox. But now with live chat rooms and bulletin boards, a fantasy post can be read by anyone, and in this case it created problems for both of the students and their privacy at the school they attended.(p.85). Perhaps what happened was intentional, or it could be something different, just that those users of chat rooms are not as savvy when it comes to the use of the private and public domains when using modern technology. Feldman suggests that in addition to the public and private spheres, we need to consider the government in our definitions so that the government’s pursuits for the community as a whole are also in the public realm. But, should the government be allowed to intervene in our private sphere? In addition there may be things we do not want out there for the government or community’s eye, such as our DNA, health record, or some other information that we consider [*594] extremely private. Feldman suggests that we create an “identity cohesion” or biologic sphere separate from the public or private spheres (p.115).
Julie E. Cohen contributed the fourth essay, titled “Configuring the Networked Citizen,” in which she looks at sociotechnical change that is altering our society and its citizens, not just reshaping us but how we control our lives. Accessibility to information is at our fingertips (if we need something we just ask Google) by doing a search online or using digital catalogs or databases, we can monitor and use filtering technology to prevent our children from having access to information that we do not want them to have, and the social networking platforms like facebook are limitless. With these sociotechnical changes come many problems. Cohen suggests that there is another question that needs to be asked: How should society “structure accountability for the design of networked information technologies and artifacts”? (p.140). She reminds us that there are standard answers to this question, that it is best if left to be regulated by the market rather than government, especially because “federal agencies are not equipped to engage in technical standard-making for the multitude of products and services that the networked citizen now confronts” (p.143). The essay ends with a stern reminder that our networked society needs “widespread awareness of the problem of configuration and [an] appreciation of the importance of continual, critical revision in the domain of the sociotechnical” (p.151).
The closing essay in this book is “Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective,” by Anthony Sebok and Lars Tragardh, which gives the international view of the public and private spheres of rights, especially as they relate to healthcare. “In the United States a move toward universal healthcare will involve a loss of choice and individual power, while a countermovement toward stronger individual patients’ rights in Europe will equally inexorably involve a loss of equal and universal access to all treatments” (p.186). This struggle between the public and private spheres is not easily solved. Sebok and Tragardh quote (p.187) William Saletan (2010), a national correspondent at Slate.com, showing the extent of the complication of differentiating between the spheres of public and private rights when socializing health insurance: “When you throw in your lot with other people and agree to play by the same rules, you surrender some of your freedom and risk losing some of your options. . . . If that’s the price of health care reform, are you willing to pay it?”
Sarat et al. do not try to give the reader an exhaustive analysis of the topics of privacy rights and its many threats, however, the book is thought-provoking as far as the many concepts involved in privacy rights. In addition, the book suggests there are also some ways one can confront the issues ‒ renamed legal inventiveness ‒ to protect oneself and one’s family, should we choose. There are also other sources online that talk about these same issues (Marieu 2012; Markesinis, et al. 2004).
That said, I believe, the book is well worth a read. The scholarship of the book perhaps has not furthered the cause [*595] of privacy rights directly, but it will help the reader in the understanding of the definition of privacy rights. Sarat et al. have shown an unusual capacity to pick excellent essays that share a timely perspective on these issues. Those who are concerned about privacy issues and are looking for more than just rhetoric or politics should read it ‒ it will be knowledge that is useful in the future.
ADVOCACY-PRIVACY JOURNAL, www.privacyjournalnet.
Allen, Anita L. 2013. “An Ethical Duty to Protect One’s Own Information Privacy?” Faculty Scholarship Paper 451. http://scholarship.law.upenn.edu/faculty_scholarship/451.
EPIC Foreign Intelligence Surveillance Court (FISC). 2013. “Sign EPIC’s Petition to the NSA.” http://epic.org/privacy/terrorism/fisa/fisc.html.
Makesinis, Basil, Colm O’Cinneide, Jörg Fedtke, and Myriam Hunter-Henin. 2004. “Concerns and Ideas About the Developing English Law of Privacy (And How Knowledge of Foreign Law Might Be of Help).” AMERICAN JOURNAL OF COMPARATIVE LAW Volume 52: 133-208.
Marieu, Michael. 2012. “Law in Transition Biblioessay: Globalization, Human Rights, Environment, Technology.” CADMUS Volume 1(4): 147-57.
McCoy, Alfred W. July 15, 2013. “The U.S. Surveillance State Dates Back to the 19th Century.” MOTHER JONES (reprinted from TomDispatch Website).
Pearson, Michael. June 9, 2013. “Obama: No One Listening to Your Calls.” CNN. www.cnn.com/2013/06/07/politics/nsa-data-mining.
Poitras, Laura and Glenn Greenwald. June 9, 2013. “NSA Whistleblower Edward Snowden: ‘I Don’t Want to Live in a Society that Does These Sort of Things.’” THE GUARDIAN. www.theguardian.com/world/video/2013/jun/09/nsa-whistleblower-edward-snowden-interview-video.
Saletan, William. Nov. 9, 2009. “Semi-Private Womb: Selling Out Abortion Rights for Health Care Reform.” SLATE. http://www.slate.com/id/2235016.
Stanley, Jay. May 2010. “The Crisis in Fourth Amendment Jurisprudence.” American Constitution Society for Law and Policy Issue Brief.
Warren, Samuel and Louis Brandeis. 1890. “The Right to Privacy.” HARVARD LAW REVIEW Volume 4(5): 193.
Wilkins, Richard G. 1987. “Defining the “Reasonable Expectation of Privacy”: An Emerging Tripartite Analysis. VANDERBILT LAW REVIEW, Volume 40 (5): 1077-30.
KATZ V. UNITED STATES 389 U.S. 347 (1967).
ONCALE V. SUNDOWNER OFFSHORE SERVICES, [*596] INC., 523 U.S. 75 (1998).
SAFFORD UNIFIED SCHOOL DIST. NO. 1 V. REDDING, 557 U.S. 364 (2009).
Copyright 2013 by the Author, Victoria A. Redd.