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September|October 2004
Continental Divide By Jeffrey Rosen
Newtonians and Charlatans By Daniel J. Kevles
The Other Detainees By Serena Hoy
Elsewhere

Continental Divide

Americans see privacy as a protection of liberty, Europeans as a protection of dignity. Will one conception trump the other—or are both destined to perish?

By Jeffrey Rosen

NOT LONG AGO, GAWKER.COM, THE NEW YORK MEDIA GOSSIP BLOG, ran the following item: "This weekend's Times had a big lusty feature on Teen People editor Amy Barnett and her rather luscious Chelsea dwellings. Sadly," the item continued, quoting The New York Times, "Ms. Barnett declined to say what she paid for the apartment." The gossip item concluded with an editorial lament: "Don't you hate it when people refuse to give out publicly-available information, like how much they paid for their apartment? In fact, in the fall of 2003, she paid $1,125,000, and got a $900K 30-year mortgage on the West 22nd Street apartment."

In the United States, the idea that a magazine editor would refuse to disclose her finances to The New York Times was seen as an elitist affront, and the gossip site had no compunction about tracking down the "publicly available" mortgage information and publishing it on the Web. By contrast, in France or Germany a similar gossip item would have been seen as a gross violation of privacy. Europeans are far more sensitive than Americans about disclosing financial information, steeped as they are in the aristocratic tradition that respectable people don't discuss money in public. European law reflects this squeamishness: The traditional rule in France made it a violation of privacy rights to reveal another person's salary, and for hundreds of years the French nobility successfully resisted laws requiring public registration of their mortgages.

In France and Germany today, consumer credit reports are available only in the case of people in financial difficulties. (Honorable, solvent people are allowed to prohibit the curious from prying into their buying habits.) In Germany, consumers seeking credit must explicitly authorize lenders to share information about them, and before any information can be shared, the privacy interest of the borrower must be balanced against the commercial interests of the lender. In both countries, the idea that a public dossier of one's financial history could be casually shared by banks and published on the Web would be not amusing but insulting.

Financial reporting is not the only area in which Americans' cultural ideas about privacy differ dramatically from those in Europe. If visitors from Europe are scandalized by the casual way that Americans discuss their salaries with strangers, Americans abroad are similarly surprised by Europeans' nonchalance about public nudity on beaches and female bathroom attendants in men's restrooms. Europeans are also far more trusting of government, and willing to allow it to regulate personal choices in ways that Americans would find intolerable—the naming of infants, for example. In Germany, France, and Belgium, the governments reserve the right to refuse to register objectionable names chosen by parents. The German registry office keeps a list of acceptable names; in Belgium, a woman was recently prohibited from naming her infant "Anakin," after the character from the Star Wars films. (She was forced to name the child "Dorian" instead, a choice that might seem hardly less objectionable in an Anglo-American culture familiar with the works of Oscar Wilde.)

These cultural differences are reflected in dramatic differences in law. European law protects not only consumer data and credit reporting but also e-mail privacy in the workplace and the distribution of nude pictures on the Internet. U.S. law allows dramatic violations of privacy in all of these areas. "Why is it that French people won't talk about their salaries but will take off their bikini tops?" asks James Whitman of Yale Law School in a pathbreaking article called "The Two Western Cultures of Privacy," recently published in the Yale Law Journal. "Why is it that Americans comply with court discovery orders that open essentially all of their documents for inspection" but refuse to carry national identity cards? Whitman's answer is succinctly expressed in his subtitle, "Dignity Versus Liberty." When Europeans think about privacy, they are most concerned about personal dignity and the right to control one's public image, a right threatened primarily by the mass media, the Internet, and commercial data warehouses. By contrast, American conceptions of privacy are focused on personal liberty and the right to be free from state surveillance, a right threatened primarily by government intrusions into the home.

Whitman does not extensively explore the implications of his argument for current debates about privacy, but his account suggests that attempts in America to impose European ideas about dignity, or in Europe to impose American ideas about liberty, are unlikely to take root. Recently, American courts have invoked European conceptions of privacy to resolve hotly contested issues in the culture wars. In his decision striking down sodomy laws, Supreme Court Justice Anthony Kennedy hung his argument as much on the ideal of dignity as on equality. But Whitman's work suggests that efforts such as Kennedy's may be misguided, as the European ideal of dignity resonates less naturally with the American public than does a native ideal of equality. Similarly, the very different cultural understandings of privacy could vastly complicate efforts to protect national security. Conventional wisdom now holds that increased information-sharing between international intelligence and law enforcement agencies is a prerequisite for preventing future terrorist attacks. But if Europeans and Americans can't agree about what kind of information is appropriate to share, attempts at international cooperation may founder or collapse. Understanding the differences between the American and European expectations of privacy reminds us of the difficulty of achieving consensus among increasingly interdependent nations.

AMERICANS HAVE ALWAYS CONCEIVED OF PRIVACY primarily in terms of liberty, as embodied in the 19th-century phrase popularized by Justice Louis Brandeis: the "right to be let alone." The paradigmatic privacy right in the Constitution is the right to be free from unreasonable searches and seizures by the government, and the paradigmatic privacy victim when the Constitution was drafted was John Wilkes, the roughish parliamentarian and critic of King George whose private diaries were seized from his home by the king's henchmen.

The European conception of privacy as a protection of dignity, by contrast, stems from an aristocratic tradition of protecting personal honor. For most of European history, this was a hierarchical tradition. For some people to have honor, it was necessary for others not to have it, and in order for people to be treated with the honor to which they were entitled by their station, everyone had to know his or her place. Initially, honor was protected not by law but by social norms. If an aristocrat was insulted by a social equal, he would challenge him to a duel, and if insulted by a social inferior, he would bludgeon him with a cane. But over the course of the 19th century, the defense of personal honor began to change from something that high-status people expected to defend through dueling into something that they increasingly expected to defend through lawsuits. During the 20th century, the legal protections for personal honor were increasingly "leveled up," as Whitman puts it, and extended to all citizens, not only high-status ones. Repeatedly, however, the legal protections for personal honor in Europe clashed with two freedoms that Americans take for granted—property rights and freedom of the press.

The history of French privacy protection begins with the Revolution, when the first French attempt to create constitutional protections for press freedom was accompanied by a provision that guaranteed all citizens—not just aristocrats—legal recourse against the "calumnies and insults relative to private life." As the press became increasingly free, the importance of protecting private life from the indignities of the press became even more acute: A hero of French liberalism, the philosopher Pierre-Raul Royer-Collard, insisted that even true facts about private life should not be published because private life must be "walled off."

In the 1850s, cases affirming the sanctity of private life focused on protecting "the right to one's image," prohibiting, for example, the publication of deathbed photographs of celebrities. But as the century progressed, this right allowed individuals to protect their personal dignity even when they had temporarily forgotten themselves in moments of indiscretion. For example, Alexandre Dumas, the author of The Three Musketeers, made the mistake of having himself photographed with his lover, in various states of undress. When the photographer, who owned the pictures, tried to copyright them, Dumas sued, arguing that privacy should take precedence over private property. A French court agreed, and ordered the photographer to sell all rights to Dumas. Even if someone had effectively agreed to the publication of embarrassing pictures, the court held, he must be able to withdraw his consent in the interest of protecting his dignity. Other successful suits prevented artists from selling sketches of nude models.

In Germany, the legal protection of honor took a similar, if more deliberate, route. Whitman argues that German legal protections for personal honor were not democratized until the Nazi period, when the leaders of the Reich went out of their way to stress the importance of the honor of low-status people, as long as they were racially German. It was the Nazis, more than Weimar liberals, who anticipated the broad postwar German protections for privacy, which guarantee that "every person has the right to free development of his personality, insofar as he does not injure the rights of others." In their democratic and egalitarian focus on the entire German Volk, Nazi ideologues were determined to grant common people the same dignitary rights that had once been reserved for aristocrats.

Today, German and French privacy law continues to protect the dignity and honor of ordinary citizens in ways that Americans would find difficult to comprehend. Consider American treatment of prisoners, at home and abroad, which strikes Europeans as brutal and degrading. As Whitman has argued in an earlier work, Harsh Justice, Europeans used to reserve more merciful and dignified punishments for high status offenders; today, all inmates are treated in a manner "once reserved to figures like Voltaire." But the treatment of prisoners is only one aspect of the personal honor that European law protects. In 1996, for example, a French court found that an employer violated the dignitary rights of his employees when he forced them to show receipts for the goods they wanted to take home. (Honorable people are entitled to be treated with trust rather than suspicion.) In the name of honor, Europeans are even willing to tolerate restrictions on freedom of the media, restrictions American courts would never accept. In France, a man who attended a gay pride parade was able to oppose the publication of his photograph, on the grounds that people should be able to come out to their friends without being out to the world. In America, courts came to the opposite conclusion when Oliver Sipple, who thwarted an assassination attempt on President Gerald Ford, tried to keep his homosexuality out of the papers. As a result of the decision, Sipple drank himself to death.

French courts also imposed criminal liability and heavy fines on a young man who posted nude photographs of his ex-girlfriend on the Internet, and they put a free Internet service provider out of business for posting nude pictures of the model Estelle Hallyday. An American court offered no such recourse to Dr. Laura Schlessinger when the conservative radio commentator sued to keep her own ex-boyfriend from posting youthful nude pictures of her. The court held that once the images were widely available on other sites, there was no point in trying to enjoin their publication. Americans simply don't understand the European view that personal dignity has to be protected in principle, even when it can't be protected in practice.

WHITMAN ARGUES THAT THE EUROPEAN EMPHASIS ON DIGNITY has always gotten a cold reception in America. This, he suggests, explains the reception of the most famous law review article ever written, Louis Brandeis and Samuel Warren's "The Right to Privacy," published in the Harvard Law Review in 1890. The authors proposed making the invasion of privacy a tort, but while the notion was initially hailed for its creativity, it found a tepid reception in American courts.

Conventional wisdom holds that the privacy torts proposed by Brandeis and Warren's article, such as intrusion on seclusion, and intentional infliction of emotional distress, never really got off the ground in the United States because of the lack of consensus about how much privacy citizens should reasonably expect. But Whitman has a more convincing explanation: Brandeis and Warren were trying to import European-style protections for dignity into an American legal culture that had no interest in the hierarchical traditions of personal honor on which those protections relied. "The story of the relative failure of Warren and Brandeis," he writes, "is precisely a study in how poorly continental ideas do in the American climate."

Although Brandeis and Warren relied on continental sources in trying to argue for their privacy tort, in the United States the causes of action they championed morphed into something very different. For example, the "right of publicity," designed in Europe to give high- and low-status people control over the publication of their own images, evolved in the United States into a protection of the rights of celebrities such as Tiger Woods and Arnold Schwarzenegger, who can argue that their images have commercial value. Americans are more concerned about protecting property than about protecting honor. Why have American courts refused to invalidate the sales of nude images in order to protect people from violating their own dignity? Because American courts and citizens view market transactions as more sacrosanct than the dignity of individuals.

Consider data privacy. Privacy advocates in the United States have long lamented the failure of Congress to pass a comprehensive law protecting the privacy of consumer data. They have tended to blame the influence of the interest groups who oppose broad consumer privacy protections—from banks and marketers to law enforcement.

Whitman's argument is more sophisticated: Americans haven't been receptive to restraints on the market, he suggests, because these restraints depend on a conception of personal dignity and honor that has never been widely accepted in America. For this reason, privacy advocates might do well to abandon efforts to import European protections wholesale into the United States, and focus instead on translating them into a language that Americans can understand—the language of consumer sovereignty and private property.

Or consider gay marriage. In the Lawrence decision striking down sodomy laws, Justice Kennedy said that the Constitution protected the "liberty of the person both in its spatial and more transcendent dimensions." But he had trouble defining those "more transcendent dimensions." In some parts of the opinion he talked about the autonomy that can only be protected when the state is "not a dominant presence," inside or outside the home. But in other parts of the opinion he talked about the dignity that can only be protected when citizens treat each other with equal concern and respect. Kennedy said, for example, that the Court's earlier holding in Bowers v. Hardwick, which allowed the states to criminalize sodomy, "demeans the lives of homosexual persons," because the stigma imposed by a criminal offense has implications "for the dignity of the persons charged." The prohibition might bring not only "state-sponsored condemnation" but also "collateral consequences" in the private sphere as well. In Texas, for example, convictions are noted on job application forms, and this could give rise to private stigma and discrimination.

As Whitman notes, Kennedy has trouble speaking about dignity because there is no obvious doctrinal peg for his discussion of the rights of gays and lesbians to enjoy equal respect. He can quote only from his own paean to liberty in Planned Parenthood v. Casey, in which he declared abstractly that "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." This dictum has no obvious precedents on which it can rely, since most American privacy precedents focus on the right to autonomy from state intrusion rather than the right to dignity in the eyes of fellow citizens.

Because of the thin legal and cultural support for dignity as a fundamental right in America, Whitman predicts that "such arguments will fade in American discourse with time. This makes the prospects for a constitutionalized right to gay marriage, for example, dim." In fact, lower courts, in Massachusetts and elsewhere, have already invoked Kennedy's vague language about dignity to support a right to gay marriage. But Whitman's analysis suggests that rather than putting too much weight on the value of personal honor, which Americans have never demanded of each other, courts determined to recognize gay marriage might do better to focus on rights that resonate more naturally in American culture—such as equality, for example. The right to be free from laws intentionally designed to single out one group for special condemnation is something that the American egalitarian tradition can defend more naturally than it can an attempt to extend to gays and lesbians the same sense of honor and dignity that was once reserved for aristocrats.

LOST IN THE PARTISAN UPROAR in America over the USA Patriot Act is the surprising fact that the expansion of state surveillance authority in Europe after September 11 is arguably more draconian than in the United States. This reflects a difference in political culture as well as constitutional structure. In America, the strong tradition of opposing centralized state authority was expressed in a bipartisan coalition of civil-libertarian liberals and libertarian conservatives, who had some success in blocking the executive branch's most extreme proposals for increased surveillance authority. Thanks to this libertarian coalition, Congress denied funding to the Bush Administration's proposed Total Information Awareness Project, which would have allowed terrorist profiling through the broad-scale mining of consumer data. Congress also said no to a national identification card, and imposed sunset provisions on sections of the Patriot Act. Criticism from privacy advocates led the Bush Administration to scale back the new version of the Computer Assisted Passenger Profiling System at airports, known as CAPPS II. Originally, the Administration proposed to share consumer data with national or international law enforcement agencies. In the face of criticism, it has now proposed to share only evidence that a traveler has an outstanding warrant for a violent crime.

Europeans, by contrast, tend to be less suspicious of centralized government authority than Americans. As Kim Scheppele of the University of Pennsylvania has noted, Europe's greater deference to government authority led countries like Germany and France to adopt surveillance measures after September 11 that in some ways make the Patriot Act seem meek. (Though in other ways, the Patriot Act went further than its European counterparts.) For example, in 2002 Germany adopted a sweeping law that increased the power of its security agencies. The government was authorized to create a central database with personal information about foreigners, including fingerprints and religious background. The law also authorized the German national identification cards to include biometric data, such as fingerprints. And it explicitly endorsed data mining along the lines of the Total Information Awareness model, requiring government agencies to turn personal information over to the federal police.

The great variation between the European and American responses to September 11 reflects their different historical conceptions of privacy and state authority, but it also poses a challenge to policy makers. In an age of integrated databases and the Internet, it may be costly to have very different rules about what sort of information can be shared among and between intelligence agencies, law enforcement officials, and the private sectors in America and Europe. It is now generally accepted that increased information sharing is the best way of preventing terrorism, but information sharing between the public and private sector may be difficult if Americans are focused on the dangers of state surveillance and Europeans are concerned about protecting the dignity of the consumer. We have already seen examples of terrorism prosecutions in Germany that have had to be abandoned because American authorities refused to share intelligence for fear of compromising confidential informants and information. It's not hard to imagine future American terrorism prosecutions that may be thwarted because of German or French legal restrictions on the sharing of personal data held in the private sector.

IS THERE ANY POSSIBILITY FOR PRIVACY ADVOCATES to expand the cultural understandings of privacy in Europe and America, so that Europeans come to care more about liberty and Americans more about dignity? And if so, how could such a cultural transformation come about? Whitman suggests that each society has (and he apologizes for the clumsy phrase) "juridified intuitions—intuitions that reflect our knowledge of, and commitment to, the basic legal values of our culture." If our intuitions about privacy are to be changed, he says, "We must face the fact that we will not succeed in changing either world unless we embark on a very large-scale revaluation of legal values."

On this point, I'm skeptical. Of course legal and social values influence each other, in a complicated and mutually reinforcing dynamic. But Whitman's own historical account suggests that when it comes to the protection of privacy legal values tend to reflect social understandings, rather than the other way around. If this is correct, those who hope to import European understandings of privacy to America, and vice versa, should focus on changing social understandings of privacy rather than on passing new laws.

But can social understandings of privacy easily be changed to accommodate both honor and liberty? Not necessarily. "In the beginning," said Locke, "all the world was America." An unsettling possibility for privacy advocates is that as Europe becomes more and more like America—that is, more market driven, less hierarchical, more democratic, and more distant from its aristocratic past—the popular consensus about the importance of protecting dignity will atrophy and eventually collapse under the weight of market forces. A society where citizens refuse to respect their own privacy is not one where privacy will be long respected.

Market democracies like America's demand exposure out of a combination of voyeurism, desire for emotional connection, democratic suspicion that reticence is a sign of elitism, demand for markers of trustworthiness, and an unwillingness to conceive of public events or to relate to public figures except in personal terms. One result is a transformation in conceptions of fame. Instead of seeking a good name that will bring them honor, people seek to be famous in the way that a celebrity is famous—that is, "a person who is well known for his well knownness," as the social historian Daniel Boorstin memorably put it in his book The Image. Boorstin wrote before the development of the Internet turned every citizen into a potential public figure. Thanks to the Web, private citizens now have the same technological opportunities as celebrities to expose and market themselves to strangers, with similarly unsettling results.

Consider the proliferation of blogs, the personal Internet journals that often combine political musings with intimate disclosures about daily life. There are more than a million and a half of them, according to one of the latest estimates. Some are devoted exclusively to public affairs while others are nothing more than published diaries. (A site called Diarist.net collects more than 10,000 journals from self-styled "online exhibitionists.") Often, these diaries are virtually unreadable examples of self-display, dreary accounts of navel-gazing whose primary function seems to be therapeutic. But they reflect a desire for public attention so powerful that it erases the boundaries between public and private.

This phenomenon works both ways, allowing celebrities to pose as ordinary people as well as allowing ordinary people a bid for celebrity. Last year, for example, presidential candidate Howard Dean used a campaign blog to support his early lead in the race for the Democratic nomination. Even after Dean's candidacy collapsed, his electronic legacy endured. In his wake, every self-respecting candidate felt obliged to blog from the trail. The coverage of Dean's use of the Web focused on his success in raising money and rallying a young and tech-savvy base, but at least as important was his insight that a blog could be used to counter the impression of aloofness. Blogs allow candidates to appear less like politicians and more like regular guys, even if the appearance is often as carefully constructed as a campaign ad. What better way to court an electorate increasingly wary of elitism and hungry for personal disclosure than to open an electronic diary for all the world to see?

As European traditions of dignity wither under America's growing influence on the continent, American traditions of suspicion of government may be threatened by the persistent anxieties of an age of terrorism. It's not hard to imagine, in the face of future terrorist attacks, the bipartisan libertarian coalition being overwhelmed in the face of public demands for security above all else. Whitman's fascinating account of the cultural history of privacy reminds us that the future of privacy depends on how Americans and Europeans come to regard the values that privacy rights were originally designed to protect. Dignity, the European ideal, requires a degree of self-restraint on the part of citizens—good manners, reticence, self-respect, and a willingness to respect the dignity of others. Liberty, the American ideal, requires a degree of civic engagement—only informed and educated citizens can check the excesses of the state. Dignity can't be maintained in a nation of anxious exhibitionists who are more concerned about attracting attention than deflecting it, and liberty can't be achieved in a nation of fearful wards of the state, eager to sacrifice privacy for an illusory sense of security. To defend privacy, in other words, citizens in Europe and the United States have to care about privacy. It's increasingly clear that many of us do not.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic. He last wrote for Legal Affairs about fetal homicide laws.

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