AUTHOR:	Arien Mack
TITLE:	Privacy
SOURCE:	Social Research 68 no1 v-vii, 1-338 Spr 2001

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    The papers in this issue are versions of the presentations given at the Social Research conference on privacy held at New School University in October 2000. This conference was the seventh in the conference series we initiated in 1988, and this issue is the seventh that has been devoted to papers from these conferences. The mission of this series is to foster discussion of matters of grave public interest in light of their often neglected and generally illuminating historical and cultural contexts. Thus, for example, past conferences have dealt with the AIDS crisis ("In Time of Plague"), homelessness ("Home: A Place in the World"), and hunger ("Food: Nature and Culture"). The choice to organize a conference on privacy seemed a natural extension of the series, since questions surrounding what should be private and what public are among the most pressing of those now confronting us.
    Even in the short span of the last 30 to 35 years, our conceptions of what should be kept private have undergone large and visible changes. "MonicaGate" offers one all too obvious example. In the early 1960s, when President Kennedy was in the White House, open discussion of his sexual conduct was off-limits--it was considered a private matter. Not so for Senator Gary Hart, whose run for the presidency not so many years later ended abruptly with the press disclosure of his sexual misconduct, and emphatically not so for our most recent president, who was impeached for his. What had been off-limits and private a short time ago has become fair game and open season for the press, which now behaves as if it has an obligation to inform the public about these matters.
    While these may be the most recent flagrant and well-publicized illustrations of the rapid shift in our conception of privacy, there are many others. The "outing" of gays, which highlights the current tension between private and public discourse, is another example. A more subtle example is the shift in forms of personal address. Where a short time ago we were introduced by our titles (Mr., Mrs., or Miss) and surnames, perfect strangers now address us by our first names. The hierarchy of social distance, which distinguished our associations with familiars and members of our private lives from our interactions with those we did not know, whom we encountered in the public sphere, has been eclipsed by the false intimacy of casual relations.
    Of course, there is no doubt that the distinction between private and public is the outcome of continuous cultural negotiation rather than an enduring classification. However, even if the boundaries between these two are in flux, the distinction continues to be critical, for where nothing is private, democracy becomes impossible. Privacy is not only threatened by the voracious publicity culture in which we live. It is also threatened by the accessibility and transferability of information enabled by the new electronic technologies that flourish unrestrained in a culture in which the limits of privacy already have been eroded. Because this instant access and instant transferability of information defies all boundaries, it easily and effortlessly penetrates the boundaries between self and other, one organization and another, one state and another, and perhaps most uniquely, one nation and another. Wherever the equipment and the power exist, this avalanche of information is available--including an alarmingly large portion of what, not long ago, would have been considered private and privileged: our medical records, our charge-card records, the records of many businesses and organizations, and even government secrets.
    As a consequence of all this, we are confronted today with a situation seemingly without precedent. Moreover, while this situation is challenging enough at the national level, it is far more challenging internationally--more difficult even than controlling the flow of arms or atomic know-how, which we have been unable to deal with successfully. However, it is worth remembering that, although new technologies seem to be changing our conception of privacy beyond recognition, history belies the uniqueness of this experience. The story of the Garden of Eden depicts a beginning in which nothing was private, not even our "private parts." It was only after Adam ate from the tree of knowledge that the distinction between public and private emerged. With the Fall came both the sense of shame and the idea of privacy. Or, if we look back to the time before design and technology allowed houses to have many different rooms, there was virtually none of the kind of privacy we are now so accustomed to within our own homes. Changes in architecture accompanied or reflected changes in what was private. At a very different level, the apparently simple matter of how we dress reflects different and changing views of what we believe ought to be invisible to others--or, in other words, private. A stark example of this is seen in the contrast between the dress of women on American and European beaches and that of Islamic women, or between the concealing styles of our own earlier eras and our contemporary dress. Finally, to cite one other well-known historical example, it was only with the Reformation that, for Christians, religion became a private matter.
    So, at a time when our notions of privacy seem to be under assault from many different directions, and new technologies seem to be threatening privacy's very core, a public forum to discuss these matters and to reflect on the evolution of our conceptions of privacy as well as those of other cultures with different histories seemed in order. While the papers in this issue are primarily concerned with privacy from the perspective of the United States, two future issues will explore privacy from quite different perspectives: one from the perspective of the former communist countries now 11 years into their transition to democracy, and the other from that of the Middle East, with an emphasis on Islamic cultures. Both these forthcoming issues will be based on additional privacy conferences we are organizing in collaboration with colleagues abroad. Together we hope these three issues will provide a rich picture of the various and complex histories of the meanings of privacy.
ADDED MATERIAL
    Arien Mack Editor

PART I

PRIVATE/PUBLIC: THE EVOLUTION OF THE DISTINCTION

INTRODUCTION: PRIVATE AND PUBLIC
    BY DAVID BROMWICH
    PERHAPS the thinker who best understood both the strangeness and the necessity of the terms private and public was Jean-Jacques Rousseau. He was a great believer in private and public life as he thought they should be. At the same time Rousseau detested all that privacy and publicity have made of human nature and culture as we know them. He observed in his Discourse on Inequality that modern society was invented by the first person who ever thought to say of a thing, "This is mine." The barbarism that we call civilization followed lamentably but logically from that beginning--the system of artificial honors and snobbery and the shameless craving for distinction that have corrupted even as they have civilized. Privacy and publicity, property and theft, come into the world at the same moment, obedient to the same discovery. Ever since, the good and evil of the legacy have been joined.
    One can hardly conceive of public life without an idea of the private as its contrast and supplement. Only in fantasy or journalism do people "gather strength in private" for the sake of a "public deployment of their best energies." Equally silly is the notion of fulfilling one's public duty for a settled period, and with proud reluctance, for the sake of a later private and leisured retirement. The truth is that these opposites exist in constant mutual dependency and tension. One thinks of a dignified public life--the ideal may be vivid even if its attainment seems remote--and yet the very idea becomes unreal when severed from a well-understood observance of decency in private relations. We are fated to be public persons with a reserve of self-knowledge, and private persons whose fortune will always a carry meaning beyond ourselves.

THE LANGUAGE OF PRIVACY
    BY JOHN HOLLANDER
    THE title of my essay, "The Language of Privacy," could be construed in various ways: language that occurs in private circumstances, for example, or language, or modes of it, that can identify or characterize a condition of privacy. It could also be a somewhat archaic-sounding way of referring to the notion of a "private language," which has occupied philosophers since Wittgenstein (Wittgenstein, 1955: sec. 243 ff.), but the concern there is with the nature of language itself (for example, could you really call something language that was--under an appropriate definition--totally "private" in that only one speaker knew it?). This touches at best peripherally on the subjects of this symposium. But I shall be concentrating mainly on the language by which we designate, mention, describe, and invoke the (increasingly amorphous) concept of privacy. "Private" is a word that in modern life sends pseudopodia out into the regions of other words, like "personal," "intimate," "secret," "confidential," and "solitary," although it never takes over any of them totally. I shall be concerned with the borders between these various terrains, and the way they have shifted over time with an increasingly profligate use of "privacy."
    It is largely as a consequence of the attachment of the word to a legal concept engaging issues of rights (initially by Justice Louis Brandeis and subsequently--and most influentially--by the Privacy Act of 1974) that the word "privacy" has come into such sensationally active public use in the past few decades. Some anomalies in our contemporary use of "private" emerge when the terms are contrasted in different contexts: "publicly held" corporations, for example, constitute most of what we call the "private sector." Different senses of both "private" and "public" are at work here, and they require some exploration. (British "public schools" are surely private, by American criteria, in that they are not state schools; and yet "private schools" in Great Britain are those run for profit, and the public schools, like American private universities, are run only to maintain themselves and their function.)
    The English word "private" shares a common Latin origin with "deprive," "privation," and "deprivation," all with a sense of a stripping away that results in a loss of something. In Roman times "privilege" denoted a law applying to an individual rather than to a population in general. The earlier "privy," from French privý, still exists in its special sense (for example, being "privy" to a legal or institutional proceeding) as well as with the sense of the later word ("privy counsel," "privy member," "privy" = "privy stool").
    The Greek idios designated a particular person as opposed to koinos, meaning what is common to the many. (Another pair of terms whose axis of contrast seems parallel to a private-public one is of course what used to be a firm distinction between family and polis.)(FN1) The oldest sense of the word "private" in English I shall call sense (2). It designates the nature of an individual person who is not official and not otherwise distinguished--more generally, an unmarked member of a set. Yet even the medieval European king, as opposed to his private subjects, was spoken of as having two bodies, a private one and a public one. And even today, a private soldier, for example, is distinguished from a noncommissioned officer, whose official marked status puts him or her in a position to give orders, not as a person but as a sergeant, for instance. We might want to say today that there could be no true privacy of certain sorts in the military, that the limits of one's personhood are circumscribed, but this probably applies more to one's moral agency than even another meaning of "private" that would have been invoked. Generally, this sense of "private" is not in paired opposition to "public"; nor does it lead to our various concepts of "privacy": that would depend upon what I call sense (2). This meaning of "private" is much closer to "personal" with regard to (a) property, (b) one's body--one's "person" in more euphemistic, nineteenth-century usage, and thus touching on "intimate"--and (c) something more like "secret." It is also sense (2) that has grown in range and in importance over the past century and, especially, in recent decades. Fewer and fewer are the circumstances in which one would want to say of something that it was "merely a private matter." On the other hand, in response to a question delving into something we felt to be private, we might say "Well, that's my business." Business? A matter for some public--municipal, state, federal--regulation? And it is not the public realm of the so-called private sector previously mentioned that is being referred to here. (But if instead of saying "That's my business," one said, "That's my business!" it would be answering an altogether different question, and privacy would have had nothing to do with it.)
    The noun "privacy" mostly derives from sense (2) of "private." For example, when an infantry private is promoted or when an ordinary citizen is elevated to privilege of rank or office, we would not want to say that their former privacy had thereby been invaded. But a strong poet's language often opens up conceptual possibilities by stretching ordinary usage; consider here Emily Dickinson's lines (1959: 163):
    To my quick ear the leaves conferred; The bushes they were bells. I could not find a privacy From Nature's sentinels. In cave if I presumed to hide, The walls began to tell; Creation seemed a mighty crack To make me visible.
    The grammar of "a privacy from--" is strongly idiosyncratic here, but the sense of "privacy" at work is revised when we get to the second stanza. It seems either that it is a condition like that of a cave in which one hides (the cave being a bungled, overly material form of something that would invisibly and impalpably surround one), or that when "a privacy" cannot be found, a hiding place is one's only bet, and that will not work either when what you are hiding from is not an animal or human agency.
    In earlier usage, sense (2) was particularly applicable to property. (I suppose that sense (1) can still apply to property in certain cases--the swans on all the rivers of England belong to the crown, save for the egregiously odd case of, for example, the swans on the Cam that belong to St. John's College and are private swans.) Common land in an English village would not be private, but enclosed fields would become so. A. J. Ayer remarked that in philosophical discussion, one of the "principal features" of the distinction between mind/matter "is that a privacy which is denied to matter is attributed to mind" and this suggests an analogy with property but with regard to epistemological, rather than physical, accessibility: matter is common and mind enclosed, although the enclosures themselves would thus be built of common matter but, as human, minded bodies, laid claim to by their minds as private property.(FN2) A separation of notions of privacy and property occurs in American English usage over a period of 80 years between the language of the Supreme Court in 1886, referring to "the sanctity of a man's home and the privacies of life" (Boyd vs. U.S.),(FN3) and speaking of a "right to privacy, no less important than any other right carefully and particularly reserved to the people." It might be noted that nowhere in the Fourth Amendment, which affirms "the right of the people to be secure in their persons, houses, papers and effects" does the word "private" appear, although the tendency today might be to feel that privacy inheres somehow in the grammar of "secure in their ..." (which does not mean in the safety of their homes, etc., but rather secure in their possession of them).
    A zone of privacy that one carries about with one (and that, today, can be said to extend to disembodied information about one) is rather like the kind of "private property" called personal wealth. George Kateb considers the right to property to be the right "to have and to get more"; in this connection he observes that "Only a miser wants it [wealth] for its own sake. Nothing of value--not life itself--could go on without taxation. Giving up some of one's wealth is therefore not acquiescing in injury to one's human dignity" (Kateb, 1992: 21). Giving up some of one's privacy is likewise therefore not acquiescing in injury to one's human dignity, but rather possibly a reasonable trade-off (for security, erotic enjoyment, wealth). But to pursue this analogy, is catatonia a version of extreme hoarding of privacy? Is autism? A total individualism--which need not, but which probably would, result in anarchy--might also be. A sense of your own privacy is not compromised by your knowledge that everyone else has an equal amount or range of it; there is no greed extending to privacy, and no striving to exceed others in its possession. This is not true of a sense of ownership of real or other property. There can never be too much privacy, but putting it that way is to use the phrase very differently than when saying, concerning human greed, that there can never be too much property or wealth. On the other hand, we might agree that there can never be too much protection of it from unwarranted intrusion.
    John Locke asserts, in a formulation basic to some of our concerns here, that "Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any right to but himself" (Locke, 1690: ý27).(FN4) But in Hobbes's state of nature, there can be no privacy: "[I]n such a condition, every man has a Right to every thing; even to one another's body" (Hobbes, 1952: 99-109).
    Together, these formulations imply some sort of agency that can possess undisputed rights to the bodily territory it has inherited, but only the second insists that these rights are themselves constructed by the first and general construction of culture itself. Animals often seek seclusion, isolation, and shelter from any trace of presence of an Other; humans may tend to speak of them as seeking privacy, but here again, the imperial term extends its terrain.
    Georg Simmel speaks of "our body which is our first 'property'"--having previously defined "property" as "that which obeys the will of the owner" (Simmel, 1964: 322 n.). This perhaps raises the question as to whether disposability is a criterion for property: if it is mine, I can destroy it, sell it, trade it, dis- or reconfigure it. Yet even if our bodies are in any way our private property, our ordinary rights seem not to extend to them. For example, suicide might have to be held to be the taking of a life rather than the destruction of one's body in order to constitute a crime, as it is in some jurisdictions. Counterassertions to the notion that your body is your property would have to argue that your private body is only leased to you by God, or, as in popular Catholic pastoral jargon of the nineteenth and the first part of the twentieth centuries, remains a sacred precinct, a temple, of God's gift of life, and therefore, again, not private and not yours to allow to be sexually excited, entered, and possibly impregnated.
    Are our bodies more private than our "thoughts" (or fears, sensations of hunger, or pain)? All the latter are what we might want to "express," to squeeze out of the more private space. The question whether we would want to say that our bodies are privy to our thoughts is one for a philosophical argument not to be pursued here. But we might more appropriately ask whether it is a greater invasion of my privacy to touch me, or to interrogate me, against my will. It probably depends upon what kind of touching where on my body, and what kind of questions asked of me under what constraints. Or again, if you grab my hand and shake it without my having offered it, have you violated my privacy? If you call me "John" without having met or acquired some intimacy with me, have you violated my privacy? Or in either or both of these cases, is it something else that has gone wrong, and perhaps this is a matter not of privacy but of intimacy? Does transgressional tutoyer--the use of the familiar rather than the polite form, in languages other than English, of the second-person pronoun--violate privacy? No. Then what? It has a feel as if something here were being violated--decorum? status? one's right to assume that decorum is a basic social default-mode? Or what? That is surely a public matter: acknowledging status is what one wants in that case. Residues of tutoyer in English occur only in obsolete "biblical" (and early modern English)--thou, thee, thy (plural ye, you)--as if a private discursive realm had been forever commandeered for public use. For almost two centuries, American English reserved addressing someone by his or her Christian name alone as a rough equivalent of the tutoyer of most European languages.
    But I note with some amusement that it was about the time that the Supreme Court's opinion in Griswold focused new and intensifying attention on the domain of privacy that people in their late teens and early twenties abandoned surnames in most encounters, as if it were more private information than one's given name.
    My body is my private property par excellence. But since privacy is itself immaterial, is my name my property? And what makes it my name? I can't copyright "John Hollander" per se--there are probably many others--but I suppose I can copyright "John Hollander, Inc." Or can I? But, if I had a unique number, it might be said, like my body, to be my property, even if only on leasehold. And what about my shadow? Is that "mine," even though I have less control over it than the light source that generates it? In Simmel's terms, my shadow is not my property. If you call out my name are you violating or encroaching upon my privacy? What if you tread on my shadow, or if your shadow falls across mine? The history of the use of the word private in the last half-century suggests that there would be more occasions on which even people who would not want to assert that their shadows were private would admit that they somehow feel as if they were. And this is to say something about the changing uses of a word rather than about changing attitudes toward cast shadows.(FN5)
    Literature, especially poetry, often exhibits the extraordinary use of ordinary language, and can often remind us of issues our ordinary use of words would neglect, repress, or even deny. We might consider one particular observation about privacy written in 1931. It emerges in W. H. Auden's dedication, to Stephen Spender, in his early book The Orators (1932), a strange work in prose and verse full of secrets and conspiracies against many areas of public, and particularly of institutional, domain:
    Private faces in public places Are wiser and nicer Than public faces in private places.
    Auden's lines play against an old and much simpler proverb ("Fools' names and fools' faces/Are often seen in public places"). But beyond that, this little dedicatory epigram turns upon several meanings of the word "private." If we miss all of these, the lines lose some of their point: "private face" might only make sense if we meant a totally veiled one, or else, in another sense of face ("making a face"); in that instance, it would have to refer to a particular facial gesture or set of these, only articulated in what the face's owner would think of as some kind of privacy. Faces are by nature public. But the word "private" in the first line is simply contrasted with "public," although the faces and the places are indeed more strongly differentiated. "Private" here blends with some of the meanings of "personal" and "intimate" and sets up an interesting balance of official/private, general/personal--the theme of the sanctity of individuality and idiosyncrasy against social conformity, a theme that has not yet fully flowered into a slightly later political agenda of individuality brutally menaced by totalitarianism. I would guess that for Auden there is the additional suggestion that public faces--the result of what Eliot's J. Alfred Prufrock calls preparing "a face to meet the faces that you meet"--are somehow masks that public roles impose upon the players of them, and that they would be as intrusive, in a soft personal realm, as hardware.
    There is a play here on different senses of "place" as well, a place that affords privacy to a person, as opposed to one located on or in that person, particularly what are less and less often called today "private parts." The interplay between these two senses of "place" here is influenced, I believe, by Andrew Marvell's famous lines from "To His Coy Mistress"--"The grave's a fine and private place / But none I think do there embrace"--"fine" = narrow + excellent + pun on final; "private place" > "private parts," about which he has just been speaking ("And your quaint honor turn to dust / And into ashes all my lust"). In the case of Auden's lines, the erotic situation is one of being gone down on by a perhaps dehumanized "public" person, a molecule of institution rather than of individuated humanity, and particularly a "private" person capable of loving another. (Indeed, a twentieth-century sense of the word "private," distinguishing a person from an institution, may have developed in recapitulation of the older sense that I have designated [1].) On the other hand, the private face in the public place may perhaps be vulnerable to all sorts of emotional and spiritual battering, but it will not do anything to the public place beyond providing an emblematic reminder that it--the place--does not wholly constitute the world. Ultimately, public and private places in the poem are two different sorts of place; the private one is more complex, to the degree that it can be both the locus of a person, and--perhaps we might want to put it, concentrically--a locus on or in a person. (I shall return to this concentric paradigm later.)(FN6)
    Even more blatantly sexual is another bit of background text for Auden's epigram, a well-known moment in a scene from Shakespeare between Hamlet and Rosencrantz and Guildenstern (Hamlet, II, 2). The pair are characterized by Rosencrantz as "the indifferent [in the sense of "undifferentiated" = ordinary = private (1)] children of the earth." Guildenstern adds: "Happy [= fortunate, lucky] in that we are not overhappy. / On Fortune's cap we are not the very button." And then:
    Hamlet: Nor the soles of her shoe?
    Rosencrantz: Neither, my lord.
    H: Then you live about her waist, or in the middle of her favors?
    G: Faith, her privates we.
    Guildenstern uses "private" to mean an intimate, a close friend, and perhaps himself plays on "private (unranked, ordinary) soldier" (remember that they are not "overhappy"). But Hamlet moves in for the kill by replying: "In the secret parts of Fortune? O, most true! She is a strumpet ...." (Note that the phrase "private parts" has not come into usage yet. Instead, we have privy parts, privy member, etc. There is no trace of it before Shakespeare's death, and the term is mostly Victorian--thus Samuel Butler: "The three most important things a man has are, briefly, his private parts, his money, and his religious opinions." What an English and Protestant thing to say! And how neatly these components of a larger sense of the private are assembled" (quoted in Auden and Kronenberger, 1962: 10).
    We speak of privacy as being open to violation of, or intrusion upon, it. Certainly, issues of privacy have become almost sensational in the past few years; and this may result in good part from privacy's rapidly increasing fragility in the face of developing technologies violating it, both secret and open, beyond the capacities of the intrusions of preindustrial ages. But there are circumstances in which the boundary is traversed from the other direction. In Thucydides' account of the decay of civic life in Athens during the plague, he observes that "Men now coolly ventured on what they had formerly done in a corner" (Thucydides, 1934: I, 53: 113) and we might almost feel here that it is as it were the privacy of the public realm that has been violated. There is another story about "private faces in public places" that does not interest the young Auden, but which we must certainly consider. One whose privacy has been invaded may feel shame, or even guilt if part of the private terrain had been a region of secrecy containing evidence of crimes, profoundly regretted acts, or sins (if one's moral universe contained such a category). But one might also feel something like shame--although not for oneself personally--that the public realm had been violated, rather than merely feeling sympathy for some other victim of the crime of breaking and entering. It is almost as if the public realm had its own sort of privacy, its own property-related propriety: what in many jurisdictions is defined as "indecent exposure," for example, is felt to be just that sort of intrusion.(FN7) It is easy to feel that something is wrong with the polis, which must do too much public business secretly, and it seems very strained to say that a government--which, unlike a king, is not a person--can have privacy (as opposed, of course, to members of government as--in sense [1]--private persons).
    Walt Whitman asserts a personal view of personal privacy in a wildly clever way by stripping institutions of whatever might be thought of as their hedges against intrusion. After proclaiming himself (Whitman, Song of Myself, sec. 24) to be "No more modest than immodest," he exhorts his reader to "Unscrew the locks from the doors! / Unscrew the doors themselves from the jambs!" From a born Quaker with a particular sense of an almost sanctified boundary between the private and the institutional, this sounds strange if taken too literally. Whitman follows these lines with "Whoever degrades another degrades me, / And whatever is done or said returns at last to me." and here the metaphor of opening up a house of personhood becomes even more complex. But the whole of Whitman's poem, with its new metaphors of body, soul, and self, might be looked at in itself as an energetic and improvisatory reconfiguration of private and public domains.
    An easy structuralist sort of conceptual move might be to highlight for basic significance the public/private boundary, rather than the total peripheries of the territories it divides, with their far less determinate frontiers. I shall not do so in these observations, although the temptation is there and the consequences hardly dishonorable. Nor do I have space to consider such questions as that of the relation between feeling that one's privacy had been invaded and that some other injustice had been done to one. Nor, indeed, what effect the current jurisprudential climate may soon have on just that relation.
    "Literary property" is, of course, private property leased out into contingent public status until, after some legally designated period of time, it enters what is called in this sort of language "the public domain." You own a letter written by Fred to Hilda, containing an unpublished poem and an ancillary confession to some vile misdeeds. The letter--the pieces of paper--is yours and you can write on it, rewrite what is on it, wrap sandwiches with it, start a fire with it, mop up messes with it, shred it, or even burn it. But you cannot publish any of it in any form, for the language belongs to Fred or his estate--not to Hilda or hers, and certainly not to you. What you possess are the means and the right to destroy it, but only the means, and not the right to give it life. For it is as if the language only comes to life as language when it is re-uttered in public inscription, like some portion of a person's privacy that only seems to come into existence when it is violated--which is, again, like an internal region of your body that only seems to be "there" when it is in some kind of pain or other altered state. What meaning of the word "privacy," then, might someone be tempted to ascribe to literary property? In the case of the Fred-Hilda letter, when a private communication between two people is spied upon by the lawful owner of the medium of that communication, whose privacy is invaded more, Fred's or Hilda's? Does the zone of privacy apply not only to people but to something connecting them?(FN8)
    But I now wish to turn for a moment to another matter, that of secrecy. Two issues seem to be central to the relation of privacy and secrecy. The first is that secrecy can be a mode of ensuring privacy but, save in the worst of social and political circumstances, should not have to be. The second, more interesting notion is that the truest secret is a dead secret (a "deep" one in German), that is, one whose very existence, let alone its content, is unknown, probably to no more than two people. Saying "I have a secret" may mean only "I have knowledge of something and that knowledge is of a private part of me, access to which is obtainable only by very special permission." One may have to lie to protect a secret. There's no special right to keep secrets, only an obligation not to lie about them under oath.
    "Do you have any secrets?"
    Yes."
    "What is one of them?"--and here Fifth Amendment rights might then hold, if the secret involved guilty knowledge. But do they in the case of the first question? Generally, secrecy is a condition that is broader than the realm of the dead secret, but there is a purity about the latter, as well as a power to remain unbroken, that can seem to constitute an utmost authenticity. And once you share your secret with even one other person, you compromise it and are therefore responsible in some part for its becoming open knowledge if revealed by the other party. On the other hand, it is probably essential that one's domain of privacy not be a secret.
    When secret matters become public, the only outrage deemed to occur would be from those who felt such matters ought to have been kept secret, and those who felt they ought never to have been in the first place. But--as was previously observed--when certain privacies are thrust into the public realm, many people will feel that it is the public realm that has been violated somehow as well, even if the private party consented, and thus might be said to have thrust an intimacy upon a public realm that might perhaps reasonably claim its own right to protect its citizens from having intimacy imposed upon them without contract. Or from contracting intimacy as if it were a disease, rather than contracting for it, which is a different matter.(FN9)
    A secret revealed--or, more obviously, an enigma or riddle solved--is not per se an intrusion upon any sort of privacy, although the characteristic initial secrecy of the enigma may protect the means, the hidden key or the burglar's tools, as it were, enabling that intrusion. But the existence--and something of the nature--of a particular privacy need not, and probably should not, be a secret. Rather, that privacy is something known to exist and to be acknowledged. Emily Dickinson, a poet and person we tend to think of as the secular saint of some kind of privacy, was very clear about secrecy, which she deals with in several poems, but almost always averring that dead secrets are the only true ones. For example:
    "Secrets" is a daily word Yet does not exist-- Muffled--it remains surmise-- Murmured--it has ceased-- (1960: No. 1385: 595)
    and
    The Suburbs of a Secret A Strategist should keep, Better than on a Dream intrude To scrutinize the Sleep (1960: No. 1245: 546).
    It is easy to think of secrecy as being forced to occur when insufficient privacy is afforded individuals. This comes from a particular antipuritanical view of society (not only American--we have all read French novels). Societies may at once map out private and public spheres and at the same time produce institutions that violate the boundaries.(FN10) Certainly, a right to have secrets seems even more fundamental than a right to privacy, however defined, as is, I think, a right to seek solitude, and a right to try to preserve it by lawful and reasonable means (although probably not a right to have it preserved for me).
    But let us consider for a moment the relation of solitude and privacy. Solitude can be spoken of as a condition free of one's consciousness of present Others having present knowledge of one or, conversely, as a condition bare or in want of such consciousness.
    Loneliness is a very different condition that we nevertheless implicitly treat as a metaphorical solitude. We can choose solitude or not, the way we choose sunlight or shade, and we may decide to barter some territory of our privacy. (I do not think we would ever choose loneliness.) But unless one is invoking the privacy that solitude necessarily and trivially provides, then a notion like "privacy in solitude" seems of little interest. It is privacy when one is among others that is the point. And there is a way that public / private may not always function as a mutually exclusive pair: one might want to invoke public privacy, that is, a general acknowledgment that even when immersed in public relationships, there is always a private core, that privacy is a matter to be publicly acknowledged.
    Elected solitude secures bodily and rhetorical privacy and prevents any intimate activity (although trespass, or what I will call one's textual privacy, involving one's written communications, and, more recently, certain information about one, can always be violated in one's absence). Enforced solitude, on the other hand, might be felt today as an infringement on one's privacy even though one could not argue that this constituted an infringement upon any of one's rights (for example, a prison sentence resulting from a confession to a crime or an uncontested jury verdict). Voluntary solitude can generate feelings of loneliness, but it is frequently loneliness felt in the midst of others that encourages retirement and withdrawal into solitariness--a kind of secular monastic retreat into a natural cell, the Waldeinsamkeit or sylvan solitude of the German romantics. The English poet Andrew Marvell's protagonist in "The Garden" withdraws into a private green world, not only from the red and white of sexual embodiment, but from the contingent public greens of oak, palm, and laurel--the wreaths awarded for achievement in war, statesmanship, and poetry--as well. "Society is all but rude," he proclaims, "To this delicious solitude," where the rude, the rough, the raw usually flourish in the absence of civilization, or society. Here the speaker's mind commits its most private act of withdrawal "annihilating all that's made / to a green thought in a green shade," after which his soul--in yet one innermost private realm--departs from his body and flies up into a tree like a sort of nonmaterial bird. (Marvell, 1994: 46).
    A much later English bourgeois kind of privacy is the one outlined at the end of an essay by George Santayana, interesting also for what seems to be a compound, rather than a mixture, of admiration and condescension:

It is intelligible that a man of deep but inarticulate character should feel more at ease in the fields and woods, at sea or in remote enterprises, than in the press of men. In the world he is obliged to maintain stiffly principles which he would prefer should be taken for granted. Therefore when he sits with his newspaper, his wife, or his dog, his monumental passivity is not a real indolence. He is busy reinforcing his character, ruffled by the day's contact with hostile or indifferent things, and he is gathering new strength for the fray. After the concessions imposed upon him by necessity or courtesy, he is recovering his natural tone. To-morrow he will issue forth and confident, and exactly the same as he was yesterday. His character is like his climate, gentle and passing readily from dull to glorious, and back again; variable on the surface, yet perpetually self-restored and invincibly the same (1922: 38).

    We should also note the question of private devotions as opposed to public ones: perhaps seventeenth-century German pietism favored privacy, but radical protestants in England and the United States aimed more at outing religious experiences and testaments of faith. Even beyond the most radical seventeenth-century protestants, Quakers wished to nullify all institutionality, even of some sort of protestant congregation, and opted for carefully filtered semipublic utterances constituting witness of the private meditational state.
    Before concluding, I should like to make some brief observations on questions of shame and guilt as they touch on my subject. Ruth Benedict, in The Chrysanthemum and the Sword, distinguished between "shame cultures" and "guilt cultures," but did not go into detail about the consequences for privacy in the two contrasting instances. But even if a guilt/shame distinction can seem to lie along a private/public axis, it may be misleading merely to leave it there. A very important association of shame, guilt, and, implicitly, privacy in our literature is worth a moment's consideration here.
    There is no Privacy in Paradise, just as classical antiquity had it that there was no Chastity (in an older sense of the word, "honour") in the Golden Age, because there seemed to be no need of it--in such a world in which all pleasure was by definition virtuous--if only because there could be no motive for encroachment upon it. In Renaissance mythography, the shading of the story is toward there being no Guilt or Shame in the Golden Age as well. With regard to the meaning of "privacy," we might immediately want to associate shame with the public realm and guilt with the private one, but this could be misleading (as with theological as opposed to legal "guilt," for example). One powerful modern myth of the dawn of the private/public boundary deeply involves matters of shame and guilt, rather than of property or personhood. (The very word "private" occurs only once in Paradise Lost, but only in the sense of "secluded".)(FN11)
    Milton's Paradise Lost presents us among other things with a remarkable mythopoetic etiology of everything we think of as "natural," which comes into being at the precise moment of the Fall. There is a powerful moment (Book IX, 1051-59) when we see Adam and Eve confront one other after their first, desperate act of fallen sex (their erotic life before their act of disobedience, Milton tells us, was active and loving but unspiced by guilt and desperation). But making love after their "first disobedience" is different:

 up they rose
 As from unrest, and each the other viewing,
 Soon found their eyes how opened, and their minds
 How darkened; innocence, that as a veil
 Had shadowed them from knowing ill, was gone,
 Just confidence, and native righteousness
 And honour from about them, naked left
 To guilty shame he covered, but his robe
 Uncovered more ...

    Milton's phrase "guilty shame" is all the more interesting when we consider the feeling of guilt about their sexual act. In itself it is no less blameless than their breathing or eating--it is their disobedience for which there is reasonable guilt to be felt, but at this moment it is displaced onto the sex. This might in fact be thought of as a "shameful guilt"; the first shame to be sensed in the world "guilty" because of the general guilt borne by humanity for an original act whose consequences include the origination of shame in the world.
    The consequent origination of a particular desire for privacy occurs shortly thereafter in Adam's outcry:
    O might I here In solitude live savage, in some glade Obscured, where highest woods impenetrable To star or sunlight, spread their umbrage broad And brown as evening: cover me, ye pines Ye cedars, with innumerable boughs Hide me, where I may never see them more (Book IX, 1084-90).
    Adam wants privacy here from the only public gaze that exists at this point, that of the moon and stars and, more closely, Eve (who feels the same about him). This desire leads to the first clothing, designed not to protect bodies from cold, rain, or too burning sunlight, but rather to protect what would eventually come to be called in English the private parts of those bodies from totally impalpable view.
    It might be added that previous to this (Book IV, 505-10), unfallen "privacy" has been prematurely invaded by Satan, who watches them making love, which he finds a "sight hateful, sight tormenting" and says of the two that they are "emparadised / In one another's arms" when in fact they are literal in Paradise, and not metaphorically so, in the language of fallen--or natural--human eroticism. Satan misreads their state as being that of privacy. It is almost obscene to think of privacy, or lying, or civil law, or weaponry, or cooking, or clothing, or calculus, as existing in Paradise. It is Satan who brings the paradigms for the institution of all of these into the garden. Privacy comes into existence as his misconception and as the target of his invasion. Had there been no first act of disobedience, and no Fall, none of Adam and Eve's descendants would have felt a need or desire for--much less a right to--any such condition.
    It may be that a lot of what we mean today by the word privacy has become reified since a right to it was invoked by Brandeis early on. The contour and mass of the realm of personal privacy we might want to protect have become increasingly amorphous. There is a danger of the morally ludicrous in, for example, the loudly implicit belief of so many Americans--fueled to some degree by the lawyers--that somewhere in the Right to Privacy is lodged a Right Not to Have One's Feelings Hurt. There are other, more plausible extensions of the personally private. For example, I would like to claim that a mentally brutal yahoo in a passing or waiting car with his booming bass speakers thrusting unspeakable twaddle into my victimized hearing is infringing upon my right not to hear. But I would dread much more the constitutional consequences of my claim being legally acknowledged. And yet, the default mode for making my claim would probably, these days, invoke some notion of privacy in public as the issue.
    For--as was suggested earlier--an inappropriate transgression of the public boundary can occur in either direction. We usually think of public invasions of an individual's privacy, and tend not to want to think of private invasions of another's privacy. This we usually call intimacy, and consider that there is no invasion but some kind of consent and even extended welcome. Intimacy may usefully be thought of as a contractual agreement between people--canonically but not necessarily two of them--for mutual extension of the diameters of their respective spheres of privacy. But where there are taboos about, say, public exposure--and parts of the human body seem always to be coated with a film of shame--it almost nullifies an individual's rights in his/her body, and thereby infringes on a right to privacy therein.
    Considering the size of particular "spheres of privacy" is a way of dealing with the matter of degrees of privacy, whether of property, person, body, thoughts, or any particular mapping of relations among these. As I noted earlier, one may think of a person at the center of a number of concentric spheres of family, group, polis, and so forth.
    But these are only spherical envelopes. Someone's house may be more private than the rest of her private property, her living room more private than (almost by definition) her foyer, her bedroom more private than her living room. Would her bathroom then be more private than her bedroom? This might depend on the probability that any glimpse--undesired by her--into it would constitute an additional violation. (First, looking into the sanctum, itself an intrusion; second, looking into it while she was there, an additional intrusion; third, being observed doing some particular x or y within that sanctum would cause her to feel yet one more violation, but probably as an intensification of the first one.
    We often talk as if these spheres of privacy become more intimately private as we get closer to the center. But where would we locate that center? One's personhood could itself be thought of as a large sphere, within which body, various bodily parts, minds (themselves comprising perhaps desires, intentions, memories, and so forth). Where--to look at it another way--would we be implicitly locating that center: inside our bodies? our minds? (or, for those who would wish to fill out this traditional taxonomy) our souls? Which would we take as a greater intrusion: to peer into our thoughts or our pants? And don't we often talk as though we would love to have violated the privacy of our own pain, so that someone else could feel it? Even if we could refuse this option, saying "It is a far, far better thing I do not to let you feel this too," the issue would not be one of not wanting the privacy of our physical sensations to go. And, indeed, we all implicitly pray that our sensations of the world and even of something of ourselves are not totally private, lest we be insane.

FOOTNOTES
1 For a discussion of the distinction between idios/demios and idios/koinos--in re a self as opposed to in re the people and what is in common, commonly shared, and the older Homeric word xunos instead of later koinos, see Barrington Moore (1981: 81-83). Moore speculates on the social implications of what he considers to be the different senses of the older and later words. We may also note the terms in modern German that span some of the senses touched on in this paper: Abgeshiedenheit, Zurýckgezogenheit = retirement, seclusion; Verborgenheit = secrecy, hiddenness, concealment; Heimlichkeit = secrecy, secretiveness, mysteriousness; Geheimnis = secret, mystery; Innigkeit = intimacy.
2 On this largely bourgeois sense of "private", see Joseph Rykwert's paper in this issue of Social Research and Raymond Williams (1985).
3 In Boyd vs. U.S. (116 U.S. 616 S.Ct. 524) and, more completely in Mapp. vs. Ohio, four years before the landmark Griswold decision (381 U.S. 479) and cited prominently in it, mentioning a "right to privacy, no less important than any other right carefully and particularly reserved to the people."
4 In the paragraph immediately preceding (ý26), Sir Robt. Fillmer's phrase, "Private Dominion" over the world, is invoked by Locke when he claims, contra Fillmer, that "no body has originally a private Dominion, exclusive of the rest of Mankind" in any of it.
5 I suppose an extreme instance might be, "But what about my DNA?" Is this my "identity"? Would it be quintessentially my private property? How would it differ from a horoscope prepared for me, or the text of a particular divination about me (say, from the lines on my palms)?
6 John Fuller (1998: 88) comments on these lines: "It suggests, with memorable concreteness, that the community will benefit more from contributions from individuals than it will from an organised bureaucracy. It may also contain a sly apologia for private references in the work." Quite possibly, but the specific sexual evocation is strongly there.
7 See in this connection the papers of Bromwich, Kateb, and Margalit in this issue of Social Research.
8 The situation seems parallel to this ludicrous one: I have a jewel box, legitimately acquired, containing jewels still belonging to you. Under our laws, I can do anything I want to the box--sell it, destroy it--with whatever consequences to the jewels inside. Except that, once the box is opened, any jewel I take out of it and is touched by me immediately becomes stolen goods unless handled with your documented permission. So in our normal instance: the language does not become your property as long as it lies ontologically dormant in the writing on the surface of the paper I own.
9 Also see Simmel (1964: 330-376) on secrecy generally.
10 I now wonder what my sort of America was like so as to produce that view in me about 40 years ago. For example, I felt, I suppose, that shame was shameful. But was a sense of false guilt shameful too? Certainly, something about humanity in general was truly guilty of feeling false guilt. And on this score see the discussion of Milton's lines involving "guilty shame" that follows.
11 This occurs in Paradise Lost (V, 106-12):
    Reason ... frames All what we affirm or what deny, and call Our knowledge or opinion; then retires Into her private Cell, when Nature rests. Oft in her absence, mimic Fancy wakes To imitate her, but misjoining shapes, Wild work produces oft, and most in dreams.
    On the other hand, in Paradise Regained, the word "private" has a remarkably powerful dramatic function, being used by Satan in denunciation of the Son; the term is redeemed in the final line of the poem, when it is used in a very complex way, and in any case in partial repudiation of Satan's wielding of it, where the Son "Home to his mother's house private returned."

REFERENCES
    Auden, W. H. and Louis Kronenberger. The Viking Book of Aphorisms. New York: The Viking Press, 1962.
    Ayer, A. J. "Privacy." Proceedings of the British Academy, 1959. Oxford: Oxford University Press, 1960.
    Benedict, Ruth. The Chrysanthemum and the Sword. Boston: Houghton Mifflin, 1946.
    Dickinson, Emily. Selected Poems and Letters. Ed. Robert N. Linscott. New York: Anchor Books, 1959.
    Dickinson, Emily. The Complete Poems of Emily Dickinson. Ed. Thomas H. Johnson. Boston: Little, Brown, 1960.
    Fuller, John. W. H. Auden: A Commentary. Princeton: Princeton University Press, 1998.
    Hobbes, Thomas. Leviathan. Oxford: Oxford University Press, 1952.
    Kateb, George. The Inner Ocean. Ithaca: Cornell University Press, 1992.
    Locke, John. Two Treatises of Government. London, 1690.
    Marvell, Andrew. Selected Poems. Ed. Frank Kermode. Oxford and New York: Oxford University Press, 1994.
    Moore, Jr. Barrington. Privacy: Studies in Social and Cultural History. Armonk, N.Y.: M. E. Sharpe, 1984.
    Santayana, George. Soliloquies in England and Later Soliloquies. London: Constable, 1922.
    Simmel, Georg. The Sociology of Georg Simmel. Trans. and ed. Kurt H. Wolff. Glencoe, Ill.: The Free Press, 1964.
    Thucydides. The Peloponnesian War. Trans. R. Crawley. New York: Random House, 1934.
    Whitman, Walt. Leaves of Grass. New York: W. W. Norton, 1968.
    Williams, Raymond. Keywords. Rev. ed. Oxford: Oxford University Press: 1985.
    Wittgenstein, Ludwig. Philosophical Investigations. Oxford: Blackwell, 1955.

PRIVACY IN ANTIQUITY
    BY JOSEPH RYKWERT
    AT the end of his paper in this volume, John Hollander warns against the erection of privacy into the central principle of thinking; that our sensations of the world "and even of something of ourselves are not totally private, lest we be insane." Against this complete isolation he sets the person whose privacy is conditioned by being installed at the center of concentric social spheres: family, neighborhood, city. I propose to follow him and begin by considering the term personal first; personal and private are contiguous and overlapping notions, after all.
    Stalin famously assured his old friend and associate Nikolai Bukharin that even if he had to be executed--as he indeed was--it would be "nothing against him personally." Commenting on Stalin's remark, George Walden, a British political theorist, remarked that "Nothing Personal might double as the twentieth-century's motto--and its bitterest joke."
Privacy is viewed in all these comments as a faculty, an extension of the person--the person on whose sphere Stalin's shot in the back of the head was not supposed to impinge. Perhaps Stalin had a point though: the bullet would certainly bring an end to the individual, but might not finish off the person. "Individual" and "person" are two more words that we regard as coextensive and use almost interchangeably--even if most of us know well enough that they are not synonymous. It is the difference between them that I would like to consider before I return to our primary business of privacy.
    The individual of whom we speak nowadays is a seventeenth-century construct. He or she--or perhaps it--has been the inevitably singular subject of any mental process ever since Descartes made the thinking ego the sole guarantee of any clear or certain knowledge. Not that the individual is unknown to earlier philosophy: Aristotle had been at great pains to characterize the atomic, the indivisible individual, in the seventh and eighth books of his Metaphysics (1035a, 1045b), and the matter much preoccupied philosophers in the following centuries.
    Long before Descartes, Augustine of Hippo defended the possibility of rational knowledge that had been questioned by Skeptics in previous generations, and against them allowed that he might be mistaken, so that his own cogito would be the possibility of error: Si enim fallor, sum. If I am in error, then I surely am. Someone who did not exist, could not be mistaken, he argues.(FN1)
    Augustine is often regarded as the first writer to articulate the inviolate interiority of the person: "do not wander about, but return to yourself: truth dwells within man," he insisted. But his was a brittle certainty and he would pray for divine help "when he had become a question to himself."(FN2) Yet it was also characteristic of him that he took the possibility of error as the ground of his being.
    Augustinian interiority might be advanced controversially to answer earlier skepticism--particularly that of Cicero--but in the construction of his thought it remains a subordinate concern. It has neither the polemic weight nor the central importance of Descartes' cogito--which became the ground of his thinking after the radical, unfocused skepticism of Pierre Charron and Michel de Montaigne (whom he so much admired). Nearer our time the cogito provided Edmund Husserl with a core he was able to swell and unfold--leading him to opine that "all philosophy was an egology."
    Between Descartes and Husserl the assertive ego-subject became a touchstone of modern, of bourgeois individuality. Yet the thinking subject, an atomic and immaterial res cogitans, cannot have privacy predicated of it since its environment has no grasp on it. The "l" in the cogito can only be private as the tangible res extensa. The connection between the two res, as that between mind and body, is one of the major problems of post-Cartesian philosophy. I therefore seem to be suggesting almost the opposite of A. J. Ayer's view, which John Hollander quoted: "that a privacy which is denied to matter is attributed to mind." And I will be concerned, in what follows, with the conditioning antecedents of our conception of privacy as it has become highly developed in the age of the bourgeoisie.
    Nowadays, many consider privacy a right that is often infringed by various pressures, while others consider it a privilege they are prepared to defend legally and even physically. Privacy has therefore lost the sense of impoverishment and exclusion that it certainly had in antiquity. Hannah Arendt pointed this out long ago:

[T]he privative trait of privacy, indicated in the word itself, was all-important: it means literally a state of being deprived of something, and even of the highest and most human of man's capacities. A man who lived only a private life who--like the slave--was not permitted to enter the public realm--was not fully human. We no longer think of deprivation when we use the word "privacy," and this is partly due to the enormous enrichment of the private sphere through modern individualism (1959: 35/42).

    This privative sense of privacy was rooted in the social conditions of a subsistence society. Hannah Arendt, again:

Individual maintenance [was] the task of the man, and species' survival the task of the woman .... [T]he labor of the man to provide nourishment ... [and] of the woman in giving birth were subject to the same urgency.... Natural community in the household ... was born of necessity, and necessity ruled over all activities performed in it. The realm of the polis, on the contrary, was the sphere of freedom.... What all Greek philosophers, no matter how opposed to polis life, took for granted is that freedom is exclusively located in the political realm, that necessity is primarily a prepolitical phenomenon (1958: 31).

    Of course, Arendt overstated her case. Yet it remains true that the householder who enjoyed the freedom of the polis was always male--women did not usually appear in public space (even if there were exceptions, as when women, disgusted with male warmongering and absenteeism, take over the Athenian Agora and the Akropolis in Aristophanes' Lysistrata). The gender separation of the place of the free agents and that of the ministers to necessity--as between male and female--was often marked by displays.
    Among the most common types of Greek sculpture are the marble or bronze boys, the always naked kouroi, who were juxtaposed to the Doric columns that surrounded buildings, particularly temple buildings; meanwhile, korai, the girls, were always clothed, and were more often on the interior. This contrast was sometimes emphasized by giving Doric temples Ionic features within, as in the Athenian Parthenon. Female nudity is rare in Greek sculpture. The Aphrodite that Praxiteles made for the Cnidians in the reign of Alexander the Great was the first famous Greek female nude.
    Although we know a great deal about Minoan and Mycenacan houses and palaces from archaeologists--that some were two or even three stories, that inner rooms were lit by clerestories or lanterns--we know little about the way in which they were used. When it comes to "classical" Greece, the Greece of the polis--and to Rome--we are much better informed. The Greek houses we know from Delos and Olynthus, and later from Priene and Olympia, even Athens itself, have many common characteristics. They were often two-storied, their access streets narrow alleys, whether winding or straight, and were entered through a yard, which was often colonnaded in larger homes. Entered from the courtyard was the men's room, the andron, which might be lined with built-in couches and even provided with an anteroom. If the andron opened directly onto the entrance court, the women's quarters, the gynaikon, would be more withdrawn. But such divisions were not rigid. Lysias, the fifth-century Athenian advocate or speechwriter and logographer, makes his client, a farmer Euphilos on trial for the murder of Eratosthenes, his wife's lover, explain that.

my little house [{Begin Greek}oikidion{End Greek}] has an upper story, arranged just like the lower one. The men's quarters was planned just like that for the women. When a child was born to me, and the mother suckled it, she was obliged to go downstairs each time she wanted to wash it--and might have fallen. I therefore moved upstairs and the women downstairs.(FN3)

    Euphilos recalls entertaining a friend with whom he went upstairs to dine, though he seems to be explaining a common arrangement to his judges--before whom he was facing a capital charge. Certainly, the female zone in the house was concerned with the affairs of daily life and had no real public equivalent. This could also explain why homosexual dalliance, which went on in the public sphere, has many more literary witnesses than the heterosexual kind.
    In another speech, Lysias provides a witness to the withdrawn nature of the gynaikon in the context of a quarrel between two older men over their boy-lover. The plaintiff complains that his rival

broke into my house at night drunk, smashed the doors and got into the women's rooms where my sister and my nieces were, who are so reserved that they blush even to meet their closest kin (Against Simon. III.6 ff.).

Privacy is here presented as women's business. As for the dinner Euphilos gave his friend the night before the murder for which he was tried, it would have been a small affair, if not a private one. Any common meal in a Greek household, the deipnon, might include guests and was a family occasion, usually taken in the main room, which, like the house itself was called oikos. The more celebratory estion or hearth meal would be taken wherever the sacred house fire might be located. Lysias is also witness to the fire's sanctity in the speech quoted earlier--had the wretched Eratosthenes taken sanctuary ({Begin Greek}epi thu estian) {End Greek}by the household hearth, the verdict in the trail might have gone against his murderer (1.27).
    Other kinds of meals, such as the festive and solemn eranos, might be an all-male affair, taken in the reception room, while the all-male afterdinner party, the symposion (which Plato consecrated), would certainly have been held in the andron, whatever the size of house. Seven seems to have been the ideal number for it--"seven is a feast, nine a scramble" was an old saw,(FN4) and it was often what we now call a "bottle party": the food and drink were contributed by guests, who would start by choosing their leader (not necessarily the host) to direct the order of seating and the proportion of water to wine (wine was always diluted in respectable houses). The leader could also discipline disorderly guests.
    There was a direct correspondence between the andron, the male and un-private zone of the house, and the prytaneion, the men's public meeting and feasting house on the Agora where much eating and drinking was also done. It was where ambassadors as well as heroes would be feasted. Most cities had one, and they (or a neighboring building) also housed the city flame on the altar of Hestia. Although she was not as prominent in the city as her Latin sibling Vesta, Hestia's altar was important to the life of the polis. The correspondence between the domestic and the civic hearth, between andron and prytaneion, was further emphasized by the notion that certain places that could be regarded as quintessentially Greek might be called the prytaneion of the land: "that which the prytancion is to the city, this city has been to all Hellas" says the Smyrnan rhetorician Aelius Aristides (surnamed Theodorus) in his praise of Athens (The Panathenaicus 179.11).
    The Etruscans had no such segregated quarters between men and women, and unlike the Greeks would often show men reclining and even embracing their womenfolk publicly but respectably on their domestic couches--as they did on their tombs. In contrast, the more virtuous and straightlaced old Romans dined--and sometimes even slept--sitting up, and when, after the time of the dictator Marius, they came to recline at meals (like the Etruscans and the Greeks), the women who accompanied them would sit on chairs (Val. Max. II.1.ii).
    The greater respectability of sitting was shown when the Latins invited the gods to dine. Greek mortals rarely invited the gods to a meal, but the Romans had a rite, the lectisternium, when gods and goddesses might be bidden to attend a public feast on special occasions (the conquest of Veii, an explosion of Vesuvius, for example). But even then goddesses could not--respectably--recline (or so it was thought in imperial times) and they sat upright. When they were not accompanying their consorts, their sit-down meal was called a sellisternum.
    The Etruscans and the Greeks were usually attired quite decorously for their meals. As for washing and bathing, only larger houses would have private baths with hot water; for most Greeks and Romans, bathing was a public function and was associated with the gymnasia, as at Delphi and Olympia, though the Greeks did not go in for the luxury associated with Roman public baths. Gymnasium (from {Begin Greek}gnmuoz, {End Greek}naked) implied exercise taken naked. In any case, male nudity was familiar enough--as Greek sculpture shows--and Hermes with his erect penis guarded streetcorners while huge winged phalloi were carried in processions, particularly at the great Dionysian celebrations.
    Whatever the smutty comedians wrote, there was therefore no particular embarrassment associated with male nudity. The sexual organs--which we now call private parts--were not called pudenda, shameful parts, until the fourth century A.D. Female nudity was a more private matter though, and the scantily dressed women who appeared at Greek men's banquets were usually dissolute characters such as flute players, dancers--or some even less reputable ones. And by the fourth century, female bathers are shown wearing brief costurnes, Roman bikinis, in the mosaic floor at an imperial villa at Piazza Armerina, not far from Syracuse, which is usually also dated to the fourth century.
    At the same time nudity--in the baths, in the theater, at games--was accepted, though often under protest by many Christians, even if preachers (John Chrysostom, Jerome, and many others) warned against the dangers of indulgence it offered and saw it also as a test of class justice: the ravaged and exploited bodies of the naked poor made a sharp contrast with the well-fed, cosmetically smoothed bodies of the rich and privileged. Increasing shame at sexual exposition was joined to indignation at social inequity (see Brown, 1988: 87 ff., 315 ff.). Shame became a social factor of growing importance.
    Yet there was nothing especially private about latrines or defecation. Drainage of both latrines and kitchen waste was only exceptionally through channels outside the house, which were sometimes open but occasionally underground--or into septic tanks. For the most part, waste matter went from pails or chamber pots into slop buckets, which were sometimes emptied by public-service dung carts and carried out of town. Although they had closestools, the Greeks did not seem to have made any fixed provision for such physiological functions, but Roman latrines--such as the ones at Piazza Armerina--were quite splendid and conversational chambers. A common term for them was necessarium. In the laws of the Emperor Theodosius (compiled after 380 A.D.), the word privatum is used for a bath, but it was not until the second millennium that it came to signify the room we now call privy--a thirteenth-century dictionary makes it a synonym of latrina, which is itself a contraction of lavatorium.(FN5)
    Although the sense of shame we now associate with defecation and urination may not be absolutely universal, it seems to be nearly so. In many preliterate societies, people who might urinate semipublicly as a matter of course will withdraw outside the house or even outside the settlement--into uncultivated bush--to defecate. Toilet training of small children is also very general (see Moore, 1983: 59 ff.). Some anthropologists want to associate the shame with the defenselessness that these functions impose, the vulnerability of the squatting, exposed figure, while others talk of the inherent ridiculousness of the bodily positions. This is also true of another physiological function, copulation. It was Erasmus who observed that no one can be born without two other people making fools of themselves first.
    The Romans, following the Etruscans, did not attempt the strict gender segregation the Greeks practiced in their houses. The typical plan of the Roman house seems to have been devised by the Etruscans and was a one-story arrangement. Entering through a narrow vestibule, the visitor came into the atrium--which in modern parlance has come to mean a multistory generously glazed public hall, although in Latin the term is related to blackness, ink, smokiness--where the household altar stood. Even in later houses, such as those at Pompeii, the majority of atria had black mosaic floors and black-based wall painting. The roof was open to the sky and the rectangular opening corresponded to a pool in the floor that provided a reservoir of rainwater. It was lined on either side by bedrooms, cubicula. Opposite the entry was that altar, the seat of the paterfamilias and the household gods, and beyond it the tablinium, once the master bedroom but later the official reception room and the family archive. It was often closed in earlier houses but open in later ones, leading to peristyles and gardens.
    On either side of the atrium, just before the tablinium, opened the wings, the alae, perhaps used as anterooms for clients waiting to see the master of the house in the tablinium. In these were kept the personae, the masks of ancestors. This is what a persona primarily meant in Latin, a theatrical or a ritual mask. They would spill over into the atrium--and were so important that people would hang some masks of fictitious ancestors to claim antiquity for their family.(FN6)
    There was some discussion among old grammarians about the origin of the word. A few even suggested that it worked as an acoustic aid, allowing the actor to sound louder, personare. But most of them--and modern authorities agree--thought that the word was a Latinized form of the Etruscan word for mask, Phiersu. It is at any rate used to translate the Greek {Begin Greek}prosqpou{End Greek}--which had moved from the sense of front or face to mean mask by the time of Aeschylus. It is therefore appropriate that persona should also come to mean the type of person: after all, masks represented types, not individuals, their character, even their reputation. This was extended in Roman law to signify any group that could bring a case in law as a collective body, or yet be sued--cities, colleges, even an estate in search of an heir. That complex of ideas always clusters about persona--the character, the presentation of self, the juridical entity acting in society. It is a physical and a social entity before it can transform itself in the Augustinian sense--and before it can feel shame.
    The masked and typecast person does not invite considerations of privacy. A masked figure could not be individuated, nor could it have a private life. What interiority it had was for public consumption. If such a figure felt shame, this would have to do with honor and station--with public disgrace, not with an inner state. But even that masked and unprivate emotion is analogous to the shame of which we are all more or less capable. The analogy depends on the self-reflexive nature of shame: "Through shame I [discover] an aspect of my being.... Shame is by its nature, a recognition. I recognize that I am as the Other sees me ..." observed Jean-Paul Sartre (1956: 221 f.).
    The moment of shame always requires, even exacts privacy. Adam and Eve, having come to know good and evil by eating the fatal fruit, saw that they were naked and sheltered behind their fig-leaf aprons for primal privacy. The Other in their case was each other--and their creator. It was different from the public disgrace that the masked figure would have experienced. That frontal presentation, which the impassive mask offered the actor who wore it, is ambivalent. The mask shelters his or her inner life, inviting them to become typecast characters. But it also gave emphasis to the interplay between the characters, and made their confrontations clamorous and harsh, so that the moments of shame and disgrace--as in the tragedies of Medea or Oedipus--become real catastrophes.
    Because shame can only be experienced in the face of another, it has never been nor can it become an individual state of mind; nor can it ever, as I suggested at the beginning of this paper, be attributed to the bodiless mind, the res cogitans. The piling of antique detail in which I have perhaps overindulged leads me to conclude that privacy can only be the attribute and the demand of the socially rooted person.
    In a sense, perhaps Stalin did have a point. It was the private individual the executioner would kill. The person--his name and his deeds--would not fall to the same bullet.

FOOTNOTES
1 Aurelius Augustinus Conf. X.17: "... domine Deus meus, exaudi et respice et sana me, in cuius oculis mihi quaestio factus sum...." De Civitate Dei XI.26: "mihi esse me idque nosse et amare certissimum est .... Quid si falleris? Si enim fallor, sum. Nam qui non est, utique nec falli potest; ac per hoc sum si fallor ...."
2 "Noli foras ire, in te redi. In interiore homini habitat veritas." Quoted in Husserl (1969: 134).
3 He was absolved, having killed his wife's seducer. Lysias, On the Murder of Eratosthenes 1.9 ff.
4 Septem convivium, novem vero convitium. Scrip. Hist. Aug. (Vero Imperator, V.1). But the number is often debated. Aulus Gellius (Noct. Att. XIII.11) suggests that it might be between the number of graces (three) and the muses (nine), while the fourth-century gastronome-poet Archestratos (quoted in Athenaios's Deipnosophistae I) debated the merits of three, four, and five guests (he considered five the maximum).
5 John Garland (Johannes de Garlandia; b. 1108) in synonymis, quoted by Du Cange, s.v. Privada vel Privata:
    Est latrina locus idem cacabunda cloaca Signat idem quasi triste tegens tristega vocatur Nec non privata coniungimus his sociando
6 Seneca Ep. ad Lucilium V.44.5; Consolatio ad Polyb. XIV.3; Anon. Laus Pisonis. See also Juvenal VIII.19-20; Martial II.90, IV.40; V.20; Pliny N.H. XXXV.2; Petron, Sat. XXIX.8.

REFERENCES
    Arendt, Hannah. The Human Condition. Chicago: University of Chicago Press, 1958. New York: Anchor Books, 1959.
    Brown, Peter. The Body and Society. New York: Columbia University Press, 1988.
    Du Cange, Sieur Charles du Fresne. Glossarium ad Scriptores Mediae et Infimae Latinitatis. Niort, 1883-1887 [Paris, 1678].
    Husserl, Edmund. Mýditations Cartesiennes. Paris: J. Vrin, 1969.
    Moore, Jr. Barrington. Privacy: Studies in Social and Cultural History. Armonk, N.Y.: M. E. Sharpe, 1984.
    Sartre, Jean-Paul. Being and Nothingness. New York: Philosophical Library, 1956.

PRIVACY AND DOCUMENTARY FILMMAKING
    BY FREDERICK WISEMAN
    I MAKE documentary films based on unstaged events using the photographs and voices of people who are not actors and who are not asked to do anything other than give their permission to be included in the film. In this paper I will discuss some of the practical problems involved in obtaining their consent and the relationship of the procedures I follow to privacy issues.
    First a brief introduction to the technique. My films are shot with a handheld 16 mm camera and a handheld tape recorder and microphone. There is no narration and the events are not staged. Most of the sequences are shot with natural light. Very occasionally it is necessary to augment natural light with a stronger lightbulb and perhaps five times in 35 years with a very powerful light called a sun gun.
    Many but not all of my films are about public institutions. They are public in the sense that they are supported by tax money collected by public authorities--city, state, or federal--and exist to provide services such as education, health care, welfare, and police to the community. Some of the films are concerned with private institutions and the privacy issues take a somewhat different form. I will discuss some of the differences later.
    I try to obtain permission from the people in the films to use their photographs and voices. Sometimes I receive permission before the sequence is shot, sometimes immediately afterward. If the person photographed objects to his or her picture or voice being used, I do not use it--even if the sequence is shot. Their objection has to be expressed either before, during, or immediately after the event in which they participate has been photographed and recorded. I do not obtain written releases but ask for and receive tape-recorded consents. Some people are frightened of signing written releases phrased in formal legal language either because they are fearful they won't understand the language used and may be giving away more than they realized or because of the formal nature of the document.
    The method is as follows. I ask the person whose picture and voice I want to record or have already recorded for permission to use their image and voice. I tell them that the tape recorder is recording and that I am going to explain to them the nature of the film I am making, the technique that I use, and where the film will be shown--for example, public television, schools, libraries, colleges, and some theatrical distribution in the United States (with the possibility but not the certainty of a similar distribution in other countries). I explain that often over 100 hours of film will be shot and that only about 3 percent of the material is used in the final film. I tell them that the film will not be finished for at least one year and that other than festival showing, the first public showing will be on public television in America.
    I then ask them if they have any questions and, if they do, respond to their inquiries. I ask if they have understood my explanation and if so if they have any objection to their picture and voice being used in the film. Ninety-nine point nine percent of the people asked give their permission. When they do give their consent I ask them to give me their names and addresses, which are recorded on the tape. This gives me a contemporaneous record of the consent of the participants.
    I think that people agree to be in a documentary film for a variety of reasons. Some want others to know of their experience. They hope that their behavior can provide a model of either what to do or what not to do. For example, women in a shelter for battered women agreed to be filmed because they wanted other women to know that it was possible to get out of abusive relationships and also because they wanted to inform people unfamiliar with domestic violence about the nature of the relationship they were trying to escape. Another possible explanation is related to wanting to share the feeling of competence and a job well done with others. Some people filmed, like the doctors and nurses in a medical intensive care unit, want to participate in informing the public about the life-and-death issues they have to deal with on a daily basis and want to share their method and offer it for critique. The doctors and nurses assumed that most people are unfamiliar with the questions they have to resolve regularly and that presenting these issues in their complexity would contribute to public knowledge and help others to think more clearly about these questions.
    Some people agree to participate out of vanity. Some from indifference. In hierarchical organizations like the army and police, participation may result from an actual order or a need to follow the dictates of a fantasy about the imagined need to comply with the orders of a superior. Some may consent for a combination of all these reasons. As I noted, my experience is that for whatever reason, nearly all the people asked agree to be in the film.
    A sequence from a film I made about the Kansas City, Missouri police in 1968 illustrates the way privacy issues are raised. To make an arrest for prostitution in Kansas City in 1968, the police had to have a price offered and an act. The law made it almost necessary for a vice squad police officer to strip at least to his underpants and get in bed with the woman before, presumably, at the last minute, the arrest was made.
    Such an event took place in a Kansas City hotel. When the vice-squad policeman led the woman from the hotel room she pulled away from him, knocking him over and fleeing. The policeman called other members of the vice squad, who were waiting in a police car in the neighborhood of the hotel. We were also in the vice-squad car. When the officers arrived at the hotel a bellhop informed them that the woman had fled to the basement. The police went to the basement looking for her. The basement was dark and I had available a powerful light called a sun gun; it would have been impossible to shoot any film otherwise. The police found the woman hiding under a pile of old furniture, dragged her out from beneath it, and then one of the policeman began to strangle her. Before she passed out the policeman stopped strangling her. The woman, gasping for breath, said to the policeman that he was trying to strangle her. His reply was that she was just imagining it. But it was clear from the film that the policeman was strangling the woman.
    The sequence I described was shot on 16 mm film and a still photograph from the film accompanies this article. Another part of the same sequence included a visit by one of the vice-squad officers to the hotel room of the women, where he examines her personal belongings and takes possession of her address book. He looks through it and asks her if she is friendly with other women whom he says are prostitutes and whose names he has found in the address book. She is eventually taken to the police station and booked for prostitution. I asked the woman for permission when she was in the police car on the way to the station and followed the procedure I outlined earlier. The film, Law and Order, was shown on public television with an edited version of the sequence I have described.
    Up to this point I have emphasized the consent I received from the woman who was arrested. However, there were others whose permission was needed. I had to have the permission of the chief of police in Kansas City to ride with the police and record their day-to-day activities. I also needed the consent of the individual policemen and policewomen. In the six weeks I was with the Kansas City Police, no police officer ever objected to being photographed and recorded. I did not take the same care to obtain their individual consents that I did with people they came in contact with and/or arrested. I knew that a letter had come from the chief to the captain in charge of the precinct where I worked asking that all the officers in the precinct cooperate with the filming. Since the police are a hierarchical organization, the officers complied with the orders of the chief. It was impossible for me to know if they individually had strong objections. I could only assume that if they did not want to be filmed they would have found a way to avoid my riding in the police car with them. I also assumed that they were sizing me up in the same way I felt I was trying to form an opinion about them. Despite the hierarchical nature of the department, if the police felt that I could not be trusted, they would have found a way not to cooperate either by presenting subtle indirect obstacles or by going to the chief and saying that the film crew was interfering with their work.
    Police activity in a democratic society is supposed to be transparent and any comment about police work is thought to be protected by the First Amendment. It would be impossible, however, to obtain police cooperation for the kind of films that I make if they did not want to participate, despite the existence of the First Amendment. The courts have generally ruled that when a conflict emerges between the First Amendment and the right to privacy, the protection of the First Amendment is the dominant value. To obtain the permission of the individual officers it was necessary to talk with them about matters of common interest with the hope that they would come to the conclusion that I could be trusted to accurately report on their work. I also had to be sure that the conversation concerned genuine areas of shared interest, otherwise I risked appearing to be condescending.
    A strong argument can be made that in the police-prostitute sequence described, it is not necessary to have the formal consent of any of the participants. Certainly not of the police and perhaps not even the woman. Suppose, for example, that the woman did not give her consent or that she gave it but did not fully understand the implications of showing this aspect of her life on public television. Does that mean the sequence cannot be broadcast and also shown in other forms, such as videocassette, laser, or DVD? My view is that if the institution is public, in the sense indicated earlier, neither a tape-recorded consent nor a written release is necessary and that this police sequence and any others involving work performed or activities that take place in public institutions are fully protected by the First Amendment. In these situations the individual right to privacy is less important than the values expressed in the phrase, "the public's right to know."
    Despite this absolutist First Amendment view with respect to presenting on film the daily activities at public institutions, I try--even though I am not legally obligated to do so--to obtain the tape-recorded consents because I believe it is the ethical and fair thing to do. The fact that people readily give their consent does not necessarily mean that they understand the implications regarding the use of the material. One could argue that the only valid consent would be consent obtained only after participants had seen the final film and could see and hear how the sequences in which they had participated were edited and how they were placed in relation to other sequences.
    This would be completely impractical for several reasons. It would give the participants individually and collectively a right to veto part or all of the final film. It would be impossible to find funding for the film if the funding source knew that at the end of the editing the participants could prevent the film from being shown. Also, with some subjects it would be impossible 12 to 18 months after the filming to find all the people. I believe it is necessary to act on the same assumption that operates in other areas of the law and in medicine and indeed in most aspects of our lives. The assumption is that people who fall within the range of the various legal definitions of competency have the ability to understand, evaluate, and act on a request to participate in a documentary film and that they understand the implications of their choice and decision.
    The situation is different with respect to activities in private institutions. In these institutions I try to carefully obtain tape-recorded consents from the participants. While retaining some force, the "transparency" argument applicable to public places cannot so easily be applied to private institutions unless one can convincingly assert their "de facto" public role.
    In a democratic society the need for the citizens of a community to have access to information about the way their public institutions function takes precedence over individual privacy rights. The issue goes well beyond the need to protect the right of documentary filmmakers to work. If it were otherwise, society runs the risk of the state closing down the sources of information necessary for citizens to make decisions about the way they want to live.
From Law and Order

PART II

PRIVACY AND THE LAW: THE LEGAL CONSTRUCTION OF PRIVACY

INTRODUCTION: THE LEGAL CONSTRUCTION OF PRIVACY
    BY FREDERICK SCHAUER
    ARECURRING theme in the literature on privacy is the multivalent nature of the word "privacy" itself. When we speak of private property we mean something quite different from when we speak of private parts, although there are obviously connections between the work that the word "private" does in the two different contexts. When the law is brought into the picture, the multivalence multiplies. The right to privacy may refer to the right to sue someone who publishes a picture without the subject's permission; the right to keep information about a person's history from advertisers and law enforcement agencies; the right to keep police outside of one's home unless they first obtain a search warrant; and, perhaps most saliently in the contemporary United States, the right to be free from state interference in making a wide range of personal choices, including but not limited to the choice whether to obtain an abortion.
    In some societies law's actions and concepts may rarely penetrate the larger society. Lawyers in these societies may occupy a position not dissimilar to that of dentists: essential actors in the play of life, but hardly in the foreground of popular consciousness, and thus largely cordoned off from ordinary language and everyday discourse. But in other societies the law plays a larger role, and its concepts, its categories, and its language become part of the concepts, categories, and language even of those who neither inhabit nor self-consciously use the legal apparatus. The United States, of course, is the prototypical example of this latter type of society, and it should come as no surprise that in a society in which entire television channels are devoted to the law, legal ideas and language permeate the larger culture.
    As a consequence of this permeation, the law's use of the language of privacy has become an influential source of popular ideas about privacy and thus about the concept of privacy itself. This is particularly apparent in the understanding of privacy as choice; little in the pre-1965 interpretation of the idea of privacy would have suggested that privacy was the appropriate rubric for the kind of autonomy-based arguments against state interference with self-regarding behavior that had hitherto been associated more with Chapter One of John Stuart Mill's On Liberty than with anything in the Constitution of the United States. With Griswold v. Connecticut the Supreme Court changed all of that, not only for the law, but for society. The history of the relationship between the Supreme Court's development of the constitutional right of privacy and the public's acceptance of that understanding of the right to privacy is the central theme of David Garrow's "Privacy and the American Constitution." Using the hearings on the nomination of Robert Bork to be a justice of the Supreme Court to highlight the gap between how Griswold (and later Roe v. Wade) have played better in the public arena than in the law reviews, Garrow asks us to consider whether what he calls the "elite conversation" about privacy has failed to capture the importance of privacy as choice in American life, whether it has failed to capture the importance of privacy as resistance to state interference in American consciousness, and whether it has failed to capture the way in which the nonelite conversation, a conversation that has accepted Griswold's ideas of privacy far less critically, is perhaps Griswold's most enduring legacy.
    In "Is My Body My Property?" David Richards places less emphasis on public understanding than does Garrow. Although Richards plainly agrees with Garrow about the correctness of Supreme Court doctrine starting with Griswold, Richards sees these developments not only historically but also philosophically. For him Griswold represents an important recognition of a preexisting moral right, and the commentators who have failed to recognize this, Richards can be seen as arguing, have misunderstood the essentially moral dimensions of the Constitution. But if this is so, Richards argues, there is no excuse not to extend the essential rights recognized in--but not created by--Griswold and Roe to the right of persons to express their sexuality as they see fit, unconstrained by antihomosexuality laws that represent a fundamental failure to understand the idea of privacy as personal and intimate choice.
    Taken together, the Garrow and Richards essays represent an understanding of privacy that has dominated the subject for more than three decades. That this understanding was shaped by the Supreme Court is strong evidence of the power of the law to construct larger understandings of the idea of privacy, and perhaps even stronger evidence of the power of law in general to set the agenda of much of American historical, political, and moral discourse.

PRIVACY AND THE AMERICAN CONSTITUTION
    BY DAVID J. GARROW
    WITHIN America's modern constitutional tradition, both "privacy" as a single word and the "right to privacy" as a legal concept are almost universally associated with the famous 1965 Supreme Court ruling in Griswold v. Connecticut (381 U.S. 479, 1965), which struck down a long-standing state criminal statute that prohibited the use of contraceptives even by married couples (Garrow, 1994a: 1-259). The court's majority opinion in Griswold, authored by Justice William O. Douglas and supported by only the necessary minimum of five justices, offered an enthusiastic paean to the importance of marriage in American life but failed to provide any explicit constitutional grounding for the recognition of a "right" that was not itself specifically named anywhere in the Constitution's own text. That failure notwithstanding, Griswold's invocation of a constitutional right to privacy inspired a handful of youthful attorneys to envision how Griswold's shielding of marital contraception could be expanded to encompass constitutional protection for a pregnant woman's choice to obtain a legal and medically safe abortion (Garrow, 1994a: 335-388), and within less than eight years that legal crusade triumphed with the landmark pair of Supreme Court decisions in Roe v. Wade (410 U.S. 113 (1973)) and Doe v. Bolton (410 U.S. 179 (1973)).
    Ironically, that 1973 triumph in Roe v. Wade, rather than presaging expanded acceptance of constitutional protection of the right to privacy, turned out instead to be the high-water mark for constitutional privacy as a legal concept. Over the past quarter century, and especially over the past decade, as public and civic elite interest in protecting manifold aspects of individual privacy has expanded at a seemingly exponential rate as a result of the ongoing information technology revolution, recognition of "privacy" as an important right or even cognizable constitutional concept by the Supreme Court has all but vanished. As every attentive student of the court knows well, the court's remarkable 1992 reaffirmation of the constitutional core of Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833 (1992)) took place in an opinion in which invocation of the constitutional concept of "liberty" completely and utterly supplanted the court's previous employment of "privacy" as the operative legal construct. Privacy's complete disappearance from the court's constitutional worldview was quietly and indeed silently underscored in June 2000 when the court's majority opinion in its first abortion case since Casey, Stenberg v. Carhart (120 S.Ct. 2597 (2000)), failed to mention the word "privacy" even once.
    This conundrum--why has privacy as a constitutional value all but disappeared from the radar screen of the United States Supreme Court at the same time that cultural commentators and legal observers have been calling more and more attention to the concept's importance (see, e.g., Rosen, 2000)--is actually susceptible to a far simpler--and perhaps more depressing--answer than many might suspect. Privacy as a reputable constitutional concept has been the victim--and probably in all truthfulness the no longer breathing or revivable victim--of the constitutional commentators whose academic assaults on first Griswold and then far more so Roe have left both of those rulings with the widespread reputation of being either an analytical laughingstock or at least an academic embarrassment. "Privacy" may be widely embraced and celebrated within the popular culture as a legal value of preminent importance, but hardly anyone looks askance at a sitting Supreme Court justice openly displaying in his chambers a sign--"Please don't emanate in the penumbras"--that mocks the court's majority opinion in Griswold (see Carelli, 1994, reporting that Justice Clarence Thomas displays such a sign).
    It is this devastating reputational injury to constitutional privacy over the course of the past generation that will make any restoration of substantive acceptance of the concept an extremely difficult and perhaps impossible undertaking. My task here does not encompass the narrower Fourth Amendment realm where constitutional "privacy" within the ambit of search and seizure and the warrant clause has likewise been in serious decline ever since its own high-water mark in Katz v. United States (389 U.S. 347 (1967)), but it is of considerable import to our undertaking to examine why privacy as a constitutional concept and prospective "right" is in more dire circumstances at the advent of the twenty-first century than it was at the beginning of the twentieth.
    The constitutional right to privacy that the Supreme Court first acknowledged in Griswold had its earliest American origins in a trio of late nineteenth-century writings. The legal scholar Thomas Cooley's 1888 coining of the phrase the "right to be let alone" was the first of the three (Cooley, 1888: 29), but the initial apparent public invocation of "the right to privacy" itself took place in 1890 when the well-known journalist E. L. Godkin, writing in Scribner's Magazine, attacked tawdry and intrusive newspaper stories.
    Just five months later, in what was to become one of the most renowned law review articles of all time, two young Boston lawyers, Samuel D. Warren and Louis D. Brandeis, used that very phrase as the title of a Harvard Law Review essay that advocated legal recognition of "a general right to privacy for thoughts, emotions and sensations" (206).(FN1) As with Godkin, it was "the unwarranted invasion of individual privacy" (215) by journalists that most concerned Warren and Brandeis, who wanted legal protection for "the private life, habits, acts, and relations of an individual" (216). Their call to "protect the privacy of private life" (215) won approbation both in popular magazines such as The Nation ("The Right to Privacy," 1890) and in other law reviews,(FN2) but in its first major courtroom test, in 1902, the Warren and Brandeis argument came out on the losing side of a four-to-three decision by the New York Court of Appeals in Roberson v. Rochester Folding Box Co. (171 N.Y. 538 (1902)).
    That ruling, which refused to vindicate a claim by a young woman whose photograph had been used without her permission in a baking products ad for the "flour of the family," met with widespread public and professional criticism (see Mensel, 1991, esp. 36-40, and O'Brien, 1902, a rather defensive rejoinder to the critics of Roberson by one of the four judges who had endorsed the majority opinion). However, just three years later, when a Georgia man filed suit against a life insurance company that had similarly used his photograph in its advertising without obtaining his permission, the Georgia Supreme Court rendered the first American ruling embracing a tort law right of privacy. "Each person has a liberty of privacy," the Georgia court held, "derived from natural law" and protected by constitutional due process. "The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence" (Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69-71 (1905)).
    The Georgia decision in favor of Paolo Pavesich received widespread legal praise,(FN3) and once Louis Brandeis himself ascended to a seat on the United States Supreme Court in 1916, opportunities to introduce the privacy concept into high court opinions, albeit in dissent, were not long in coming.(FN4) In 1920 Brandeis spoke of "the privacy and freedom of the home" in Gilbert v. Minnesota (254 U.S. 325, 335 (1920)), and eight years later, in his famous dissent in Olmstead v. United States (an early wiretapping case), Brandeis linked Cooley's early phrase to the Fourth Amendment's prohibition of "unreasonable searches and seizures." The Constitution, Brandeis asserted, "conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment" (277 U.S. 438, 478 (1928)).
    After Brandeis's retirement, two majority opinions, the first by Justice Wiley B. Rutledge in Prince v. Massachusetts in 1944, and the second by Justice William O. Douglas in 1948 in McDonald v. United States, each explicitly invoked privacy.(FN5) Rutledge spoke of "the private realm of family life which the state cannot enter" (Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)), and Douglas in McDonald invoked both "the constitutional barrier that protects the privacy of the individual" as well as a similarly protected "privacy of the home" (335 U.S. 451, 455-56 (1948). See also Davis v. United States, 328 U.S. 582, 587 (1946) and Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). Four years later, writing this time in dissent, Douglas spoke of "the constitutional right to be let alone" and asserted that "Liberty in the constitutional sense must mean more than freedom from unlawful government restraint; it must include privacy as well, if it is to be a repository of freedom" (Public Utilities Commission v. Pollak, 343 U.S. 451, 467, 468 (1952)).(FN6)
    Prior to the court's decision of Griswold v. Connecticut, arguably the best argument for constitutional privacy to appear in a Supreme Court opinion occurred in Justice Douglas's dissent in Griswold's own immediate precursor, Poe v. Ullman, in 1961. Both at that time and in later years, Douglas's Poe dissent was significantly overshadowed by Justice John Marshall Harlan's extremely influential dissent, which articulated an explicitly substantive due process liberty application of the Fourteenth Amendment (367 U.S. 497, 522 (1961)). Douglas, however, contended in Poe that any actual enforcement of Connecticut's criminal prohibition of the use of contraceptives against married couples would be "an invasion of the privacy that is implicit in a free society" and that legally "emanates from the totality of the constitutional scheme under which we live" (367 U.S. 497, 509, 521 (1961)).
    Douglas's 1965 Griswold opinion, joined by Justices Tom C. Clark, William J. Brennan, Jr., and Arthur J. Goldberg, and by Chief Justice Earl Warren,(FN7) simultaneously created an apparently fundamental (although nontextual) constitutional right to privacy and placed the newly acknowledged right on an extremely tenuous and uncertain analytical footing. Less than seven pages in length, Douglas's majority opinion disclaimed any reliance on the kind of substantive due process philosophy that underlay Justice Harlan's Poe dissent (as well as Harlan's own separate concurrence in Griswold itself [381 U.S. 479, 501 (1965)]) and began its affirmative argument by invoking the previously recognized but otherwise nontextual First Amendment-based right of association. Asserting that the First Amendment "has a penumbra where privacy is protected from governmental intrusion" (381 U.S. 479, 483 (1965)), Douglas then cited several cases, including Schware v. Board of Bar Examiners (353 U.S. 232 (1957)), before enlarging on his First Amendment conclusion to declare that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." After citing his own Poe dissent in support of that view, Douglas then concluded that "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment" was one, and the Third, Fourth, and Fifth Amendments likewise each protected another "facet" or "zone" of privacy (381 U.S. 479, 484 (1965)).
    After quoting the Ninth Amendment without further comment and appending several additional case and commentary citations, Douglas in his penultimate paragraph declared that Griswold's invocation of marriage "concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Connecticut's outlawing of contraception, he added, "seeks to achieve its goals by means having a maximum destructive impact upon that relationship" and police searches of "the sacred precincts of marital bedrooms," Douglas rhetorically volunteered, would be "repulsive to the notions of privacy surrounding the marriage relationship." Douglas's final paragraph offered an endorsement of the importance of marriage and asserted that "We deal with a right of privacy older than the Bill of Rights" (381 U.S. 479, 485, 486 (1965)).
    In the months and years immediately following the handing down of Griswold in June 1965, virtually every legal commentator who addressed the case agreed that it had been correctly decided, but many also voiced discomfort with the "nebulous language" Douglas had used in the majority opinion (Wilkins, 1966: 306. See also additional citations collected in Garrow, 1994: 784-85 n. 87). Perhaps the most insightful law review discussion of Griswold was offered by Robert G. Dixon, who explained that "By invoking the married couples' fictional fear of prosecution for use of contraceptives to give the clinic defendants"--Connecticut Planned Parenthood Executive Director Estelle T. Griswold and Planned Parenthood medical director Dr. C. Lee Buxton--"standing to defend themselves from actual prosecution for giving advice, the Court tied marital privacy and access to information together into a single bundle of rights." Dixon concluded that "unless some kind of information-access theory is recognized as implicit in Griswold, then it stands as a decision without a satisfying rationale" (Dixon, 1965: 214, 217).
    But many commentators were more expressly critical than Dixon. One complained about Douglas's "curious, puzzling mixture of reasoning" and about the decision's "ambiguous and uncertain reach" (Kauper, 1965: 242, 244). Another, more impassioned critic, writing in the New York University Law Review, attacked Griswold as "a malformation of constitutional law which thrives because of the conceptual vacuum surrounding the legal notion of privacy" (Gross, 1967: 35). Most critics, however, were more measured, saying that the opinion was "far from satisfying," "shot through with serious weaknesses," or "rather opaque" (Blackshield, 1966: 404; Bodenheimer, 1966: 458; Greenawalt, 1971: 478). "Only the rhapsody on marriage," one later commentator wrote, "saves an opinion whose concepts fall suddenly in a heap" (Gerety, 1981: 152).(FN8)
    A number of critics zeroed in on Douglas's use of the term "penumbra." First coined in 1604 by the astronomer Johannes Kepler to describe the area of shaded or partial illumination occasioned by an eclipse, several subsequent commentators concluded that Griswold's use of the astronomical metaphor was "obfuscating rather than clarifying" (Allen, 1987: 478 n.).(FN9) Many critics failed to realize that Douglas was far from the first Supreme Court justice to employ "penumbra" in an opinion, and that many of the more than 20 previous invocations appeared in opinions authored by some of the court's most illustrious members.(FN10) Oliver Wendell Holmes had employed the word in an 1873 article--"the penumbra between darkness and light"--and had subsequently used it three times while serving on the Massachusetts Supreme Judicial Court. After joining the United States Supreme Court, Holmes employed penumbra in four additional opinions, including a dissent of his own in Olmstead v. United States, where he spoke of "the penumbra of the Fourth and Fifth Amendments" (277 U.S. 438, 469 (1928)). Benjamin Cardozo, Second Circuit Court of Appeals Judge Learned Hand, and Douglas himself had all used penumbra at least twice in judicial opinions, and even the conservative Felix Frankfurter has used it once. A perceptive later critic of Griswold noted that "Douglas could have replaced penumbra with periphery or fringe with no loss of meaning or force" (Greely, 1989: 260), but Douglas's use of so distinctive a word became a prime target for those who were either methodologically uncomfortable or substantively opposed to constitutional recognition of a right to privacy, especially if such a right would insulate issues of sexuality from regulation by the state.
    Much as like happened with the short-term impact of Brown v. Board of Education (347 U.S. 483 (1954) in 1954-1955, when those who were inspired to activism by the decision initially stepped forward more energetically than did those who were its opponents (see Garrow, 1987: esp. viii; and Garrow, 1994b), the most important short-run impact of Griswold v. Connecticut was on the young attorneys who saw in Griswold's protection of reproductive choice the never before imagined opportunity to challenge criminal statutes prohibiting abortion as unconstitutional infringements on women who did not want to carry a pregnancy to term (Garrow, 1994a: 334-39, 351-54). The concept of a Griswold-based constitutionally fundamental right to privacy that protected women's reproductive choices was the substantive analytical centerpiece of all that followed between 1965 and 1973. Griswold's potential promise was immediately recognized by both proponents and opponents of the legalization of abortion (Garrow, 1994a: 301-12 passim), and by the fall of 1969, when the first actual case posing a privacy challenge to existing state anti-abortion statutes was filed in federal district court for the southern district of New York (Hall v. Lefkowitz, 305 F.Supp. 1030 (S.D.N.Y. 1969); see also Garrow, 1994a: 379-81), the judicial or constitutional climate was clearly ready for such an expansion and application of Griswold-style constitutional privacy.(FN11)
    The full story of how Griswold's introduction of constitutional protection for reproductive privacy was carried forward throughout the late 1960s and early 1970s by a far from completely coor-dinated national network of attorneys and abortion activists has already been told in copious detail (Garrow, 1994a: 389-472) and need not be revisited here, but anyone pondering the constitutional vicissitudes of privacy as an American legal concept over the past 35 years simply must absorb and acknowledge both the speed and the extent of the acceptance Griswold's application to abortion won between 1969 and 1973.
    From a historian's vantage point, the Supreme Court's January 1973 rulings in Roe v. Wade and Doe v. Bolton were first and foremost the amazingly rapid culmination of the almost wildfire-like fashion in which Griswold-based constitutional challenges sped across the American legal landscape from New York to Texas to California to Georgia in the space of just three years (1970-1972).
    But, as noted and underscored at the outset, that seeming triumph for constitutional privacy in January 1973 began to turn sour within just weeks of the decisions as Justice Harry A. Blackmun's majority opinions for the court increasingly became the target of scholarly scorn that in time became both more pointed and more widely shared than the academic criticism attracted by William Douglas's Griswold.
    To anyone whose understanding of Roe and Doe has unfortunately been informed primarily by one or another constitutional law casebook rather than by immersion in the justices' own once-private case files from the early 1970s, the apparently crucial doctrinal privacy link between Griswold and Roe appears to be the court's relatively unheralded March 1972 decision in Eisenstadt v. Baird (405 U.S. 438 (1972)). Eisenstadt, which voided the arrest, conviction, and imprisonment of freelance birth control crusader Bill Baird for distributing contraceptive vaginal foam to a half-dozen women following a lecture at Boston University (Garrow, 1994a: 320-22), had been viewed as a relatively insignificant case while it was under review inside the Supreme Court during late 1971 and early 1972. Eisenstadt had been argued just a few weeks before the initial oral arguments in Roe and Doe themselves, and the initial draft of Justice William J. Brennan, Jr.'s four-man majority opinion for what was then a seven-member bench (incoming Justices Lewis F. Powell, Jr., and William H. Rehnquist had not yet taken their seats) was distributed on the very day that Roe and Doe were first argued (Garrow, 1994a: 517-20, 541-42).
    The Massachusetts criminal statute under which Baird had been convicted had been amended, in the wake of Griswold, so as to allow the distribution of contraceptives to only married people. Brennan's opinion found that the law violated "the rights of single persons under the Equal Protection Clause" of the Fourteenth Amendment since there was no "rational basis" for the statute's distinction between married and unmarried individuals (Eisenstadt v. Baird, 405 U.S. 438, 443 (1972)).
    The core of Brennan's opinion declared that "whatever the right of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike." Brennan acknowledged how in Griswold "the right of privacy in question inhered in the marital relationship," but he superseded any status limitation by immediately proclaiming that

the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).

    In retrospect, of course, that oft-quoted and seemingly crucial sentence from Eisenstadt about "bear or beget" can appear to the uninitiated as a doctrinally necessary bridge between Griswold in 1965 and Roe in January 1973, but Brennan's opinion in Eisenstadt was under review within the court during the very same months when Harry Blackman was already at work on Roe and Doe. The Brennan clerk who worked on drafting Eisenstadt understood the echo perfectly well. "Was that recognized at the time? Was it clear to me that that sentence would have some impact on the abortion question?" he later asked in rephrasing an obvious question. "Yes, I certainly knew that and I believe Justice Brennan did too" (Garrow, 1994a: 542, quoting from a July 20, 1992 conversation with former Brennan clerk Gerald Goldstein).
    But no other justices offered any written comments or questions about that sentence, even though it of course escaped no one's attention. "We all saw that sentence, and we all smiled about it" for it appeared to have a "transparent purpose," remembered another 1971-1972 clerk. "Everyone understood what that sentence in Eisenstadt was doing, but no one believed it would tie anyone's hands in the abortion context or bind anyone in the future" (Garrow, 1994a: 542).(FN12)
    Subsequent academic commentary on Brennan's Eisenstadt opinion has been less than complementary. Future federal appellate judge Richard A. Posner wrote that Eisenstadt "unmasks Griswold as based on the idea of sexual liberty rather than privacy" (Posner, 1979: 198), yet Duke law professor William Van Alstyne concluded that Brennan actually had "begged the crucial question" of whether there was or was not a constitutionally protected right to fornicate (Van Alstyne, 1989: 167). Another future federal circuit judge, John T. Noonan, Jr., erroneously insisted that Eisenstadt's "revolutionary rationale was probably invented" with Roe and Doe in mind (Noonan, 1979: 21), and Harvard law professor Mary Ann Glendon complained that Brennan had "abruptly severed the privacy right from its attachment to marriage and the family" (Glendon, 1991: 57).(FN13)
    But the significance of either the Eisenstadt opinion or the academic criticism of Justice Brennan's constitutional creativity pales in comparison with Roe v. Wade, which followed just 10 months later. The greatest substantive irony of Roe, still not widely understood or appreciated even more than a quarter-century later, lies in how Harry Blackmun himself drafted and circulated an opinion that would have extended constitutional protection for a woman's right to choose abortion only up to the end of the first trimester of pregnancy; it was the lobbying of several of Blackmun's colleagues, primarily Lewis F. Powell, Jr., and input from a number of their clerks, rather than any initiative on Blackmun's part, that eventually resulted in Roe's holding that constitutional protection extended all the way to the point of fetal viability at approximately the end of the second trimester of pregnancy (see Garrow, 1994a: 580-86, and especially Garrow, 2000: 80-83).
    In comparison with William O. Douglas's breezily brief opinion for the court in Griswold, Harry Blackmun's opinion in Roe was more than seven times longer, totaling some 51 printed pages. But as most students of the modern Supreme Court well know, Blackmun's discussion of the constitutional basis for Roe's holding was both notably brief and far from resolute in tone. "The Constitution," Blackmun willingly acknowledged, "does not explicitly mention any right of privacy," but in decisions reaching back even to before Brandeis,(FN14) "the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the court or individual justices have indeed found at least the roots of that right in the First Amendment," as in Stanley v. Georgia (394 U.S. 557, 564) (a 1969 case concerning the possession of obscene materials within the home), in the Fourth and Fifth Amendments in a number of search and seizure cases, "in the penumbras of the Bill of Rights," as Douglas had written in Griswold, in the Ninth Amendment, as Justice Arthur Goldberg in concurrence in Griswold had seemed to argue, "or in the concept of liberty" as articulated in the Fourteenth Amendment's due process clause. "These decisions," Blackmun added, "make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' ... are included in this guarantee of personal privacy" (Roe v. Wade, 410 U.S. 113, 152 (1973)).
    "This right of privacy," Blackmun went on, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate a pregnancy" (410 U.S. 113, 153 (1973). See also Roe v. Wade, 314 F.Supp. 1217 (N.D.Tex. 1970)). Blackmun's "or" construction seemed unnecessarily equivocal, and he added, while emphasizing that the abortion right was far from absolute, that "it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions" (410 U.S. 113, 154 (1973)).
    In summation, Blackmun reiterated how "the right of personal privacy includes the abortion decision," subject to state regulation, and sought support by noting how in the extensive list of abortion-rights cases decided by lower courts between 1970 and 1973, "most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision" (410 U.S. 113, 154, 155 (1973)). Later in the opinion, while weighing the state's regulatory interests, Blackmun acknowledged how in light of the embryo or fetus, a "pregnant woman cannot be isolated in her privacy," and that ergo the abortion question "is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and Meyer were respectively concerned" (410 U.S. 113, 159 (1973)).(FN15)
    Blackmun's parallel opinion in Roe's companion case, Doe v. Bolton, added nothing with regard to the right to privacy, but Blackmun's vague and at times seemingly ambivalent efforts to detail the constitutional status of the privacy concept were not among the Roe opinion's strongest or most decisive sections. Of the two dissents, one by Byron R. White and the other by William H. Rehnquist, only the latter took explicit issue with Blackmun's invocation of privacy. "I have difficulty in concluding," Rehnquist wrote, "that the right of 'privacy' is involved in this case," since abortion "is not 'private' in the ordinary usage of that word" (Roe v. Wade, 410 U.S. 113, 172 (1973)). Like Justice Potter Stewart, a Griswold dissenter who nonetheless joined Blackmun's Roe and Doe opinions while also contributing a concurrence of his own (Roe v. Wade, 410 U.S. 113, 167 (1973)), Rehnquist volunteered that the Fourteenth Amendment's due process clause reference to "liberty" supplied a stronger constitutional peg than the privacy concept (Roe v. Wade, 410 U.S. 113, 172 (1973)).
    Critical reaction to Roe and Doe was understandably far more extensive than that which had greeted Griswold, but little of the popular commentary focused on Blackmun's usage of the right to privacy.(FN16) Far and away the most significant early critique of Roe and Doe was authored by Yale law professor John Hart Ely, who eight years earlier, as a clerk to Chief Justice Earl Warren, had assiduously opposed Warren's endorsement of Justice Douglas's Griswold opinion (Garrow, 1994a: 229, 236-37, 240-41, 248-52). One subsequent observer would call Ely's April 1973 Yale Law Journal essay perhaps "the most famous and influential legal analysis of the past decade" (Flaherty, 1981: 588).
    Ely's most basic objection to Roe concerned Blackmun's "inability" to decide whether the right stemmed from the Ninth or the Fourteenth Amendment. That uncertainty, Ely argued, should have raised the question of "whether the Constitution speaks to the matter at all." Ely was willing to concede that "it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support," but in his judgment the Roe opinion had failed even to attempt that necessary task (Ely, 1973: 928 n. 58, 929).
    In subsequent years, other high-status and high-visibility constitutional commentators seconded and amplified Ely's criticisms. Stanford law professor Gerald Gunther accused Roe and Doe of "infusing a value of questionable constitutional legitimacy into the basic document" (1979: 820), and other notable legal critics included William Van Alstyne, Ruth Bader Ginsburg, Guido Calabresi, and Richard A. Posner.(FN17) Even America's best-known liberal constitutional commentator of the 1980s and 1990s, Harvard law professor Laurence H. Tribe, who initially reacted to the Roe opinion by expressing regret at how "the substantive judgment on which it rests is nowhere to be found" (Tribe, 1973: 7), was still voicing significant disquiet with the opinion in both his popular and his professional writings in the late 1980s and early 1990s (Tribe, 1990: 110; and 1988: 1349).
    But the most decisive critic of both Griswold and Roe, and of the underlying concept of constitutional protection for a fundamental right to privacy, was another prominent law school academic destined to go down in history for his spectacularly unsuccessful Supreme Court confirmation fight in 1987: Robert H. Bork. The battle over Judge Bork's nomination exemplifies both halves of our modern-day privacy right conundrum, for while Judge Bork was rejected in significant part because of how American public opinion accurately came to perceive him as an opponent of any constitutional right to privacy, at the same time there is no gainsaying the fact that Judge Bork's withering attacks on Griswold and Roe have been deeply and pervasively influential among legal academics and constitutional commentators, even among those who otherwise would blanch at any identification or association with the views of Bork. Judge Bork's 1987 defeat appears on its face to be a triumphant victory in favor of a constitutional right to privacy, but within the tiny elite whose views of Griswold and Roe heavily influence the long-term evolution of American constitutional presumptions, Bork may unknowingly have won the war even if everyone 13 years later still remains focused on how he lost so bloody a battle.
    Few people now recall that once upon a time, back in the late 1960s, Robert H. Bork welcomed Griswold as an example of how the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated" by the framers and particularly by the Ninth Amendment (Bork, 1968: 170).
    But as almost ever student of American politics does remember, within a very few years Professor Bork's constitutional views shifted sharply to the right. In a 1971 article that became widely cited within academia long before its author first became a federal circuit judge in 1982, Bork had retracted his previous endorsement and instead denounced Griswold's right-to-privacy holding as "utterly specious." Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it," since Douglas's opinion provided "no idea of the sweep of the right to privacy and hence no notion of the cases to which it may or may not be applied in the future" (Bork, 1971: 8, 9). Likewise, in an appearance before a Senate subcommittee in 1981, Bork testified that Roe was both "an unconstitutional decision" and "perhaps the worst example of constitutional reasoning I have ever read" (U.S. Senate, 1981: 310, 426).
    Even after he became a federal judge, Bork in 1985 told an interviewer that "I don't think there is a supportable method of constitutional reasoning underlying the Griswold decision" (McGuigan and Weyrich, 1990: 293, reprinting in full the text of a September 5, 1985 interview).(FN18) When President Ronald Reagan in early July 1987 announced his nomination of Bork to succeed retiring Justice Lewis F. Powell, liberal anti-Bork interest groups such as People for the American Way and the National Abortion Rights Action League (NARAL) lost little time in launching a media campaign that portrayed Bork as an enemy of the right to privacy. "According to Bork," one NARAL ad proclaimed, "a state can declare the use of birth control illegal and invade your privacy to enforce the law." A Planned Parenthood of New York City ad in the New York Times highlighted Bork's characterization of Griswold as "utterly specious," and a television ad featuring actor Gregory Peck warned viewers that Bork "doesn't believe the Constitution protects your right to privacy" (Garrow, 1994a: 668-69).
    When Bork himself went before the Senate Judiciary Committee for the first day of his confirmation hearing on September 15, he emphasized to the senators that he "agreed with [Griswold] politically," since "no civilized person wants to live in a society without a lot of privacy in it." However, he nonetheless stuck to his constitutional guns. "[T]he right of privacy, as defined or undefined by Justice Douglas, was a free-floating right not derived in a principled fashion from constitutional materials." It "does not have any rooting in the Constitution" and instead "comes out of nowhere." Bork sought to explain that he of course was not opposed to "privacy" per se, but "I certainly would not accept emanations and penumbra analysis," and he willingly acknowledged that had he been on the Supreme Court in 1965, he would have dissented from the decision voiding the Connecticut anti-contraception statute (U.S. Senate, 1987a: 250, 241, 116, 118, 290, 712).
    Bork also refused to back off from or qualify his previous denunciations of Roe v. Wade. "If Griswold v. Connecticut established or adopted a privacy right on reasoning which was utterly inadequate, and failed to define that right so we know what it applies to," he told the committee, then "Roe v. Wade contains almost no legal reasoning. We are not told why it is a private act, and if it is--there are lots of private acts that are not [constitutionally] protected--why this one is [constitutionally] protected. We are simply not told that. We get a review of the history of abortion and we get a review of the opinions of various groups like the American Medical Association, and then we get rules. That's what I object to about the case. It does not have legal reasoning in it that roots the right to abortion in constitutional materials" (184-85).(FN19)
    By the time Bork's own five days of testimony were complete, it was utterly clear that his public image as an unyielding foe of constitutional privacy had become perhaps the single greatest negative in spoiling his chances for Senate confirmation. On September 21, with the committee hearings far from over, brash Wyoming Republican Senator Alan Simpson spoke of both Griswold and Bork's nomination in the past tense in declaring that "you cannot believe how much time we have spent on that nutty case and how much mileage the opponents of Bork got out of it. This was the key" (1176).
    Several weeks later, as the Senate moved toward an October 23 floor vote in which Bork's nomination was rejected by a vote of 58 to 42, moderate New York Democratic Senator Daniel Patrick Moynihan explained his decision to vote against Bork by saying that "it is his restricted vision of privacy which troubles me most. I cannot vote for a jurist who simply cannot find in the Constitution a general right of privacy.... Its importance is such that I cannot support anyone for a Supreme Court appointment who would not recognize it" (Congressional Record, 1987: 14011-12).
    In the wake of Bork's defeat, his victorious opponents acknowledged how important the privacy argument had been to their campaign (see Garrow, 1994a: 669, quoting Ann Lewis and Nikki Heidepriem), and independent observers heartily agreed. As University of Texas law professor Sanford Levinson put it, "Bork was deprived of a seat of the Supreme Court largely because of his refusal to acknowledge the 'unenumerated' right to privacy as being part of the set of constitutional rights legitimately enjoyed by Americans" (1988: 135. See also Michelman, 1988: 1533-34, who writes that the Bork hearings "made clear that 'privacy' ... enjoys broad popular support as a constitutional value").
    That lesson was further underscored two months later when Bork's eventual successor as President Reagan's nominee for the Powell vacancy, Ninth Circuit Court of Appeals judge Anthony M. Kennedy, took his place before the Senate Judiciary Committee and carefully told the senators that he believed "that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage." When committee chairman Senator Joseph Biden asked Kennedy "Do you think Griswold was reasoned properly?" Kennedy ducked a direct answer but volunteered that "if you were going to propose a statute or a hypothetical that infringed upon the core values of privacy that the Constitution protects, you would be hard put to find a stronger case than Griswold." In response to another question from Biden, Kennedy stated that "the value of privacy is a very important part" of the "substantive component" of the due process clause and reiterated the interpretive distinction he had articulated earlier. "It is not clear to me that substituting the word 'privacy' is much of an advance over interpreting the word 'liberty,' which is already in the Constitution" (U.S. Senate, 1987b: 164, 165, 233).
    Without a doubt, the single most crucial legacy of Robert Bork's senatorial rejection and Anthony Kennedy's unanimous senatorial confirmation was the Supreme Court's surprising five-to-four ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992 to reaffirm rather than overturn the constitutional core of Roe v. Wade. And most notably, as I emphasized at the beginning of this paper and as Justice Kennedy's 1987 confirmation comments explicitly foreshadowed, when Justices Kennedy, Sandra Day O'Connor, and David H. Souter joined with Justices Harry A. Blackmun and John Paul Stevens to reaffirm Roe, their decisive "trio" opinion did so in precisely the manner that anyone familiar with both the Bork hearings as well as the academic "trashing" of Griswold and Roe should have anticipated: by retaining most of the privacy-protective substance of those now-famous rulings while simultaneously completely jettisoning the privacy concept and language that both Griswold and Roe had utilized so extensively.
    Declaring that "there is a realm of liberty which the government may not enter," the Casey trio repeatedly indicated that they were drawing their constitutional guidance from Justice John Marshall Harlan's famous substantive due process dissent in Poe v. Ullman rather than from anything William O. Douglas had said in Griswold or Harry A. Blackmun in Roe and Doe. "[T]he 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," the trio held while refraining from even a single invocation of the "p-word." Citing Griswold and Eisenstadt, the trio declared that they were not only correctly decided, but that "[t]hey supported the reasoning in Roe relating to the woman's liberty"--again invoking liberty and avoiding privacy (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847, 851, 852-53 (1992)).
    In a latter section of the opinion, the trio characterized Roe as "an exemplar of Griswold liberty," and underscored the social importance of "Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions" (505 U.S. 857, 860 (1992)). Justice John Paul Stevens, in his individual concurrence, implicitly agreed with his colleagues' conceptual shift, stating that Roe "was a natural sequel to the protection of individual liberty established in Griswold" and emphasizing how "Roe is an integral part of the correct understanding of both the concept of liberty and the basic equality of men and women" (505 U.S. 912 (1992)). Even Roe's own author, Harry Blackmun, in a movingly elegiac concurrence of his own, silently accepted the change when he decried the "stunted conception of individual liberty" underlying Chief Justice Rehnquist's dissent (505 U.S. 940 (1992)).
    Constitutional commentators who welcomed Casey's outcome also unsurprisingly embraced the court's conceptual shift from privacy to liberty. Harvard's Laurence Tribe stated that the trio opinion "makes sense and puts the right to abortion on a firmer jurisprudential foundation than ever before," and constitutional philosopher Ronald Dworkin concurred, saying that Casey's improvements "considerably strengthen the case for Roe" and gave the abortion right "an even more secure basis" (Greenhouse, 1992: A1, quoting Tribe; Dworkin, 1992: 29-33. See also Garrow, 1992).
    The court has continued to consistently and thoroughly supplant privacy with liberty in the eight years since Casey. In Stenberg v. Carhart in June 2000, Justice Stephen Breyer's majority opinion, and a significant additional concurrence by Justice John Paul Stevens, each echoed Casey in speaking of fundamental constitutional "liberty" and omitting any mention of the concept of privacy (Stenberg v. Carhart, 120 S.Ct. 2597, 2604 (Breyer), 2617 (Stevens) (2000)). Again, as with Casey, this should surprise us not in the slightest, for it clearly remains the case that the bad name that constitutional privacy acquired within elite academic circles in the wake of Griswold and especially Roe has quietly but nonetheless decisively influenced the constitutional preferences of those justices who have constituted the moderate or in some ways "liberal" wing of the court over the past decade.
    The ironic present-day conundrum that confronts any attempt to re-create or review the idea of a constitutional right to privacy is of course far more an analytic problem than a political one. As the "up" side or "bright" side of the Bork confirmation battle so telling showed, and as any number of subsequent public opinion polls confirm, the American mass public has no doubt or hesitation whatsoever that the United States Constitution should be read to encompass a very basic, very fundamental, and very inclusive right to privacy.(FN20) Instead, the problem that any advocate or champion of a constitutional right to privacy faces is almost exclusively an "elite" one of widely shared negative presuppositions about the intellectual quicksand that is believed to underlie any and all efforts to find an inclusive right to privacy within the ambit of the Constitution. Within the realm of reproductive rights claims, the Supreme Court has of course easily and perhaps quite convincingly overcome this problem by simply shifting to a discourse of liberty and simply abandoning the concept of privacy. Indeed, it appears virtually certain that any effort to revive privacy as a fundamental constitutional value will have to take place without any assistance from the court itself.
    Thus our twentieth-century American history of constitutional privacy is in the end a perhaps surprisingly sad or disconcerting tale. Americans as a people remain eager indeed to embrace privacy as one of their culture's most important social and legal values, but the tradition of constitutional commentary and criticism that plays a dispositive role in predetermining the presumptions and beliefs of America's civic and legal elite has left privacy a mortally wounded constitutional contestant. Only when--or if--that elite conversation about the Constitution and privacy takes a decided analytical or interpretive turn that cannot now be imagined or foreseen will there be any prospect for privacy to recover the constitutional stature that it briefly appeared to have in those now dimly remembered years from 1965 to 1973.

FOOTNOTES
1 As I noted in Liberty and Sexuality (1994a), Brandeis biographers and other commentators have erroneously continued to repeat the completely fictional statement that publication of the Warren and Brandeis article was a response to unpleasant coverage of a Warren relative's wedding by a Boston newspaper. Two very good law review articles that correct that error and are essential sources for any serious student of the Warren and Brandeis essay are Barron (1979): 875-922, and Glancy (1979): 1-39. Other relevant articles and commentaries are noted in Garrow (1994a: 783, n. 83).
2 See Hadley (1894: 20); Hand (1897: 759); Adams (1907: 37).
3 See, e.g., Michigan Law Review 3 (May 1905): 559-63; Case and Comment 12 (June 1905): 2-4; and Virginia Law Register 12 (June 1906): 91-99.
4 The concept of privacy, if not the word itself, had been present in at least three pre-Brandeis Supreme Court rulings. See Boyd v. United States (116 U.S. 616, 630 (1886)); Union Pacific Railroad Co. v. Botsford (141 U.S. 250, 251 (1891)) ("No right is held more sacred ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law"); and Interstate Commerce Commission v. Brinson (154 U.S. 447, 479 (1894)) ("the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man's home, and the privacies of his life").
5 For less explicit invocations, see also Prudential Insurance Co. v. Cheek (259 U.S. 530, 542-43 (1922)), Meyer v. Nebraska (262 U.S. 390, 399 (1923)), and Pierce v. Society of Sisters (268 U.S. 510, 535 (1925)).
6 See also Kent v. Dulles (357 U.S. 116, 126 (1958)) ("outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases").
7 Only Clark directly joined Douglas; both Brennan and Warren joined a Goldberg concurrence that in turn joined Douglas's majority opinion. See Garrow (1994a: 251-52) for a fully detailed explanation of the justices' behavior.
8 See also Van Loan III (1968: 48), criticizing how neither Douglas's majority opinion nor Justice Arthur Goldberg's extensive concurrence "adequately explain[s] the origin and nature of the right of privacy or the factors the Court took into consideration in deciding that it was constitutionally protected."
9 See also O'Brien (1979: 180), and Wolfe (1986: 290). Also note the telling observation made by the late Ronald J. Fiscus (1983: 413-14), with reference to Justice Douglas's judicial prestige (or the lack of it) as of 1965: "the Penumbra theory never had a chance, whatever its virtues, of becoming an accepted constitutional doctrine because of the reputation of its author .... By the time Douglas came to write his Griswold opinion, nobody was listening to him on doctrinal matters."
10 See Henly (1987: 81-100) and Greely (1989: 251-65). See also Glancy (1990: 155-77); Clark (1974: 833-84); and Stoneking (1985: 859-77).
11 See People v. Belous (458 P.2d 194 (Cal.S.Ct. 1969)); United States v. Vuitch (305 F.Supp. 1032 (D.D.C. 1969)); see also Garrow (1994a: 354-57, 364-66, 372-73, 377-79, 382-85).
12 But see, e.g., Rubenfeld (1999: 212), which calls Brennan's sentence "the crucial passage that is at the epicenter of modern privacy doctrine."
13 See also Rubenfeld (1999: 213), which asserts that Brennan's opinion "is just not much of an argument" since it "fails to provide any coherent theory for privacy."
14 See Union Pacific Railroad Co. v. Botsford (141 U.S. 250 (1891)); n. 4 supra.
15 In addition to those precedents already noted, Blackmun's references were to Loving v. Virginia (388 U.S. 1 (1967)), which voided state anti-"miscegenation" statutes, and Skinner v. Oklahoma (316 U.S. 535 (1942)), an equal protection ruling concerning the right to procreate.
16 The St. Louis Post-Dispatch was one affirmative exception. Individuals nowadays may be greatly surprised by how largely positive the editorial reactions to Roe and Doe were. See Garrow (1994a: 605-06).
17 See Van Alstyne (1983: 720; 1989: 1677-88); Ginsburg (1985: 375-86; 1992a: 17; 1992b: 1185-1209) (but see Garrow [1993: C3]); Calabresi (1985: 92-110 passim) (see also Garrow [1994a: 614, 878 n. 25], collecting a large number of additional legal critiques that criticized Blackmun's reliance on the privacy concept); Posner (1992: 337).
18 See also Dronenburg v. Zech (741 F.2d 1388, 1392 (D.C. Cir. 1984)), Dronenburg v. Zech (746 F.2d 1579, 1582 (D.C. Cir. 1984)), and Garrow (1994a: 649-50).
19 See also Bork (1989: 95-96, 112, 116, 158-59, 169, 234, 263).
20 See Garrow (1994a: 670, 905 n. 101); National Law Journal, 26 February 1990: 1, 36-37.

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IS MY BODY MY PROPERTY?
    BY DAVID A. J. RICHARDS
    ONE of the most important and controversial illustrations of the legal construction of privacy has been the development and elaboration, under American constitutional law, of the constitutional right to privacy. My argument concerning this development will proceed in two stages. First, I will critically discuss the main lines of this development, focusing on the case--the application of the right to gay/lesbian sexuality--that remains most controversial. Second, I will develop a normative argument that connects this development to important features of political liberalism, including the place of private spheres in liberalism's conception of just government.

THE DEVELOPMENT OF THE CONSTITUTIONAL RIGHT TO PRIVACY
    In 1965 the Supreme Court of the United States in Griswold v. Connecticut (381 U.S. 479) interpreted the constitutional right to privacy as the basis for a right to contraception that had been persistently and eloquently defended and advocated by Margaret Sanger for well over 40 years (a decision Sanger lived to see; see Chesler, 1992: 11, 230, 376, 467). The court extended the right to abortion services in 1973 in Roe v. Wade (410 U.S. 113) and reaffirmed its central principle in 1992 (see 505 U.S., 112 S.Ct. 2791; 120 L.Ed.2d 674, 1992). The court narrowly denied the application of the right to consensual homosexual sex acts in Bowers v. Hardwick (478 U.S. 186, 1986), but the legitimacy of that decision is now in real doubt in light of a later decision that found state constitutional provisions that forbade all laws protecting gays and lesbians from discrimination an unconstitutional violation of the right to be free of dehumanizing prejudice (see, for example, Romer v. Evans, 116 S.Ct. 1620, 1996). The more reasonable and persuasive view of this matter is that forthrightly taken by the European Court of Human Rights, which has found laws criminalizing gay sex to be unconstitutional violations of the applicable guarantees of the right of private life.(FN1) I develop and explore here the normative argument for the protection of such a right to intimate life, and its reasonable application to contraception, abortion, and, most recently, gay/lesbian sexuality.
    Sanger's argument for the right to contraception was very much rooted in rights-based feminism (see Richards, 1998: 178-81). Her argument had two prongs, both of which were implicit in the Supreme Court's decisions in Griswold and later cases: first, a basic human right to intimate life and the right to contraception as an instance of that right; and second, the assessment of whether laws abridging such a fundamental right met the heavy burden of secular justification that was required.
    The basis of the fundamental human right to intimate life was, as important American feminists had argued in the nineteenth century (see Richards, 1998, chap. 4.), as basic an inalienable right of moral personality (respect for which is central to the argument for toleration) as the right to conscience. Like the right to conscience, it protects intimately personal moral resources (thoughts and beliefs, intellect, emotions, self-image and self-identity) and the way of life that expresses and sustains such convictions in facing rationally and reasonably the challenge of a life worth living--one touched by enduring personal and ethical value. The right to intimate life centers on protecting these moral resources.
    The human right of intimate life was not only a central right in the argument for toleration central to American constitutionalism, but a right interpretively implicit in the historical traditions of American rights-based constitutionalism. In both of the two great revolutionary moments that framed the trajectory of American constitutionalism (the American Revolution and the Civil War), the right to intimate life was one of the central human rights the abridgment of which rendered political power illegitimate--and gave rise to the Lockean right to revolution.(FN2) For example, the background literature on human rights, known to and assumed by the American revolutionaries and founding constitutionalists, included what the influential Scottish philosopher Francis Hutcheson called "the natural right of each one to enter into the matrimonial relation with any one who consents" (1968 [1755]: 299). Indeed, John Witherspoon, whose lectures Madison heard at Princeton, followed Hutcheson in listing even more abstractly as a basic human and natural right a "right to associate, if he so incline, with any person or persons, whom he can persuade (not force)--under this is contained the right to marriage" (1982: 123).(FN3) And, at the time of the Civil War, the understanding of marriage as a basic human right took on a new depth and urgency because of the antebellum abolitionist rights-based attack on the peculiar nature of American slavery, which failed to recognize the marriage or family rights of slaves (Stampp, 1956: 198, 340-49; Genovese, 1974: 32, 52-53, 125, 451-8) and inflicted on black families the moral horror of selling family members separately (Stampp, 1956: 199-207, 204-6, 333, 348-9; Gutman, 1976: 146, 318, 349). One in six slave marriages thus were ended by force or sale (Gutman, 1976: 318). No aspect of American slavery better dramatized its radical evil for abolitionists and Americans more generally than its brutal deprivation of intimate personal life, including undermining the moral authority of parents over children. Slaves, Theodore Weld argued, had "as little control over them [children], as have domestic animals over the disposal of their young" (1968 [1839]: 56). Slavery, understood as an attack on intimate personal life,(FN4) stripped people of essential attributes of their humanity.
    It is against this historical background (as well as background, rights-based political theory) that allows us to regard the right to intimate life as one of the unenumerated rights protected both by the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment, as Justice John Marshall Harlan may be regarded as arguing in his concurrence in Griswold.(FN5) The Supreme Court quite properly interpreted the Fourteenth Amendment in particular as protecting this basic human right against unjustified state abridgment, and, as Sanger had urged, considered the right to use contraceptives as an instance of this right. The right to contraception was, for Sanger, a fundamental human right for women because it would enable women, perhaps for the first time in human history, to decide reliably whether and when their sexual lives would be reproductive. Respect for this right was an aspect of the more basic right of intimate life in two ways. First, it would enable women to exercise control over their intimate relations to men, deciding whether and when such relations would be reproductive. Second, it would secure for women the right to decide whether and when they would form the intimate relationship to a child. The two forms of choice threatened the traditional gender-defined role of women's sexuality as exclusively and mandatorily procreational and maternally self-sacrificing.
    Abridgment of such a basic right (as by criminalizing the sale and use of contraceptives) can be justified only by compelling secular reasons in contemporary circumstances, not on the grounds of reasons that are today sectarian (internal to a moral tradition no longer based on public reasons available and accessible to all). In fact, the only argument that could sustain such laws (namely, the Augustinian and Thomistic view that it is immoral to engage in nonprocreative sex)(FN6) is not a view of sexuality that can reasonably be enforced on individuals today. Many people regard sexual love as an end in itself and the control of reproduction a reasonable way to regulate when and whether they have children consistent with their own personal and larger ethical interests, the interests of their children, and the interests of an overpopulated society at large. Even the question of having children is today a highly personal matter, certainly no longer governed by the perhaps once compelling secular need to have children for necessary work in a largely agrarian society with high rates of infant and adult mortality.(FN7) From the perspective of women in particular, as Sanger made clear, the enforcement of an anticontraceptive morality on society at large not only harms women's interests (as well as those of an overpopulated society more generally), but impersonally confers on women a purely reproductive function, depriving them of the rational dignity of deciding as moral agents and persons, perhaps for the first time in human history, whether, when, and on what terms they could have children consistent with their other legitimate aims and ambitions (including the free exercise of all their basic human rights). Enforcement of such a morality rests on a now conspicuously sectarian conception of gender hierarchy in which women's sexuality is defined by a mandatory procreative role and responsibility. That conception, the basis of the unjust construction of a gender hierarchy, cannot reasonably be the measure of human rights today.(FN8)
    Similar considerations explain the grounds for doubt about the putative public, nonsectarian justifications for laws criminalizing abortion and homosexual sexuality. Antiabortion laws, grounded in the alleged protection of a neutral good like life, unreasonably equate the moral weight of a fetus in the early stages of pregnancy with that of a person and thus equate abortion with murder; such laws fail to take seriously the weight that should be accorded a woman's basic right to reproductive autonomy in making highly personal moral choices central to her most intimate bodily and personal life against the background of the lack of reasonable public consensus that fetal life, as such, can be equated in the early stages of pregnancy with that of a moral person.(FN9)
    Antihomosexuality laws have even less semblance of a public justification (such as fetal life) that could be acceptably enforced on society at large. They brutally abridge the sexual expression of the companionate loving relationships to which homosexuals, like heterosexuals, have an inalienable human right. Certainly, the interests expressive of sexual orientation must reasonably be understood in contemporary circumstances as aspects of the underlying right to intimate association, a right that persons may pursue in the empowering terms of autonomously reflective reasonable standards and judgments expressive of conviction. The arguments, traditionally supposed to rationalize abridgment of this fundamental right, cannot reasonably be defended as compelling secular interests today.
    To be clear on this point, we need to examine critically the grounds traditionally thought to rationalize the condemnation of homosexuality. Plato in the Laws gave influential expression to the moral condemnation of homosexuality in terms of two arguments: its nonprocreative character, and (in its male homosexual forms) its degradation of the passive male partner to the status of a woman.(FN10) Neither of these two traditional moral reasons for condemning homosexuality can be legitimately and indeed constitutionally imposed on society or any person or group of persons.
    One such moral reason (the condemnation of nonprocreational sex) can, for example, no longer constitutionally justify laws against the sale to and use of contraceptives by married and unmarried heterosexual couples (see 381 U.S. 479, 1965; 405 U.S. 438, 1972). The mandatory enforcement of the procreational model of sexuality is, in circumstances of overpopulation and declining infant and adult mortality, a sectarian ideal lacking adequate secular basis in the general goods that can alone reasonably justify state power; accordingly, contraceptive-using heterosexuals have the constitutional right to decide when and whether their sexual lives shall be pursued to procreate or as an independent expression of mutual love, affection, and companionship.(FN11)
    The other moral reason for condemning homosexual sex (the degradation of a man to the passive status of a woman) rests on the sexist premise of the degraded nature of women that has been properly rejected as a reasonable basis for laws or policies on grounds of suspect classification analysis.(FN12) If we constitutionally accept, as we increasingly do, the suspectness of gender on par with that of race, we must, in principle, condemn, as a basis for law, any use of stereotypes expressive of the unjust enforcement of gender roles through law. That condemnation extends, as authoritative case law makes clear, to gender stereotypy, whether immediately harmful to women or to men.(FN13)
    Nonetheless, although each moral ground for the condemnation of homosexuality has been independently rejected as a justification for coercive laws enforceable on society (applicable to men and women), these grounds unreasonably retain their force when brought into specific relationship to the claims of homosexual men and women for equal justice under constitutional law.(FN14) These claims are today in their basic nature arguments of principle made by gay men and lesbians for the same respect for their intimate love life and other basic rights, free of unreasonable procreational and sexist requirements, now rather generously accorded men and women who are heterosexually coupled (including, as we have seen, even the right to abortion against the alleged weight of fetal life). Empirical issues relating to sexuality and gender are now subjected to more impartial critical assessment than they were previously; and the resulting light of public reason about issues of sexuality and gender should be available to all people on fair terms. However, both the procreational mandates and the unjust gender stereotypy, constitutionally condemned for the benefit of heterosexual men and women, are ferociously applied to homosexual men and women.(FN15) It bespeaks the continuing political power of the traditional moral subjugation of homosexuals that such a claim of fair treatment (an argument of basic constitutional principle if any argument is) was contemptuously dismissed by a majority of the Supreme Court of the United States (in a 5-4 vote) in 1986 in Bowers v. Hardwick (478 U.S. 186, 1986). No skeptical scrutiny whatsoever was accorded state purposes elsewhere acknowledged as illegitimate. Certainly, no such purpose could be offered of the alleged weight of fetal life that has been rejected as a legitimate ground for criminalization of all forms of abortion; any claim of public health could be addressed, as it would be in comparable cases of heterosexual relations involving the basic constitutional right of intimate life, by constitutionally required alternatives less restrictive and more effective than criminalization (including use of prophylactics by those otherwise at threat from transmission of HIV).(FN16)
    Traditional moral arguments, now clearly reasonably rejected in their application to heterosexuals, were uncritically applied to a group much more exigently in need of constitutional protection on grounds of principle.(FN17) Reasonable advances in the public understanding of sexuality and gender, now constitutionally available to all heterosexuals, were suspended in favor of an appeal to the sexual mythology of the Middle Ages.(FN18) It is an indication of the genre of dehumanizing stereotypes at work in Bowers v. Hardwick--stripping a class of persons (blacks, women, Jews, homosexuals) of moral personality by reducing them to a mythologized sexuality--that the court focused so obsessionally on one sex act (sodomy); as Leo Bersani perceptively observed about the public discourse (reflected in Bowers), it resonates in images (inherited from the nineteenth century) of homosexuals as sexually obsessed prostitutes. (Bersani 1988: 211-2, 222.) The transparently unprincipled character of Bowers(FN19) in these terms thus suggests a larger problem, which connects such treatment of homosexuals with the now familiar structural injustice underlying racism and sexism. Understanding that connection explains, I believe, the recent emergence of arguments for equal recognition of gay/lesbian relationships on more equal terms with recognition of heterosexual relationships, including claims to same-sex marriage.(FN20)

POLITICAL LIBERALISM AND PRIVATE SPHERES
    Constitutional privacy illustrates a larger argument of principle within the constitutional theory of political liberalism underlying our constitutional arrangements, including the role of the judiciary in enforcing arguments of principle that ensure the legitimacy of democratic politics. To be clear about this argument of principle, we need to distinguish initially two senses of privacy: first, privacy as control over highly personal information about oneself; and second, privacy as substantive spheres of thought and action immune from state intrusion. Privacy, in the first sense of control over personal information, was the subject of the classic Warren and Brandeis law review article, "The Right to Privacy" (1890), which called for appropriate protection by civil tort remedies by a privacy action, an argument that successfully led not only to the recognition of such civil remedies (between private parties) throughout the United States (Prosser, 1960), but to a correspondingly expansive interpretation of the constitutional right (against the state) under the Fourth Amendment to be free from unreasonable searches and seizures, including unjustified forms of electronic bugging (see Katz v. United States, 389 U.S. 347, 1967, overruling Olmslead v. United States, 277 U.S. 438, 1928).
    It was an important feature of the arguments by analogy that led Justice William Douglas, writing for the Supreme Court, to recognize the constitutional right to privacy in Griswold that the intrusion into intimate life called for by the criminalization of contraceptive use encouraged--indeed required--forms of electronic bugging violative of both the letter and spirit of the Fourth Amendment (382 U.S. 479, 1965). Certainly, the value placed on privacy (as control of highly personal information) often arises from the role such sovereignty over personal information plays in the selective disclosure of self in the formation of relationships of friendship and love, that is, the area of intimate life governed by the constitutional right to privacy as we earlier saw. But, as later defined by authoritative case law, the constitutional right to privacy does not require the spatial locus of home life, since the right to abortion services (required by the constitutional right to privacy) is often reasonably exercised in nonhome environments (for example, abortion clinics). Our right to constitutional privacy, while sometimes overlapping with the right to control personal information, is not limited to that normative context; it defines, rather, a substantive sphere of autonomous thought and action of a certain sort.
    The normative ground of the constitutional right to privacy justifies more than the informational interests narrowly in play in the earlier discussion. We can see this in the connections between privacy interests and the higher-order interests protected by the right to conscience itself. The objects of these latter interests are the conditions essential to independent exercise of the moral powers through which we assess our most basic self-conceptions of a life well and humanely lived. Control over informational privacy is in natural service of these interests because, as we have seen, it is one of the resources (control over private information) essential to control over our moral powers, namely, protection from a homogeneizing public scrutiny that paralyzes moral independence itself. These resources include not only informational privacy but a cognate range of capacities of thought, emotion, and action integral to the self-image of a person exercising moral independence in the formal of intimate relationships, the sphere governed by what I earlier called the human right to intimate life.
    An analogy may clarify the nature of such private spheres. We regard religious belief, practice, and even action (when not violating compelling secular state interests) as private matters, not because we associate religion with informational privacy (many religious activities take place in public), but because our commitment to the right to conscience associates integrity itself with the control of each person over the formation of the ultimate aims of our moral powers (for example, an identity formed in personal relationship to an ethical God). Accordingly, we think of this relationship as not properly a matter of public interest and protect it from any public intrusion that compromises the moral independence expressed and often perfected in such relationships.
    In a generic sense, we may say that the very idea of many classical constitutional rights against the state expresses, in principle, an enforceable distinction between a private sphere protected by such rights from public interest and the properly public sphere of legitimate state interest and action. Such rights, like religious liberty, often do not protect informational privacy interests as such. But we do naturally think of these rights as defining spheres of privacy, using the most abstract sense of privacy: freedom from unjust intrusion by other people.
    Generic privacy, in this sense, arises, within the theory of political liberalism, as a consequence of persons' having basic human rights, respect for which is a normative condition of political legitimacy. The appropriate respect for such a basic human right takes the form, other things being equal, of regarding the sphere governed by the right as a private matter, not subject to state interference on illegitimate grounds. It is this generic sense of property that John Locke had in mind when he defined the legitimate ends of liberal government in terms of "the mutual Preservation of their Lives, Liberties, and Estates, which I call by the general Name, Property" (1960: 368); or, as he puts the point later, "By Property I must be understood here, as in other places, to mean that Property which Men have in their Persons as well as Goods" (401). James Madison, the father of American constitutionalism, invoked this political theory in similar terms:

Property ... in its particular application means "that domination which one man claims and exercises over the external things of the world, in exclusion of every other individual." In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right; and which leaves to everyone else a like advantage. In the former sense, a man's land, or merchandise, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights (Madison, 1906).

    For Madison as for Locke, generic privacy, in the sense that they meant "Property," was a normative consequence of the appropriate respect for basic human rights called for by political liberalism. Certainly, for both thinkers these rights included the right to private property, more narrowly understood, rooted, controversially in Locke, in an interpretation of the appropriate conditions of respect for exercise of the right to work.(FN21) But, such basic human rights (the subject of generic privacy or "Property") included as well the basic rights to conscience and free speech, imposing on legitimate politics the requirements of the argument for toleration.(FN22) The consequence of the appropriate respect for such basic human rights was that, within their legitimate scope, they defined private spheres of thought, belief, and action.
    As I suggested earlier, the scope of this private sphere included as well those highly personal relationships and activities whose just moral independence requires protection from a hostile public interest that compromises the range of thought, self-image, emotional vulnerabilities, sensitivities, and aspirations essential to the role of such relationships and activities in the formation of self expressive of one's moral powers. Intimate relationships--which give play to love, devotion, and friendship as organizing themes in self-conceptions of permanent value in living--are among the essential resources of moral independence. Protection from hostile interest thus nurtures these intimate personal resources, a wholeness of emotion, intellect, and self-image guided by the self-determining moral powers of a free person. Appropriate respect for the basic human right of intimate life requires respect for this private sphere.
    Appropriate respect for such basic human rights under political liberalism places on the state a heavy burden of secular justification that, as I earlier showed in my discussion of the development of constitutional privacy law, cannot be met by purely sectarian arguments that no longer enjoy reasonable public appeal in contemporary circumstances. As I have suggested, two traditional arguments are, on this ground, today suspect: first, the alleged evil of all forms of nonprocreational sex; and second, the putative evil of any deviation from gender stereotypes. It is because neither traditional understanding is any longer reasonably justifiable in contemporary circumstances that we reasonably take, as we increasingly do, the constitutional view that the right to intimate life today includes contraception, abortion services, and gay/lesbian sexuality. Indeed, one of them (deviation from gender stereotypes) is not only no longer justifiable as a compelling secular purpose for state action, but is itself constitutionally condemned for its imposition of constitutionally condemned gender stereotypes as the measure of rights and responsibilities in public and private life.
    There is, of course, a large and growing feminist literature that reasonably questions the role that unjust gender stereotypes have played in our scientific and ethical methodologies of epistemic and practical reasoning and thus in our understanding of the requirements of justice under political liberalism.(FN23) Some of this literature reasonably questions on such grounds the force accorded mind-body dualisms in our religion, our science, and our philosophy.(FN24) Our contemporary understanding of the expanded scope of the constitutionally protected sphere of private life may be understood as reasonably reflecting the force of such internal criticisms of the traditional understanding of liberal justice. It is surely no accident but normatively fundamental that it has been the increasingly significant normative voice of men and women challenging traditional gender stereotypes that has forged the expanded development of constitutional privacy in contemporary circumstances in the domains of contraception, abortion, and gay/lesbian sexuality. Speaking in their own gendersubversive voices, they have reasonably questioned, as fundamentally unjust, a traditional understanding of the right to intimate life that unjustly excluded the experience of unwanted pregnancies of half the human race; and they have more recently questioned as well a traditional understanding of the right to intimate life in terms of gender inequality and difference that many men and women, heterosexual and homosexual, now reasonably question and reject as a just measure of the transformative force of loving relationships in human life. Speaking in such voices, they have justly demanded their most basic rights under political liberalism to be respected as the persons they are, constituted, as persons are, by their bodies and their internal personal and ethical perspectives on living their own lives (Baker, 2000).
    If I am correct on these points, the development of constitutional privacy represents a reasonable internal criticism of traditional political liberalism along the dimensions both of its conception of basic human rights and its understanding of the purposes adequate to justify abridgment of these rights. Consistent with comparable developments in extending basic rights such as conscience, speech, and work more inclusively, the right to intimate life has been reasonably expanded to embrace reasonable demands to contraception, abortion, and gay/lesbian sexuality as aspects of a principled understanding of the right to intimate life in contemporary circumstances. The constitutional recognition of such claims dignifies the claimants as bearers of human rights speaking, as persons, from the bodies and perspectives they are. Their claims broke the silence that the enforcement of an unjust gender orthodoxy had imposed on public discussion of these matters by reasonably questioning the disassociation of mind from body, thought from action, that had unjustly been imposed on them as colonized subjects, not citizens of political liberalism. Their claims to constitutional privacy, rooted in the most elementary rights of political liberalism, empowered them to know who they are, to speak and live with integrity secure in respect for their basic rights.

FOOTNOTES
1 See Dudgeon v. The United Kingdom, 4 EHRR 149 (Ct.) (1981); Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A), 186 (1988); Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A), 485 (1993).
2 See, on American revolutionary constitutionalism as framed by these events, Richards (1989; 1993).
3 For further development of this point, see Richards (1986a: 232-3).
4 See Walters (1978: 95-96).
5 Justice Harlan, in fact, grounds his argument on the Due Process Clause of the Fourteenth Amendment, but the argument is more plausibly understood, as a matter of text, history, and political theory, as based on the Privileges and Immunities Clause of the Fourteenth Amendment for reasons I give in Richards (1993, chap. 6). For further elaboration of this interpretation of Griswold, see Richards (1986a: 256-61).
6 See Augustine (1972: 577-94). Thomas Aquinas elaborates Augustine's conception of the exclusive legitimacy of procreative sex in a striking manner. Of the emission of semen apart from procreation in marriage, he wrote: "[A]fter the sin of homicide whereby a human nature already in existence is destroyed, this type of sin appears to take next place, for by it the generation of human nature is precluded" (1956, pt. 2, chap. 122(9)).
7 On how personal this decision now is see, in general, May (1995).
8 For further discussion of the right to privacy and contraception, see Richards (1986a: 256-61).
9 For further discussion, see Richards (1986a: 261-69); Dworkin (1993: 3-178).
10 See Plato, Laws (Book 8, 835d-842a). On the moral condemnation of the passive role in homosexuality in both Greek and early Christian moral thought, see Brown (1988: 30, 382-3). But for evidence of Greco-Roman toleration of long-term homosexual relations even between adults, see Boswell (1994: 53-107). I am grateful to Stephen Morris for conversations on this point. Whether these relationships were regarded as marriages may be a very different matter. For criticism of Boswell's argument along this latter line, see Shaw (1994: 33-41).
11 For further discussion, see Richards (1986a: 256-61).
12 See, for example, Frontiero v. Richardson, 411 U.S. 677 (1973); Craig v. Boren, 429 U.S. 190 (1976). On homophobia as rooted in sexism, see Young-Bruehl (1986: 143, 148-51).
13 For cases that protect women from such harm, see Reed v. Reed, 404 U.S. 71 (1971) (right to administer estates); Frontiero v. Richardson, 411 U.S. 677 (1973) (dependency allowances to servicewomen); Stanton v. Stanton, 421 U.S. 7 (1975) (child support for education). For cases that protect men, see Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980) (widower's right to death benefits); Craig v. Boren, 429 U.S. 190 (1976) (age of drinking for men).
14 On the continuities among heterosexual and homosexual forms of intimacy in the modern era, see, in general, D'Emilio and Freedman (1988: 239-360); Giddens (1992). See also Ehrenreich, Hess, and Jacobs (1986); Snitow, Stansell, and Thompson (1983); Vance (1984).
15 On the unjust gender stereotypy uncritically applied to homosexual men and women, see Okin (1997: 44-59).
16 The argument applies, in any event, only to those forms of sex by gay men likely to transmit the virus; it does not reasonably apply to lesbians, nor does it apply to all forms of sex (including anal sex) by gay men. So, the argument that sex acts as such can be criminalized on this basis is constitutionally overinclusive and inconsistent with the basic right thus abridged. The regulatory point is that even gay men at threat by virtue of their sexual practices can take preventive measures against this threat (by using condoms). For a recent discussion of what further reasonable preventive measures the gay men at threat might also take, see Rotello (1997).
17 For further criticism, see Richards (1989: 209-47).
18 Justice Harry Blackmun put the point acidly: "Like Justice Holmes, I believe that 'it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.'" Bowers, 478 U.S. 199 (quoting Holmes [1897: 457, 469]).
19 I develop this argument at greater length in Richards (1989, chap. 6); and in Richards (1986b). See also Goldstein (1988; 1993); Hunter (1992); Halley (1993); Thomas (1993).
20 See, for further elaboration of this argument, Richards (1999).
21 For some sense of the range of contemporary interpretive controversy over how the Lockean theory of private property should be understood and evaluated, see Waldron (1988); Sreenivasan (1995). For the range of more general treatments, see Ryan (1984); Pipes (2000).
22 For general explication of this argument and its consequences for American constitutional law, see Richards (1986a).
23 See, for example, Fricker and Hornsby (2000); Schiebinger (1993).
24 See, for example, Bordo (1987; 1993; 1999).

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PART III

KEYNOTE ADDRESS

THREATS TO PRIVACY
    BY CHARLES NESSON
    AGRAPHIC in Wired magazine some years ago captured the excitement of the burgeoning Internet. Pictured was a long line of men stripped to the waist tugging on a rope, pulling something huge that couldn't be seen beyond the edge of the page. Turning the page confronted you with the headline "Something's Coming After," followed by an article asserting that, in a world of connected human talents, something new and awesome would evolve. Although the message of the article was one of hope and optimism, there is also a dark side to this interconnected world. Internet connectivity may lead to an all-encompassing surveillance network that will deeply compromise our privacy.
    Along with its many benefits, the march of technology makes an encompassing surveillance network seem almost inevitable. We owe much of the privacy we have enjoyed in the past to a combination of immature technology and insufficient manpower to monitor us. But these protective inefficiencies are giving way to efficient technologies of data processing and digital surveillance that threaten to eliminate our privacy. Already we are tracked by our credit-card transactions, our travel through automated toll booths, our cell phone calls. Each year brings more sensitive and widespread sensing devices, including cameras, microphones, and, potentially, biological sensors, all of which are being connected through increasingly efficient networks to increasingly more powerful data-processing and storage devices. Cameras are proliferating: at toll plazas, on public streets, and in public parks. We welcome them as crime fighters even as they eliminate our ability to move through the world untracked. Face and voice recognition software may soon permit image data from surveillance cameras to be cross-referenced to databased profiles of each person observed. For a glimpse of the future, enter your street address at globexplorer.com. You will see a satcllite picture nearly good enough to show a car parked in your driveway, or in mine. Better resolution is coming soon. We are moving toward a transparent society in which our actions and transactions are followed, our lives tracked and documented, by folks we neither know nor trust--each of us a star in our own Truman Show.
    Two privacy writers, Simson Garfinkle and David Brin, each in his own way, suggest the breadth and immediacy of technology's threats to privacy. Simson Garfinkel, the author of Database Nation, describes a thwarted effort in the late sixties to establish a massive central database of citizen information to be administered and controlled by the United States government. Political opposition based on fears of Big Brother killed this proposal. Garfinkle, who fears Big Brother as much as anyone, surprisingly regrets the defeat of the proposal. Why? Because the alternative that emerged in its place seems to him much more threatening. Instead of a single giant known database in government hands, which might have been subject to some privacy controls, we have instead many databases in corporate hands not subject to privacy controls, and difficult even to inventory.
    David Brin, another brilliant young author, suggests in his book The Transparent Society the dimension of threatened privacy loss by posing a hypothetical question based on the assumption that ubiquitous surveillance is coming. Imagine two cities of the future, he challenges. They look much the same. Each is clean, orderly, utterly without crime, with surveillance cameras on every building and street corner. But they are very different underneath. In one city all the surveillance cameras connect to the police stations, where they are monitored by government authorities. In the other city the surveillance cameras connect to a net that allows anyone to watch. Brin asks in which city would you rather live. He argues that we will actually be better off if all of us can watch each other rather than entrusting the monitoring function to an all-powerful agency.
    But must we give in to the idea of ubiquitous surveillance? It is true that extraordinarily strong forces are pushing in the direction of ubiquitous surveillance. Business and government, the two strongest forces shaping the technological development of the net, seem aligned in their hunger for large databases containing detailed information about individuals. Business wants such information to aid in marketing; government to assist in surveillance and control. The question is, are those of us who would resist the evaporation of our privacy capable of doing so, or must we accept its loss as inevitable? Scott McNealy, CEO of Sun Microsystems, asserts that we already have "zero privacy." His advice? "Get over it."
    Recent surveys would seem to indicate that Americans are not prepared simply to "get over it." Concern for loss of privacy seems to be widespread and growing. Surveys by the Pew Trust and Harris Polls show that Americans want a presumption of privacy in their daily lives. Eighty-six percent support "opt-in" requirements for Internet companies. Fifty-four percent feel that the tracking of users by websites is harmful (Fox, 2000: 2). Sixty-one percent of online users are concerned that their e-mail will be read by someone else, without their knowledge or consent. Seventy-eight percent of online shoppers are concerned that when buying online, the personal information they provide will result in the receipt of unwanted information. Eighty-nine percent would be uncomfortable with a website using their browsing and shopping practices to create a profile linked to their names. Ninety-two percent would feel the same about a website selling their information to others ("Business Week").
    Yet widespread and growing concern for privacy does not easily translate to action. We could effect change through individual action: self-help designed to counteract privacy-detracting technologies. We could turn to the courts to protect our privacy, insofar as existing laws and the Constitution apply. We could stimulate a legislative response designed to balance the needs of businesses and government against the rights of individuals. I would like to consider each of these alternatives briefly.
    One might expect that those of us concerned about our privacy would look to ourselves and take advantage of whatever means are available to protect it. A few moments of reflection about our daily routines yields a number of privacy-enhancing adjustments that we could make. When using the Internet, for example, we could employ different identities. We could disable cookies, use multiple e-mail addresses, and fake the personal data sought by websites. We could stay off the Internet all together. When in public, we could take steps to avoid being "captured" by surveillance cameras--refrain from using ATMs, avoid those businesses and public places where cameras are installed, or just stay home. We could take advantage of direct marketing opt-out lists by sending a letter or making a phone call. We could avoid credit cards in favor of using cash, telephone from pay phones, and avoid automated toll booths. We could encrypt our electronic messages and our files, and route our Internet communications through anonymizers. With enough planning and effort, we might avoid the surveillance net.
    Yet despite widespread and growing concern for privacy, we seem unable or unwilling to take advantage of the privacy-enhancing strategies open to us. Like most visitors to our national parks who idealize the beauty and isolation of the great outdoors without ever straying from the well-trod trails and asphalt roads, most of us express concern for our loss of privacy but do little to protect it. Indeed, 54 percent, the same percentage that feels website tracking is dangerous, give personal information to sites. Only 24 percent have used a fake name or other false information in responding to information requests. A mere 10 percent set their browsers to reject cookies (Fox, 2000: 2-3). Less than 10 percent use encryption to protect their e-mail, and less than 5 percent employ anonymizing software.
    Individuals may not know what they can do; or if they do know, they may feel that the costs of doing it are too high. Sixty percent of computer users, for example, do not know what a cookie is ("Business Week"). For those who disable them, the web gets smaller and slower. Refusing to disclose requested information to a website often impedes access. Using encryption software costs money and requires time and effort. While privacy-protecting strategies are available, almost all have a price.
    That there are costs for protecting privacy does not, of course, preclude the use of privacy-enhancing techniques. We do, after all, incur costs all the time for things we desire. We even do so to protect our privacy. We buy and install blinds for our bedroom windows. We build fences in our yards. The problem is that when it comes to privacy from electronic intrusion, the costs of protection are often higher than the perceived benefits. Professor Michael Froomkin explains this in terms of what he calls "privacy myopia" (2000: 1501). Individuals tend to undervalue the bits of information about themselves that allow aggregators to build databases and profiles. The problem, Froomkin says, is that any one bit of information about ourselves doesn't seem that valuable to us. This being so, it doesn't seem worth it to go to the trouble of protecting it. Yet, to the aggregator--to the person who is on the other end putting together the profile that will be sold and used as an asset in marketing--that bit of information has value. From the individual's point of view, it is hard to see what the aggregator sees, and difficult to know the uses to which the information will be put. This leaves the individual willing to give the information away or sell it cheap (1501-02). The effect of this privacy myopia is that in a given transaction, too often the costs of withholding, in the interest of privacy, will appear higher than both the values of the information withheld and of the privacy gained from withholding it. Such seemingly rational cost avoidance is even more apparent when deciding whether or not to purchase privacy-enhancing products. As one understandably disillusioned cryptographer put it: "Privacy never seems to sell. Those who are interested in privacy don't want to pay for it" (Markoff, 1999).
    The upshot appears to be that despite the protective and evasive options open to us as individuals, and despite our widely shared desire for privacy, it is unlikely that the mass of us will take advantage of self-help strategies to protect our privacy.
    Nor is our salvation likely to come from the courts. Courts have traditionally protected privacy primarily as an adjunct to real property, enforcing the law of trespass to give us privacy behind fences and closed doors, protecting privacy of place but not privacy of presence. The Supreme Court made a great theoretical advance in privacy law when it announced, in Katz v. United States (389 U.S. 347, 1967), that the Constitution protects people, not places. The law will protect our reasonable expectations of privacy, in addition to protecting the physical bounds of our real property.
    Grounding privacy in reasonable expectation might seem to offer great promise for privacy protection in the face of advancing technology, but such is not the case. The idea of expectation turns out to be an insecure footing for privacy, like sand slipping out from underfoot as one climbs a dune. Where new technology allows the capture of information that was previously not subject to capture, expectations of privacy are likely to be considered naive and uninformed, grounded in immature technology rather than in law. Claims of privacy intrusion resulting from aerial surveillance of one's house, or thermal imaging of heat emanating from one's walls, or radio pickup of cordless telephone conversations have all failed because the expectation of privacy was not deemed to be objectively reasonable. Effectively, the courts seem to say that, as far as the Constitution is concerned, people's expectations of privacy must change to adjust to the capabilities of new technologies. Like a victim of sexual assault who can prevent being raped by her timely consent, an individual can guard against violation of privacy expectation by learning not to expect it.
    Unsatisfactory as this seems, it is clear that the courts are not suited to protect us against the intrusions on our privacy made by advancing technology. The information the net picks up about us is information we put out there to be picked up. Much of the information fed to the net is transactional data, assumed to be subject to disclosure by any of the transactional parties, giving courts no basis to interpose, offering no bright lines with which to build legal barriers. Any impediments the courts might impose in the name of privacy to information flow confront countervailing interests of commerce and free expression. In this environment, courts have limited capability and an unclear mandate to shape the development of technology. Relying on courts to protect our privacy from the threats of advancing technology is expecting more than they are capable of delivering.
    While neither self-help nor judicial response seems likely to protect our privacy, legislative response is more promising. If we can't look to ourselves individually, we can look to ourselves in a collective sense. We can see privacy as a political issue, and make politics work for us.
    The goals for legislation are clear. The ultimate end is to have privacy seen as a human right, as something of overarching importance and not merely as an impediment to profit. This human rights view of privacy needs to be ensconced in law. The basics of privacy protection would include requirements of notice, informed consent, access to profiles, availability of process to correct errors, and limitation of the secondary uses to which gathered information can be put. A well-funded agency is needed to provide an institutional entity charged with promoting the values of privacy and enforcing the laws that protect it, something approaching an Environmental Protection Agency for privacy.
    So far industry has successfully resisted legislative movement toward a human rights approach to privacy. Privacy regulation is portrayed as antagonistic to the First Amendment, almost un-American. Industry touts self-regulation as the alternative. But the problems with self-regulation are fundamental. Industry's objective in self-regulation is not primarily to protect privacy, but to allay customer fears sufficiently to do business and hold government regulation at bay. In the long run, industry self-regulation is a shifting ground for privacy protection, just as is the expectation of privacy to which courts respond.
    Legislative action offers our best hope for preserving privacy. Congress has successfully passed widespread privacy-protecting acts in the past. For example, the Freedom of Information Act, which Congress passed in 1974, enabled citizens to see the dossiers that government agencies had compiled on them. The Employee Polygraph Protection Act of 1988 virtually climinated the use of lie detectors for employment purposes and thus successfully protected employee privacy rights. The Telemarketing Protections Act of 1991 limited the use of automated tape recordings and dialing machines in telephone sales and required a firm to abide by a customer's request not to call again. There were effective, though not comprehensive, legislative actions to protect privacy. If Congress becomes sufficiently aware of public concern about privacy, new legislation to protect privacy can be passed.
    Several bills are pending in Congress that at least point in the right direction. The Online Privacy Protection Act, for example, sponsored by Senators Conrad Burns, Herb Kohl, and Ron Wyden, would make it unlawful for an operator of a website or online service to collect personal information that violates FTC regulations of confidentiality and security. The Consumer Privacy Protection Act of 2000, sponsored by Senator Fritz Hollings and others, would protect the privacy of consumers of books, music, and video. The Consumer Internet Privacy Enhancement Act, sponsored by Senator John McCain, would prohibit online operators from collecting personal information without providing consumers notice of how their information will be used. These bills cautiously address concerns of privacy protection. Whether they will become law depends on the public support that can be mustered behind them.
    In closing, I call on readers to support those who are working hard to achieve privacy protection. Support advocacy organizations such as the Electronic Privacy Information Center (EPIC) and the Center for Democracy and Technology (CDT), both based in Washington D.C., and both remarkably effective at working on the front lines, organizing, analyzing, testifying at congressional hearings, documenting, and assembling archives, all in service of our privacy.
    Support our privacy writers: Simson Garfinkle, David Brin, Caroline Kennedy, Robert Ellis Smith, Jeff Rosen, Larry Lessig. These authors clarify issues and bring them to public attention.
    And finally, support the organizers of conferences such as this. This conference was a superb opportunity for people to get together and express and share and learn about privacy--how important it is to us, and how much we'll miss it if it goes.

REFERENCES
    Brin, David. The Transparent Society: Will Technology Force Us to Choose Between Privacy and Fredom? Reading, Mass.: Perseus Books, 1998.
    "Business Week/Harris Poll: A Growing Threat." Business Week 20 March 2000. March 2000 <www.businessweek.com/2000/00_12/b3673010.htm>.
    Fox, Susannah. "Trust and Privacy Online: Why Americans Want to Rewrite the Rules." Washington, D.C.: The Pew Internet and American Life Project, 2000.
    Froomkin, Michael. "The Death of Privacy?" 52 Stanford Law Review (May 2000).
    Garfinkel, Simson and Deborah Russell. Database Nation: The Death of Privacy in the Twenty-first Century. Cambridge, Mass.: O'Reilly, 2001.
    Markoff, John. "A Growing Compatibility Issue in the Digital Age: Computers and Their Users' Privacy." New York Times 3 March 1999.

PART IV

PRIVACY AND THE SELF: THE RISE AND FALL OF PRIVACY

INTRODUCTION: PRIVACY AND THE SELF
    BY LOUIS MENAND
    THE papers is this section address the subject of the rise and fall of privacy in its relation to the self. It is not surprising that the authors of these papers are all scholars of literature, for not only do we expect literary (and cinematic) works to provide a kind of chronicle of changes in the status of privacy over time, but those works have played a role in those changes themselves. They are not only a record; they have been agents.
    One of the words almost reflexively associated with the word "privacy" today is "technology." The compromise of individual privacy by instruments like television and the online computer is not an accidental by-product of technological innovation. Those instruments were invented and perfected in part so that advertisers could get into your home. Their design reflects this intention very plainly. Did you ever notice how hard it is to turn your computer off? It keeps asking you, Do you really want to shut your computer down?, and threatening you with the loss of valuable information.
    But writing and movies are technologies, too, and in their own way designed to get into people's interior spaces, to expose that which is usually hidden. Writers and directors may lament the decline of privacy and individual control over the material of their own lives, but they have done their part in the business.
    The papers that follow take up very different topics: Ruth Yeazell discusses the complexities of the private in the eighteenth-and nineteenth-century British novel; Nancy K. Miller tells the story of Mary McCarthy's famous literary reference to contraception; and David Bromwich looks closely at Martin Scorsese's remorseless satire of the culture of publicity, The King of Comedy.

SEXUALITY, SHAME, AND PRIVACY IN THE ENGLISH NOVEL
    BY RUTH BERNARD YEAZELL
    WHETHER or not there ever was a time when humans went naked and unashamed--as they have persistently wanted to believe--their impulse to cover themselves is clearly no modern development. According to Genesis, death and shame entered the world together; and no sooner had Adam and Eve eaten the forbidden fruit than their eyes were "opened" and they hastened to weave their aprons of fig leaves. Nor is it only the Judeo-Christian tradition that prohibits the viewing of the naked body. Virtually the first tale told by Herodotus concerns the violation of such a rule and the shame that follows. "With the laying aside of her clothes, a woman lays aside the respect that is hers!" the trusted bodyguard of King Candaules vainly protests when the Lydian king seeks to confirm his boasts about the peerless beauty of his wife by arranging for the bodyguard to spy upon her as she is undressing for bed (Herodotus, 1988: 36). The act of voyeurism takes place nonetheless; but the naked queen catches sight of the intruder and, deeply shamed, spells out the alternatives: either he or her husband must die. Understandably choosing his own survival, the former bodyguard replaces the king both in the bedroom and on the throne.
    These two early narratives should already caution us that the privacy of the private parts does not always signify the same thing. While the Genesis account implies that there is something intrinsically shameful about the body, so that the only couple in the world must still conceal themselves from one another, the story of King Candaules and his wife depends on the presence of a third person, whose violation of an exclusive right apparently brings on the catastrophe. Compared to the novelistic hereoines to whom I am about to turn, the queen is barely individualized; yet even as she transfers her person from one partner to the next, her refusal to be exposed to more than one pair of eyes makes its own claim to privacy.
    Sex and privacy have obviously been entangled with one another from the start, and neither, it seems clear, was an invention of the eighteenth century--some recent claims to that effect notwithstanding.(FN1) But it does seem reasonable to suggest that the present conference had its origins 300 years ago, when both subjects first became matters of heightened consciousness and reflection. From the growth of the suburbs and the provision of locks on inside doors to the widespread practice of silent reading, historians have identified this period both with a newly sharpened division between the public and the private and with a newly deepened sense of the individual's interiority.(FN2) Although the division between the sexes was never as absolute as the rhetoric of separate spheres may have pretended, this was also a time in which privacy was especially gendered female; and when an intensified feeling of sexual modesty was being cultivated in the middle- and upper-class women of Western Europe. The English novel is yet another creation of the period, and the fictions on which I propose to concentrate not only reflect these developments but had a significant role in shaping them. I am going to take samples from works by four novelists over the last two and a half centuries--Samuel Richardson, Jane Austen, Elizabeth Gaskell, and David Lodge--to suggest what happens to the representation of shame and intimacy under changing economic and social conditions. For much of this period the English novel is notoriously reticent about sexuality, yet that very fact makes it an especially sensitive register of the shifting relations between erotic desire and the need for privacy.
    Richardson's famously scribbling heroines are deservedly famous for their obsession with modesty. In both Pamela (1985a [1740]) and Clarissa (1985b [1747-48]), the sexual virtue of the heroine is under constant siege. Although Pamela Andrews finally succeeds in converting her would-be seducer into a husband, while Clarissa Harlowe suffers rape and death, both heroines struggle long and valiantly to preserve themselves inviolate. Unlike Herodotus's nameless queen, whose honor is violated merely by the sight of her nakedness, Richardson's heroines are continually threatened by actual assault, as well as by voyeurism. Yet it is only a superficial paradox that the eighteenth-century novels are at once more obsessed with the idea of penetrating the woman's body and with the need to keep that body modestly concealed. Richardson's men also hide themselves in women's rooms to spy on them unawares; but whereas Herodotus's brief tale turns on a straightforward distinction between the body covered and uncovered, these novels notoriously engage in an claborate striptease. Pamela first records a blush, in fact, not when her master attempts to remove any clothing but when he tries to add to her wardrobe. In the aftermath of his mother's death, Mr. B presents the servant with a selection of her late mistress's garments; and between the items in question (which include several pairs of stockings and two pairs of stays), his pointed allusions to their former wearer's fine shape, and the absence of any witness to the transaction, Pamela reports herself feeling distinctly uncomfortable. The first recorded use of the word "indelicate" comes from this novel (Utter and Needham, 1936: 44), and it is one measure of the heightened sense of shame and delicacy in Richardson's fiction that when Pamela's parents take alarm at Mr. B's "free expression," what they have in mind is simply his question, "dost think I don't know pretty maids wear shoes and stockings?" (Richardson, 1985a: 51) Although the nineteenth-century novel would become still less "free" in this sense than Richardson's, his fictions mark a critical stage in what Norbert Elias terms the "advance of the threshold of embarrassment and shame" (1978: 101). In the bodily decorum of Pamela, and still more in that of the upper-class Clarissa--whose "niceness," in the words of the inveterate Lovelace himself, "has no example either in ancient or modern story" (1985b: 886)--Richardson self-consciously set out to produce a new image of the sex.
    Ian Watt long ago noted how central to the novelist's imagination was the room known to the English of the time as the closet--not just a space for storing possessions, in our modern sense of the term, but a small chamber typically adjoining the bedroom and furnished with some books and a desk (Watt, 1967 [1957]: 188-89). This "small room of privacy and retirement," as Johnson's Dictionary defined it, is of course the place where the Richardsonian heroine writes and reads the voluminous letters that constitute her narrative. And even as these letters characteristically record her spirited resistance to seducation, they themselves serve as the principal evidence that more than her physical integrity is at stake in the outcome. For Richardson, in other words, the heroine's letters become the central exhibit in a concerted demonstration that she has a mind and soul as well as a body--that she is not a mere representative of "the sex," as the contemporary idiom had it, but a figure recognizable in our terms as a modern individual.
    Why such a demonstration should have been thought necessary in the first place is beyond the scope of the present argument, but it is worth recalling how the arrival of shame, according to Genesis, coincides with the mortality of the body, and how a long and deep-seated tradition associates that mortality especially with the body of the woman. If we are ashamed above all of anything that reminds us of our animal nature--as one modern theorist of shame has contended (Scheler, 1952)(FN3)--then the fact that both sexes are born of woman may help to account for the persistence of her identification with the shamefulness of sex and death (see de Beauvoir, 1974: esp. 157-223). Although these associations may seem rather far removed from Richardson's scribbling heroines, the history of Clarissa in particular was expressly designed to counter them. That Clarissa can triumphantly vindicate her sex only by departing her body altogether is one sign that the old idea of that body's shamefulness persists even as the heroine herself is converted into an angel.
    Despite Richardson's own emphasis on the solitariness of the woman writer, her letters themselves, of course, are not strictly private, since they are intended for the eyes of at least one other person. But it is important to register how narrowly Richardson would prefer to draw the circle of correspondents, and how closely he identifies their intimate exchanges with the writer's relation to herself. Not even by letter is any commerce between the sexes to be trusted. Corresponding with a man is "dangerous," the novelist warns a young female friend, because his own sex "is hardly ever void of design"--by which he means, needless to say, a design to seduce or otherwise attack the sexual virtue of the woman. Although he understandably wishes to make an exception for a "paternal" correspondent like himself, the ideal version of the scenario, he makes clear, is one modest woman writing to another.(FN4) In the novels themselves, Pamela begins by writing to her parents and then, when her letters are intercepted, "write[s] on," as she says, nonetheless; and she does so not just in the hope that she may somehow smuggle her letters out but also, significantly, in anticipation of rereading them herself should she escape with her "innocence" (150-51). Clarissa's case is rather more complicated, but her principal correspondent is her dear friend Anna Howe, and a friendship like theirs, by the latter's account, "admits of no reserves" (67). Despite their difference in temperament, the two women have, according to Anna, "but one mind between us" (131).
    Very little separates the correspondence of a Richardsonian heroine, in other words, from the keeping of a private journal. That both heroines approach the act of writing as a means of forming the self as well as reflecting it only drives home the resemblance. Thus Pamela, for example, imagines rereading her own letters after she has returned to her father's house so that the reminder of all God has done for her may "further strengthen [her] good resolutions" (75), while the more sophisticated Clarissa emphasizes how the recording of her own good resolutions enforces a sort of contract with herself: "When I set down what I will do, or what I have done on this or that occasion; the resolution or action is before me, either to be adhered to, withdrawn or amended; and I have entered into compact with myself, as I may say; having given it under my own hand" (483). More immediately to the point, by making his heroines such assiduous letter writers, Richardson grants them an interior life whose privacy becomes as much a focus of conflict as the privacy of their bodies. In both works it is "the inmost recesses" of a woman's heart, as the novelist characteristically phrases it (1985b: 174), that the would-be seducer most hopes to penetrate.
    Pamela especially is famous for turning a struggle over the heroine's person into a struggle over her papers. Although in retrospect we learn that Mr. B has been intercepting and reading her letters from the first, Pamela's habit of hiding them in her bosom or sewing them into her underclothes encourages him to assault both forms of privacy at once. From an early scene in which she slips a letter into her bosom when Mr. B interrupts her and he unceremoniously removes it, to a climactic encounter in which he threatens to strip her garment by garment in order to find the latest installments of her "saucy journal" (270), the novel repeatedly exploits this association of private parts and private papers (cf. Davis, 1983: 185) even as it strives to convert the hero's interest in one into his admiration of the other.(FN5) Before he rapes Clarissa, Lovelace, too, attempts to "ravish" one of her letters (572). Later, the anatomical suggestiveness with which he drives home the analogy confirms her fear that a man who cannot be trusted with the seals of letters will prove "capable of any evil" (529). Had he gotten his hand on certain letters, Lovelace writes, "the seal would have yielded to the touch of my warm finger ... and the folds, as other plications have done, opened of themselves to oblige my curiosity" (1085). Clarissa's greater wariness assures that, unlike Mr. B, Lovelace rarely sees any of the heroine's messages, but he does manage to intercept--and rewrite--a crucial letter from Anna that warns of his treachery; and so thoroughly has Richardson succeeded in identifying us with the intimacy of this correspondence that Lovelace's violation of the document, graphically displayed for the reader, not only prefigures the rape but in some sense exceeds it, since Clarissa will later conclude that despite the rape, her will remains "unviolated" (1162).
    In Pamela, Richardson self-consciously set out to rewrite an old story: rather than the familiar tale of a serving girl seduced and abandoned, he would tell of one whose triumphant demonstration of her spiritual worth proved her deserving of marriage. As Mr. B himself says, "Her fine person made me a lover; but it was her mind, that made me an husband" (493). Viewed in this context, his reading of Pamela's letters is an unmitigated good, since the mind recorded in the letters serves as the principal agent of his conversion. Yet it is one measure of the deep ambivalence toward women that the novelist still shared with his hero that the same action appears to condone the male's violation of the female's privacy as a means of determining if she can be trusted. "But who can describe the tricks and artifices, that lie lurking in her little, plotting, guileful heart!" Mr. B rhetorically exclaims at one point (225); and the fear that Pamela is in fact deceiving him, that she resembles others of her sex in merely feigning modest resistance, can only be assuaged, the novel suggests, by evidence not meant for his eyes. When Mr. B confiscates her journal, Pamela laments that he "will see all my private thoughts of him, and all the secrets of my heart" (263), but it is precisely the fact that they are private thoughts--and not just what she says face-to-face--that enables him to credit them. Richardson officially disapproves of his hero's actions, but his plot inadvertently confirms that the more we distrust the fronts others present to us, the more we identify the truth with secrets we must pry from them.
    In Clarissa the sexes are yet more radically estranged from one another, and the modesty of the heroine still more deeply internalized. Even more than Mr. B, Lovelace is moved by curiosity rather than lust: what he wants to know is the secret of female nature. The question, as he frames it, is whether any woman is "impenetrable" (145); and though he sometimes speaks as if this were literally a question of female anatomy, what he really means is whether any woman can hold out indefinitely against all attempts to arouse her.(FN6) Believing that every woman is a bodily creature and therefore vulnerable, he simultaneously hopes--and doesn't hope--to find one altogether "superior to temptation" (429). If he could be sure that Clarissa were such an "angel" (1037), he repeatedly claims, he would marry her, since she would then have conclusively shown that she could be trusted to preserve her future chastity. If he succeeds in seducing her, on the other hand, she will have proved just a woman after all: and a woman who succumbs to one man is always in danger of succumbing to another. As the novel devastatingly shows, however, there is potentially no end to this trial--no end, that is, other than the death of Clarissa. Since as long as she lives the possibility of her fall remains open, the only way she can prove herself conclusively above the flesh is to discard it altogether.(FN7)
    This is not quite the moral Richardson intends, but it is the end toward which his brilliant unfolding of the misogynist's logic inexorably leads. At the same time, the novel makes clear that the rape of Clarissa is really a confession of failure on the part of the rapist: the very fact that Lovelace resorts to drugs to subdue her confirms that she has proved impenetrable to all his powers of seduction. Despite his crude theory that one form of penetration will somehow effect the other--that she will no longer refuse him, in his words, "when her pride of being corporally inviolate is brought down" (879)--the act that would appear most dramatically to invade Clarissa's privacy is also the act that most clearly calls forth a private self distinct from her body. While there is a sense in which Clarissa dies of her shame, her insistence on making that shame altogether her own paradoxically affirms her dignity as an individual.
    Well before the rape, Clarissa has proudly responded to Anna Howe's suggestion that she has "modestied away" (the verb is Richardson's coinage) several potential marriage proposals from Lovelace, explaining that neither "maidenly niceness" nor concern for what Lovelace thinks of her can account for her motives. "But they arise principally," she says, "from what offers to my own heart, respecting, as I may say, its own rectitude, its own judgement of the fit and the unfit; as I would without study answer for myself to myself, in the first place; to him and to the world, in the second only" (596). Although one could argue that this amounts to nothing but a mystification of social standards, Richardson takes great care to distinguish his heroine's internalized judgment from the values of those around her. While most of her friends still hope to repair her honor, in the conventional sense, by marrying her off to Lovelace, Clarissa defiantly rejects any compromise with her rapist. What matters, she makes clear, is that she be able to "acquit" herself to herself: "the world's opinion" again comes "second" (1139).(FN8) Nor will she take the opposite tack of prosecuting her rapist in court, despite the urging of several advisers.(FN9) Rather than a public trial, she expressly leaves her justification to the private reading of her correspondence after her death--thereby identifying the text of the novel itself with an inner truth accessible in no other form.
    To the degree that the typical English novel ends with the marriage of the heroine rather than her death, it has more in common with the compromises of Pamela than with the absolutes of Clarissa. Rather than the ultimate privacy of the grave, the courtship plot aims at that partial surrender of privacy that is the intimacy of the couple. While Clarissa repeatedly alludes to "this encroaching sex" (345) as if men were in fact a different species--"What had I to do with any of them," she laments at one point, "or they with me!" (298)--courtship fiction is perforce engaged in imagining how barriers between persons of the opposite sex might be gradually broken down, or at least eroded. Shame figures here too; indeed, it is striking how consistently novelists tell the story of courtship by concentrating on scenes of shame and embarrassment. But these are stories in which the exposure of the self is ambivalently desired as well as feared; and the very experience of shame from which the respectable heroine shrinks is also, under the right conditions, a sign that she and her lover both welcome. If Pamela begins by blushing at Mr. B's free talk of stockings, she ends by repeatedly hiding her blushing face in his bosom--a gesture that signals both her continued vulnerability to the other and the sheltering of that vulnerability in the exclusive relation of the couple. Having united her lovers with an almost identical gesture in the final paragraphs of North and South more than a century later (1854-55), Elizabeth Gaskell would write of the "beautiful shame" with which her heroine slowly turns her glowing face toward the hero (Gaskell, 1995: 425).
    Jane Austen is celebrated as a novelist of courtship, but perhaps no writer is also a sharper analyst of shame and embarrassment.(FN10) Although Austen was deeply indebted to the novels of Richardson, her acknowledged favorite was not the tragic Clarissa but the now little-read comedy Sir Charles Grandison (1753-54). More important in this context, she apparently felt no need to rehearse again his imaginary assaults on women's sexual privacy. This was partly a difference of artistic temperament and partly of gender, but also a consequence of the half-century that separated her from her predecessor. The sexual restraint that Richardson had anxiously sought to establish in his heroines could now more or less be taken for granted, at least in imaginative literature aimed at respectable audiences--though Austen, it should be said, had little patience with contemporary cant on the instinctive modesty of her sex, preferring to attribute her heroines' virtue to their reasoned control of their feelings. Almost all her heroines are at some point attracted by a charming but untrustworthy man, but they themselves are never at serious risk of falling. The story of illicit sexuality in an Austen novel is typically displaced onto minor figures, as it is in Sense and Sensibility (1811), for example, where the monitory tale of a mother and daughter, each seduced and abandoned in turn, serves to point up the danger that Marianne Dashwood escapes. To the mild confusion of many readers, both mother and daughter apparently bear the same name: so little individuated are these victims of seduction that Austen scarcely troubles to distinguish between them.(FN11)
    The depth of her heroes and heroines, in contrast, might almost be measured by the time they take to reveal themselves to others. "We neither of us perform to strangers," Darcy says approvingly to Elizabeth Bennet in Pride and Prejudice (1996 [1813]); and although the immediate context is Elizabeth's piano playing--as well as his own resistance to small talk--the remark clearly has wider resonance, especially in a novel whose villain first recommends himself by a specious openness (146). Rapid intimacy is always suspect in Austen's novels, whether it is the intimacy of friends, like Catherine Morland and Isabella Tilney in Northanger Abbey (1818), or of lovers, like Lydia Bennet and George Wickham in the climactic elopement of Pride and Prejudice. Indeed, the word "intimacy" itself, so far as I can tell, often carries a negative charge in her work, perhaps because the cult of sensibility in the late eighteenth century had already begun to wear out its usefulness. Even as an adolescent, Austen was quick to mock professions of instant disclosure: in Love and Freindship [sic] (1998 [1922])--a high-spirited parody of sentimental fiction composed when she was not yet 20--intimate relations of both kinds are gleefully reduced to absurdity by the dizzying speed at which they purport to establish themselves. "We flew into each others arms," one of its heroines characteristically reports of her first meeting with the other, "and after having exchanged vows of mutual Friendship for the rest of our Lives, instantly unfolded to each other the most inward Secrets of our Hearts" (1998: 83-84). This is not yet the culture of talk shows, but it is not so distant from such a world as might at first appear.
    Yet Austen is not so unambiguously on the side of personal reserve as her burlesque might suggest. Indeed, she can hardly afford to be, lest the principals in her courtship plots never arrive at any understanding after all. In Pride and Prejudice, Elizabeth's friend, Charlotte Lucas, cynically suggests that the ladylike Jane Bennet is too "guarded" and that she risks losing the diffident Bingley altogether if she does not show her feelings more openly (21); and though Richardson would have been horrified at the idea, the plot of the novel partly bears out her claim. At the same time, of course, it endorses Elizabeth's counterargument--that having known Bingley "only a fortnight," Jane is hardly in a position to be certain either of her feeling or its "reasonableness" (22). But it is in the love story of Elizabeth herself that the novel most subtly balances the imperatives of reserve and exposure, as the barriers that separate heroine and hero are gradually eroded by the embarrassments that unite them. "I could easily forgive his pride," Elizabeth famously remarks after Darcy snubs her at the Netherfield ball, "if he had not mortified mine" (19). What brings them together, ironically, is in large part the effect of shame.
    A narrative of class rise that replicates on a more refined scale Pamela's ascent from lady's maid to lady, Pride and Prejudice cheerfully exploits the vulgarity of Elizabeth's relations both to impede her union with Darcy and to achieve it. Although Darcy first looks at Elizabeth "only to criticise," he soon finds himself "caught" by the uncommon intelligence of her expression and the "easy playfunless" of her manners--not to mention her "pleasing" figure and a fine pair of dark eyes (23).(FN12) But as he offensively confesses when he first proposes midway in the narrative, what has repeatedly fortified his resistance to her charms is the "inferiority" of her "connections" (159). While he is the nephew of an aristocrat with an income of ý10,000 a year, Elizabeth's father is merely an impoverished gentleman whose small estate is entailed out of the family; and her maternal relatives, still more dismayingly, are in "trade." Austen has taken pains to assure that the Bennet inferiority is not merely a matter of status, however; and though Elizabeth's first response to Darcy's confession is to dismiss it as "abominable pride" (160), she knows all too well what he means in the letter that follows when he refers to "that total want of propriety so frequently ... betrayed" by every member of the family except herself and Jane (163). As the narrator reports, "When she came to that part of the letter, in which her family were mentioned, in terms of such mortifying, yet merited reproach, her sense of shame was severe" (171).
    Elizabeth has in fact been blushing for one or more of the Bennets almost from the beginning of the narrative. Although their breaches of decorum take many forms--from her mother's boasting of Jane's beauty to her younger sisters' noisy pursuit of men in uniform--it is striking how often they entail some mixture of class ambition and female sexual aggressiveness. Even the pedantic Mary Bennet's excruciating musical performance is a variant on the theme, and so, more obviously, is Mrs. Bennet's loud talk at the Netherfield dinner table about Jane's prospects of marrying Bingley. Listening to the latter, Elizabeth "blushed and blushed again with shame and vexation" (84). By the close of the same visit--which has included not only her sister's musical exhibition but her cousin Collins's fawning introduction of himself to Darcy--she is forced to conclude that "had her family made an agreement to expose themselves as much as they could during the evening, it would have been impossible for them to play their parts with more spirit, or finer success" (85-86).
    After she rejects Darcy's proposal, Elizabeth's sensitivity to these embarrassing displays only increases, as she imperceptibly begins to look at them through his eyes as well as her own. That she thus identifies with his judgment is of course evidence that she is falling in love with him, even as her very capacity for shame distinguishes her from her shameless relatives and helps to attract Darcy in spite of himself. But what I chiefly want to emphasize is how the climactic episode in this sequence--Elizabeth's shame at Lydia's elopement with Wickham--serves to unite hero and heroine rather than divide them, and how it does so because the most brazen of the Bennets partly stands in for the heroine herself. "Lydia will never be easy till she has exposed herself in some public place or other," the cynical Mr. Bennet observes, when he wearily declines to exert his paternal authority and forbid her to follow the troops to Brighton (189). And while there is no question that Austen repudiates this impulse toward immodest exposure, she also knows that something like it must take place if lovers are ever to let down the barriers between them.
    Lydia, you will recall, is the youngest of the Bennets and a favorite with their mother, "whose affection," Austen pointedly observes, "had brought her into public at an early age." Although no one would confuse this stout and boisterous fifteen-year-old with her elegant and witty sister, Lydia's "high animal spirits" noisily caricature Elizabeth's own spiritedness, while her "easy manners" sound suspiciously close to the "easy playfulness" of the manners that first capture Darcy (40, 23). Even her loud laugh blatantly echoes Elizabeth's own delighted laughter at the foibles of others. When Lydia makes a nasty remark about an heiress whom Wickham once courted, "Elizabeth was shocked to think that, however incapable of such coarseness of expression herself, the coarseness of the sentiment was little other than her own breast had formerly harboured and fancied liberal!" (181). The indiscriminateness with which Lydia and Kitty pursue the officers who have been temporarily quartered in the neighborhood is a comic version of the unlicensed appetite that Richardson and others sought to restrain in the female sex. When Lydia determines to follow the regiment to Brighton, the narrator mischievously reports how she imagines the "streets of that gay bathing place covered with officers" and "herself the object of attention, to tens and to scores of them at present unknown" (190). Though Lydia ends by running away with Wickham, one of the novel's points about her attachment to him is that it is an arbitrary impulse rather than a considered choice: until the last minute, her family has no idea that his red coat signifies more to her than any other's. But we are meant to recail that Elizabeth herself was once very attracted to Lydia's seducer; and that his apparent lack of reserve, especially as compared with Darcy's reticence, was not the least of his charms. When Elizabeth blushes for Lydia, in other words, she simultaneously demonstrates her superiority to her unblushing sister and testifies to their kinship in more senses than one.
    Remarking that "ego boundaries seem especially weak" in situations of embarrassment, Erving Goffman has called attention to the way in which embarrassment tends to spread itself around among persons, even--or especially--among those not directly responsible for what inspires it (Goffman, 1967: 99).(FN13) Exercising a novelist's license with this phenomenon, Austen uses Lydia's shame for the salutary mortification of Darcy as well as Elizabeth. Elizabeth imagines that the scandal of her sister's elopement will drive him away forever--that "every thing must sink under ... such an assurance of the deepest disgrace" (225)--but the result is quite the opposite: the shame of the Bennet family turns out to be Darcy's as well, and not only because he assumes its burden when he chivalrously comes to the rescue of Lydia by arranging for Wickham to marry her. Darcy, too, has his Lydia: his own sister, Georgiana, a similarly buxom girl of 16, had narrowly escaped from an elopement with the very same Wickham the previous year. Although Austen adheres to convention by sparing Georgiana the disgrace of the more vulgar Lydia, she also condemns the pride that moved Darcy to keep the affair secret; as Darcy himself comes to realize, he has preserved his sister's reputation at the expense of Lydia's, since he has failed to publicize Wickham's history.
    This is another point, in fact, at which Pride and Prejudice registers the limits of privacy: much as we are encouraged to distrust the gossip that continually circulates in the narrative, a little more gossip about Wickham and Miss Darcy would apparently have been a good thing. Unlike people in real life, however, novelists are free to have it both ways; and without the shame of Lydia Bennet, Austen would have had to arrange some other means of bringing her protagonists together. The same secret that she condemns has helped to create her lovers' intimacy, since Darcy had already confided Georgiana's story to Elizabeth in the letter by which he defended himself after her initial rejection. That Elizabeth has kept Darcy's secret not only further implicates her in Lydia's fall (since she too has failed to issue a timely warning), but it does so by identifying her with her future husband at the expense of her family of origin. And that Darcy has shared his secret with Elizabeth but not, apparently, with his own embarrassing relative--his "impertinent" aunt, Lady Catherine (147)--only drives home this new alignment. Long before Austen's protagonists set out to "teach the admiring multitude what connubial felicity really was" (252), they thus begin to demonstrate how such felicity depends on limiting the very exposure to which they surrender. Intimacy always defines itself by excluding others from its embraces.
    Even in fiction, most women do not have such useful sisters as Lydia Bennet. But novelists are adept at devising strategies for representing what they otherwise cannot represent; and the sexual restraint of nineteenth-century heroines did not prevent many writers from staging variations on the necessary shaming of the virtuous woman. I can look briefly only at one: a mid-Victorian novel whose ostensible subject appears to place it at a far remove from the world of Jane Austen. Published in 1854-55, Elizabeth Gaskell's North and South is a novel about the clash between labor and capital in a northern English city modeled on Manchester, where its author came to settle. As its title suggests, it also concerns a division within England itself.
    The novel's heroine, an impoverished gentlewoman, is abruptly compelled to leave her rural home in the south for the industrial north, where her sympathy with the suffering workers brings her into conflict with a local mill owner. Like most nineteenth-century novelists, however, Gaskell approaches social problems through the histories of individuals; and insofar as North and South imaginatively resolves these conflicts, it does so by means of a courtship plot that is strikingly indebted to Pride and Prejudice.(FN14) As in Austen's novel, the pride in question is reciprocal, and the heroine's prejudice against the hero is so pronounced that even her own father cannot believe in her subsequent change of heart.(FN15) Here, too, her initial hostility only gives way to love after she angrily rejects the hero's first proposal midway in the narrative. Although North and South significantly transforms the class antagonisms of its predecessor--it is now the heroine who is prejudiced against "shoppy" people (20) while the hero has exchanged his landed estate for a cotton mill--in both novels she accompanies her rejection by accusing him of not behaving like a gentleman.(FN16)
    But North and South is a more openly political novel than its predecessor, and in the shaming of Margaret Hale it characteristically fuses--or confuses--sexual motives with political ones. In a critical scene that immediately precedes Thornoton's first proposal of marriage, Margaret accidentally arrives at Thornton's house in the midst of a riot by the striking workers and goads him to confront the mob and address them "man to man" (175)--only to rush down herself when she realizes that they are about to attack with whatever missiles are to hand. In the dreamlike sequence that follows, she instinctively throws her arms around Thornton's body to shield him, is herself struck by a stone, and briefly collapses, unconscious and bleeding, before the eyes of the crowd. Margaret will insist that she acted from a simple impulse of humanity, but Gaskell knows very well that the scene looks like a public display of sexual feeling. Thornton's servants report that they have seen "Miss Hale ... hugging him before all the people" (181); and though his mother has long opposed any connection with Margaret, even she reluctantly concedes that he is "bound in honour" to offer marriage, since the woman in question has "allow[ed] her feelings so to overcome her" (186). Margaret herself fiercely denies that her act had anything to do with love, but her cheeks become "one flame of fire" when she thinks of it: "I in love--and with him too! ... Oh how low I am fallen that they should say that of me!" (188).
    The publicity of the scene makes it especially daring for a mid-Victorian novel: the exposure of the heroine's sexual vulnerability is all the more humiliating because it is staged before a crowd of lower-class witnesses. When Margaret recalls the event, she suffers "a sense of shame so acute that it seemed as if she would fain have burrowed into the earth to hide herself, and yet she could not escape out of that unwinking glare of many eyes" (189). Indeed, Gaskell quickly covers over the shame of the riot scene with a shame that both the narrator and Margaret can dwell on more openly. In an elaborate bit of plotting that can only be briefly summarized here, Margaret ends up lying to a police inspector to protect her brother, who has secretly returned to England while under sentence of death for his role in a naval mutiny; and Thornton ends up covering for her, under the mistaken belief that the man he happened to see with her was her lover. When Margaret learns of Thornton's chivalrous gesture, "she suddenly found herself at his feet, and was strangely distressed at her fall" (278). From this moment on, she both fears and anticipates "the shame, the shrinking shame" of meeting him again--an end finally realized only in the "beautiful shame" of their closing embrace (295-96, 425). As in Pride and Prejudice, in other words, the heroine spends much of her time between the hero's first proposal and his second worrying about how she has been disgraced in his eyes; and as in Pride and Prejudice, both his chivalrous effort to conceal that disgrace and her increasing concern for his opinion serve to register their growing intimacy. But there is no Lydia Bennet to bear the stigma of sexual license in North and South, and, as if Gaskell sought to counter the daring of her own representation in the riot scene, she arranges for her heroine's second shame to whitewash the first: until Thornton's belated discovery that Margaret has a brother, he continues to suspect her of sexual impropriety, but in this case, of course, she is wholly innocent. That North and South still needs to guard its heroine so closely even as it exposes her is one sign of how persistent is the distrust of women that Richardson and others hoped to assuage.
    But what happens to the imagination of intimacy when the social conventions have radically changed, and sexual relations no longer wait on the protracted ritual of courtship? Short of the counterrevolution rather implausibly proposed by Wendy Shalit's recent polemic, A Return to Modesty (1999), does anything remain of the tension between privacy and exposure so central to the narratives I have examined? One answer may be suggested, however tentatively, by looking at a novel that deliberately sets out to revise these narratives for contemporary audiences: David Lodge's 1988 satire, Nice Work. Lodge is a former professor of the novel as well as a novelist; and like most of his fictions, Nice Work cheerfully echoes and parodies a number of prior texts, Dickens's Hard Times and Forster's Howards End among them. But the primary model for his ironic romance about a businessman and an academic in Thatcher's England is unquestionably Gaskell's North and South.
    Although Lodge's novel remains a slighter affair, its updating of the earlier work is nonetheless instructive. Nice Work is set in a thinly fictionalized version of Lodge's Birmingham rather than Gaskell's Manchester. Its late-capitalist hero, Victor Wilcox, is no longer a mill owner but the managing director of an engineering firm. The transformation of Gaskell's heroine is more radical: Robyn Penrose has retained Margaret's cultural superiority and her associations with the south, but she has evidently taken advantage of significant changes in the position of women since the nineteenth century: she is now a Cambridge-trained professor of literature and a feminist. A sophisticated decoder of erotic subtexts, she amuses her students by locating dubious sexual puns in North and South itself, as she lectures knowingly on "the displaced manifestation[s]" of Margaret's "unacknowledged erotic feelings for Thornton" (Lodge, 1988: 50), while her cool analysis of the sexual messages in contemporary advertisements rather shocks the more puritanical Wilcox. Lodge's modern heroine is also, needless to say, no longer a virgin; and when the couple finally go to bed, it is she who takes the lead. Their initial hostility has predictably yielded to something like love, but Robyn refuses to believe in the concept, and she firmly dismisses Wilcox's infatuated talk of divorcing his wife and marrying her. Like North and South, Nice Work arranges for the last-minute rescue of the hero by unexpectedly awarding the heroine a legacy with which to invest in his future; but though it happily imitates this bit of romance plotting, it declines to follow the awakening of desire with a wedding. The affair between these representatives of a divided England remains a one-night stand, not a marriage.
    Yet sexual shame has hardly disappeared from Lodge's narrative, and it is no accident, I think, that among the impulses that unite his odd couple is their shared feeling about the privacy of the female body. From early scenes in which Wilcox cringes at his secretary's eager display of her daughter's pin-up photos and Robyn laments the discovery that one of her students is supporting herself as an underwear model, the novel repeatedly returns to this theme. In a crucial episode, Wilcox listens with amused satisfaction as Robyn chews out a member of his staff who is planning to use the secretary's daughter in an advertising calendar; in another, she rescues him from public embarrassment by sternly dismissing her half-naked student, who has been sent to disrupt his speech to his workers with the delivery of a singing telegram. "It degrades the women who pose for them, it degrades the men who look at them, it degrades sex," Robyn says of the pinup calendar (95); and in this view, as Lodge clearly knows, the old-fashioned puritanism of his hero and the modern feminism of his heroine converge.
    Still more to the point, the novel suggests that it is this very refusal to be viewed as just another female body--not a lack of sexual experience as such--that constitutes a woman's chastity. Despite his assumption that she is not a virgin, Wilcox finds himself thinking of Robyn as "the most independent woman he had ever met ... and--it was a funny word to float into his mind, but, well, chaste." He repeatedly associates her with a painting he has seen in the local museum, in which a naked goddess vanquishes a peeping Tom by the sheer force of her look--"a look that seemed to come right out of the picture and subdue even the schoolboys who stared at it, usually all too ready to snigger and nudge each other at the sight of the female nude" (158-59). This is the Robyn with whom Wilcox falls in love; and though Robyn herself dismisses the idea of love as a "literary con-trick" (213), Lodge delights in at once confirming and disproving her claim by convincingly representing that love in his novel. A dutiful poststructuralist, Robyn also believes that "there is no such thing as the 'self'" (21), but Lodge mischievously chooses to imagine her as one nonetheless and to identify that self with her dignified insistence on being treated as an individual.
    It is now a new century, and the question of privacy is taking new forms. Or apparently new forms. Most of us no longer share the eighteenth century's obsessive concern with female chastity, but the war between the sexes as Richardson conceived it is far from over, as Jeffrey Rosen's recent study of privacy and the American law of sexual harassment only confirms (2000, esp. 1-25, 91-158). I doubt if we are about to witness a revival of the epistolary novel--especially at the heroic lengths undertaken by Richardson--but email has clearly brought back the personal letter, while the very distance and impersonality of communication by computer offer both sexes an electronic version of the modest lady's retreat. Like one of Richardson's own female correspondents, who carried out an extended exchange with him under a pseudonym, or like the novelist himself, who seems to have felt more at ease writing to his women friends than encountering them in person, the anonymous participants in chat rooms, for example, are free to reveal--or, for that matter, to invent--aspects of the self that they might otherwise fear to articulate. Cyberspace has dramatically multiplied the risks of interception, but if the very media that help to make the private individual also make her more vulnerable, we can at least place this challenge in historical perspective. Many of us felt that Linda Tripp's recording of Monica Lewinsky's telephone calls was a more serious violation than the latter's taking hold of the presidential private parts; but so in Richardson the interception of a letter may portend a more troubling violation of privacy than the penetration of a drugged Clarissa. We may not always value the privacy of the mind over that of the body; but literature, I would argue, is especially good at making us sensitive to how and why we often do.

FOOTNOTES
1 For the claim that "privacy was an eighteenth-century innovation," see, e.g., Braudel (1973: 224). For sexuality, see, e.g., Armstrong (1987: 6-7).
2 See, e.g., Stone (1977: 253-57); Gay (1984: 445-60); and especially Chartier (1989) and Perot (1990). For related discussions that concentrate on the literary evidence, see Watt (1967 [1957]: 174-207); and Brooks (1993: 28-53).
3 The German original, ýber Scham und Schamgefýhl, was written in 1913 but only appeared posthumously in 1957. To the best of my knowledge, no English translation has ever been published.
4 To Sophia Westcomb [1746?] in Carroll (1964: 66). In several extraordinary letters to this young female friend, Richardson sought to persuade her that only by retiring to her closet and taking up the pen could a modest woman dare to "shew herself," as he put it, "and that she has a Mind." His letters do not so much offer a coherent argument as a set of rhetorical flourishes, and their case is somewhat compromised by the fact that he was trying to persuade the young lady in question to continue writing to him. But he appears to suggest that letters are superior to ordinary conversation not just because writing allows for more deliberation than talk, but because the very absence of the other person that requires a letter in the first place helps to guarantee the bodiless purity of the exchange. From the common observation that "the pen ... makes distance, presence," he proceeds to a more extravagant claim--that such a pen "makes even presence but body" (mere body, that is to say), "while absence becomes the soul." Amid the "Goose-like Gabble-Gabble-Gabble" of the "Tea-Table," as he contemptuously phrases it, the "modest Lady" can only be silent, but having retired to her closet--that "Closet her Paradise, her company, herself, and ideally the beloved Absent," in his words--"there she can distinguish Her Self: By this means she can assert and vindicate her Claim to Sense and Meaning." To Sophia Westcomb, 15 September 1746; To Sophia Westcomb [1746?]; To Sophia Westcomb, 15 September 1746 (68, 65, 68).
5 After the publication of Pamela in 1740, Richardson had responded to his critics by revising some of the "warmer" bits: since the Penguin text cited here follows the posthumous edition of 1801 that incorporated these revisions, it omits the gesture with which Mr. B reaches into Pamela's bosom in the first scene alluded to earlier.
6 For a discussion of some of the wider implications of this question, see Braudy (1974: 177-206).
7 "Oh! my dear," Clarissa writes to Anna, "were but a woman who is thought to be in love with a man ... to reflect one moment on the exaltation she gives him, and the disgrace she brings upon herself, the low pity, the silent contempt, the insolent sneers and whispers, to which she makes herself obnoxious from a censuring world of both sexes, how would she despise herself! And how much more eligible would she think death itself to such a discovered debasement!" (546). Although the context is her relation with Lovelace, Clarissa makes clear that marriage to any man degrades any woman.
8 In an ironic reversal of their previous relations, it is now Lovelace who protests that Clarissa "needlessly expose[s]" them both by "publish[ing]" her disgrace to the world (1107, 1035), as she proudly announces to everyone concerned that she is not married and never intends to be, Like Mr. B, who begins by complaining that Pamela is "writing out of my family all the secrets in it" when she sends home her reports of his advances (105), Lovelace has counted on one kind of privacy to screen his assaults on another. Although Richardson would obviously not agree with Catharine MacKinnon that "for women there is no private, either normatively or empirically," his fictional scenarios do help to demonstrate what MacKinnon means when she contends that feminism needs "to explode the private" to reveal women's oppression (1989: 191). For the recent argument that in cases like that of Senator Robert Packwood or the Clinton-Lewinsky scandal, sexual harassment law in the United States has now taken the invasion of masculine privacy too far, see Rosen (2000: esp. 12-25). Rosen himself would prefer to reclassify many acts now labeled sexual harassment as invasions of privacy and punish them accordingly.
9 Wisely recognizing what the contemporary case law would have confirmed, she knows the difference between the information that would count in that public forum (like the fact that she originally agreed to a clandestine meeting with her seducer) and the sort of knowledge that would carry "greatest weight," as she says, with "a private and serious audience" (1253). On contemporary rape trials, see Flynn (1982: 109-115).
10 For a fine study of the subject, see Southward (1996: 763-84).
11 Elsewhere, Austen cheerfully mocks the Richardsonian novel--adducing as evidence that "no one ... would have supposed" Catherine Morland in Northanger Abbey "born to be an heroine," for example, and that her father "was not in the least addicted to locking up his daughters." See Austen (1995: 13). Austen reported Northanger Abbey "finished" in 1803, but it was only published posthumously in 1818.
12 The narrator pointedly characterizes his discovery of these charms as "mortifying" (23). Like Elizabeth, who will later feel deeply "ashamed" when she is compelled to revise her judgment of him (171), Darcy experiences a kind of humiliation especially reserved for those who pride themselves on their critical powers.
13 When Lydia and Wickham return after the affair has been patched up with a marriage, Elizabeth is "disgusted" by their "easy assurance": "She blushed, and Jane blushed; but the cheeks of the two who caused their confusion, suffered no variation in color" (254).
14 To the best of my knowledge, no one has worked out these analogies in detail, though several critics have noted the resemblance in passing. See, e. g., Hopkins (1952: 139); and Bodenheimer (1988: 53).
15 Compare the scene in which an incredulous Mr. Bennet confronts Elizabeth after he has learned of her engagement to Darcy--"Are you out of your senses, to be accepting the man? Have you not always hated him?"--with the scene in which Mr. Hale tells his daughter that his friend Mr. Bell suspected that she might care for Thornton: "I knew that could never be ... I knew too well what your real feelings were to suppose that you could ever like Mr. Thornton in that way" (Pride and Prejudice, 303; North and South, 332). Unlike Mr. Bennet, Mr. Hale is never disabused of his conviction, since he dies before Thornton's second proposal. But both novelists exploit the father's incredulity to highlight the heroine's embarrassment at how her present feelings belie her past pronouncements.
16 Like Austen's heroine, Gaskell's has previously refused an offer of marriage from a distant relative, and the difference between the equanimity of that refusal and the intensity of this already betrays her passionate involvement with the hero. That both novels thus postulate the alternative of marrying more or less within the family only points up the comparative exogamy of the unions that conclude them.

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HOW PUBLICITY MAKES PEOPLE REAL
    BY DAVID BROMWICH
    WHAT follows is a reminder of the value of certain experiences, or rather a way of regarding experience. The value sometimes went by the name of privacy, and the destruction of privacy is the great collective project of our time. All the dominant tendencies of mind and society abet this project: the general and unquenchable optimism of American life; the promise that technologies of the self can render us transparent to each other (with the unspoken assumption that this is to be desired); the intuition that the one thing more precious than human thoughts and feelings is the acquired ability to engineer small differences in ourselves and in those whom we love or buy. Penetrating all these tendencies, and invisibly assisting them, is the belief that choice is the metaphor that should govern free action. Consumer is the word, in turn, that naturally goes with choice; and for the emancipated consumer the locus of choice is the market--if not the stock market, then a market of some other kind; and further back, to prepare for the decisions of the market, an institution that contour-builds the best minds for the best choices: what would that be if not the marketplace of ideas? An expected child of an aspiring consumer couple, whose plan of life has gone through a rigorous first draft long before birth, the shape of whose probable character; temperament, and prospects can be read out from the arc of elective traits on the human genome map--this creature will be knowable from age zero by medical, state, and market authorities with a clarity, distinctness, and intimacy of oversight that could not have accrued to a member of an earlier generation before middle age. However, that is to look ahead slightly.
    My paper aims to describe a mood, a mood all Americans have lived with: the mood of broadcast intimacy. I heard a noncelebrity guest on Oprah Winfrey once confide to Oprah that she had never told her best friends what she was about to say, but--the real truth was that her marriage broke up almost totally because of the mayhem her daughter created at home. A typical revelation of broadcast intimacy. The guest from ordinary life did not want to say it to her closest friends or even her family; but to say it to millions of viewers was a comfort. Anyone who has ever watched a talk show is familiar with the syndrome. The woman never told her neighbors because that would have been gross. Why then was she telling the camera now? At this point the usual instruments of moral psychology are at a loss. The mass media represent life, through an intervening layer, or so we have supposed. We have yet to reckon with the novel fact that the media have been so naturalized in the lives of many that they are now widely understood to intercede for us. They confer on experience a reality it would otherwise lack.
    All this occurs in a haze of euphoria that is the very element of the media and that only an artist informed by irony can hope to convey. In the remarks that follow, I will rely heavily on the testimony of artists who have been close observers of American mass culture. But it should be plain from the first that publicity, as I use the term, does not refer narrowly to the mass media of exposure--advertisements, scandal sheets, the radio call-in and television talk shows. I have in mind a more generalized process, a rite of passage now conducted by American society in a great many venues, by which we are solicited to recognize ourselves and to know ourselves most alive as an image. It is essential to the procedure that the new self-image be identical with a broadcast image identifiable to people who never heard of us until it came into public view. The achievement of publicity--not the going public but the making public of oneself-- is to merge the private with the general conception of who one is. Its success depends on the puzzling fact that the irrevocable passage from depth to surface can be experienced as a relief.
    Another anecdote. I was at a friend's house watching him cook dinner, leafing through a newspaper, half attentive the way one can be in such settings, when the phone rang and across the kitchen I heard my friend's voice rise. "Who? You what? Wait a minute. Are you trying to sell me something?" A pause. "Yes, that is my name, that's the right spelling. Now listen. I want you to underline this number and never call it again." At which he resumed the conversation where we had left off. My friend is in his mid-fifties. an aesthete, a religious believer, and an anarchist. I mention these facts because nobody younger, and nobody rendered docile by profession and prejudice, would have handled the moment quite as he did. He was breaching a decorum of the commercial culture of democracy; to do so did not particularly strain his resources. The same decorum has been adopted in national politics. At the Democratic Party convention last summer, Al Gore's daughter introduced him with these closing words: "He's a really cool person, and I know you'd like him." It helps, if you want to avoid encounters like this, to shun politics as well as market surveys. My friend has boycotted the last six presidential elections.
    Politics and market research today share with the media the assumption that anyone's life may have to be coaxed into publicity. Naturally, it is done for the target's own good. This was the thought of the legislative assistants working under Senator Howard Metzenbaum when they dragged Anita Hill in front of the footlights to rehearse some pent-up grievances against her friend and mentor Clarence Thomas. Under publicity, they had reason to believe, the extracurricular and lurid details would be alchemically transformed and would yield a conversion of the past and present understandings of both personalities. As things fell out, however, Thomas was not hip to the publicity cure. This, as much as the offense of harassing monologues recollected in the distress of Anita Hill's afterthoughts a decade later--this culpable immunity to the logic of public confession was the real scandal of the Thomas confirmation hearings. The usual nameless dramaturge had lined up the action, all the levers of penitence were in place, but the protagonist-scapegoat failed to carry through. Hill had herself been reluctant to appear before the Senate until the suasive energy of the publicity culture, and the moralized gloss it was able to promise, showed their ascendancy at last and brought her over. Some way under the dream of the publicity cure--as one can tell by the rage it exhibits when disappointed--lies a belief that all withdrawal from publicity is suspect. It is as if such a withdrawal were really a breach of a new kind of public trust.
    To be content with anonymity, with a recessive position and its noncelebrity, when the opposite is once offered, is, in modern American society, anomalous and almost perverse. Better, under the benign gaze of camera and cassette, to admit to any transgression than to imply a contentment with the habits and manners of invisibility. A person who resists the gaze of the mass culture, to the extent that he or she is the desired object of its gaze, will, for that sufficient reason, be classified as opaque, unreliable, even in some hard-to-capture sense potentially hurtful to the normal people. Someone who acts like that has opted out of a common faith. It follows that he or she is to be treated as one would treat a member of a very small cult. The younger you are, and the more democratic your milieu, the more unmistakable the prejudice becomes. The generality of these attitudes may help to explain some recent attempts to coax into publicity an American artist conspicuously associated with an idea of privacy.
    The history of J. D. Salinger's reputation in the past decade has been one of coercive exposure to the point of torment (if one could imagine a private person feeling anything). The appetite for information seems to have grown with every satisfaction it was denied. The first well-known effort to open up Salinger's privacy came from the British literary journalist Ian Hamilton. Having written an authorized biography of Robert Lowell, Hamilton soon after conceived the ambition to write a biography of Salinger. Eventually he found his way blocked by a refusal of permission to quote from letters. Not wanting to be done out of a project, he chose to publish a first-person narrative, In Search of J. D. Salinger, about the obstacles placed by modern life in the way of an earnest biographer and an inquisitive public. Then a net of a finer mesh was spread and dropped. Another journalist, once known for her ruminations on family life and the importance of the genuinely personal, broke back into full publicity, after a muffled decade of waning renown, with a memoir of her youthful love affair with Salinger. The author was Salinger's admirer, protýgý, and, as she now divulged, his former lover, Joyce Maynard.
    Maynard had enrolled at Yale in the 1970s, and in her freshman year wrote a cover story about herself for the New York Times Magazine under the title "An Eighteen year Old Looks Back." It was the first piece of confessional journalism by someone who claimed to represent a post-sixties generation. Because the posture was new--that of the novice to experience, already disenchanted, yet innocent and uncertain how to enter the world--the essay was talked about and brought its young author hundreds of letters. One of these came from Salinger. He expressed admiration for the poise of the writing, and offered some words of advice against too much early exposure. Maynard wrote a winsome reply, asking, in effect, if he could somehow teach her the meaning of his advice. This brought an invitation to pay him a visit; the meeting went well; and Maynard dropped out of college to spend several months with the celebrated author and private man. Salinger threw her out when he discovered that, thanks to Maynard's pressing need for promotion to sell her book-length memoir, Looking Back, his phone number was now in the hands of her literary agent and Time magazine. For the next 25 years Maynard said nothing. Then, in her forties, with children to send to school and no bigger game in prospect than an Internet fanzine dedicated to herself, she decided it was time to be made real again. Salinger was now 78: it was perhaps better to have the reality conferred while he was alive. Around the time that her book, At Home in the World, appeared, Maynard announced a plan to sell at auction her correspondence with Salinger. The pair of moves was sufficient to provoke a number of journalistic profiles, and though a good deal of the attention was unfavorable to her, it also led to a new wave of speculation about Salinger and his seclusion. It is as if the public mind--of which Maynard's writings and choices in life have been at various times so sensitive a barometer--it is as if the mind of publicity itself had discovered, in the second character in this story, an irritant beyond words and beyond explanation. Salinger stands for the person who might be made real by publicity but who, given chance after chance, unaccountably does not elect to be remade.
    There is a postscript--there is always a postscript in the American life of publicity. Last year J. D. Salinger's daughter Margaret published a memoir of growing up in her family. The contents of the book are unremarkable. It is the story of a girl who adores her father and who is adored by him. In retrospect, she finds him exorbitant in many ways, and, as she comes of age and begins to see her family from the outside, she gradually realizes that he is one of those people the world agrees to call eccentric. Her book, though to a lesser degree than Maynard's, professes to have been written partly to heal or expunge a long-buried trauma. Yet it soon becomes clear to the readers of both books that the confessing women, in ways they are not fully aware of, have been throughout their lives disturbed persons; and disturbed in ways that, if obliquely traceable to, cannot be easily or confidently blamed on their experience of J. D. Salinger. It likewise becomes clear that one thing inhibiting that plain perception for both women has been a heavy exposure to advice informed by trauma theory. Margaret Salinger has come to think, as most of us finally do, that her parents made mistakes she herself would rather not make with her children. This resolution would not appear to require for its confirmation the publishing of an intimate memoir. But on the premise that we are made real by publicity, it does of course require that, since a resolution in private life is insubstantial until its grounds are worked up in public. "Ms. Salinger," reported Dinitia Smith in the New York Times on August 31, 2000, "said she wrote Dream Catcher because 'I was absolutely determined not to repeat with my son what had been done with me.'" That is to say, the examined life has not been fully examined if no record is disseminated to prove it. "Does [her father] know about her book? 'He does now,' said Ms. Salinger." Margaret Salinger refused to give the interviewer her husband's name, or that of her son, or her son's age. She did say that she hopes to write more books.
    If Joyce Maynard's confessional trespass is a peculiar and in some ways an aberrant case, Margaret Salinger's suggests the normal American state of mind about publicity. That state of mind is often self-contradictory, it is capable of self-doubt, and it tends toward the resolving of doubt through self-exposure.
    The assaults on Salinger are an inverted homage to an actual quality of the book that has kept his name alive. The Catcher in the Rye is an exuberant and delicate monologue by a quiet character whom we overhear talking to himself. He stands in a predicament that many readers, and especially adolescent readers, have taken to heart with a fondness of self-recognition. The book showed us a frank unburdening of a self. By the ease of its frankness it also seemed a kind of invitation. This was a message that was meant to pass from the character to the reader, not from the person of the author to the person of the reader, and yet Salinger's achievement is not quite unconnected with the possibility of that confusion. Holden Caulfield, the hero and narrator, has an idiosyncratic code of conscience that serves him as rigorously as a code of honor--a word he does not use any more than he would use other words of the same family. "Grand. If there's one word I hate, it's grand. It's so phony." Holden despises the phonies who have internalized an accepted public manner from the first of any encounter you have with them. These include potentially most people, but grownups more than children. The one unquestionable nonphony, a party of the elect in herself, is Holden's younger sister Phoebe. His favorite partners in dialogue are mostly in his mind; some of them in fact are writers of books. "What really knocks me out is a book that, when you're all done reading it, you wish the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it." Which author would you call up on the phone? It is a characteristic private game of Holden's. He likes Out of Africa by Isak Dinesen more then he thought he would. Maybe she is one. Probably Fitzgerald is another, for The Great Gatsby. "Old Gatsby. Old Sport. That killed me." Anyway, the authors you would play the game about are either dead or safely remote by virtue of their distance or their worldliness. The game of "call up the author" was meant to suggest an inward freedom--an example of Holden's candor with himself, of an entirely impractical curiosity, like his anxiety about what happens in winter to the ducks in Central Park. What shall we conclude? Fifty years ago an American wrote a wonderful book about the endlessness of privacy. He had the fate to publish his book in America. It was inevitable that numbers of readers would take the gesture literally as an invitation to call up the author.
    While I was writing the last few paragraphs on a train, two voices rose distinctly above the murmur of conversations. Were they talking to me? Actually, they were talking into their cell phones, with a nattering authority proper to a phone call in one's home or office. Let these voices stand for the mature and uncoerced publication of privacy. There was an audible shifting in some seats, but the veteran passengers felt no stir of irritation, having come symbiotically prepared with CD or radio Walkman. The situation would have been immediately comprehensible to Rupert Pupkin, the hero of Martin Scorsese's film The King of Comedy. Rupert calls the receptionist's desk at a talk show he wants to book himself on from another receptionist's desk to which he has just delivered a package, and asking after the star of the show and being told that the star is at a meeting, says without an air of absurdity, "I'm at a meeting myself." The many people who contrive to be heard using cell phones in public places, by that very fact can feel themselves to rise in importance. They are audibly present at two meetings.
    It is hard to speak in the older manner of nineteenth-century fiction, or of twentieth-century psychology, about the motives that drive people to consent to be made real by publicity. Certainly they know that careers can get a jump this way; and that there is cash value in the revelations. But one has to take into account a curious shade of moral approval or fellow feeling that is elicited now by self-exposure of any but the most rancid and debasing kind. Besides, the euphoria of the mass culture itself is a keener incentive than any countable reward. This mood is its own reward. How many people have come to realize, with a queasy cheerfulness, that by vandalizing their own lives and emptying out the contents of their usable relationships, they were entering into the company of the absolved. But the bridge of excuses runs both ways. The public person through an exposure of privacy steps into the accessible lower reaches of a knowing and sharing audience. The private person through a painful and maybe accidental ascent to publicity is enabled to shed the infinitesimal but crushing burden of anonymity. Both, equally, gain access to the universal drama of mass culture by which one becomes a fixed quantity for other people. How to measure the incidental sacrifice--the surrender of the freedom to live a life that people do not have a name for? Andy Warhol said that in the future everybody would be famous for 15 minutes. He did not say these were bound to be pleasant minutes. The compulsion that drives the assault on privacy, like the compulsion that, on Freud's view, underlies the pleasure principle, is beyond any rational calculus of pleasure and pain.
    The portrayal of conversions from private to public and back has a long history in the American arts, and some of the most enigmatic of our fictions revolve around the paradox of a reality brought into being by publicity. Once having been made real by publicity, the transposed man or woman may want to be rescued from public reality after all, and privacy may become the name of that paradoxical hope. The heroine of Henry James's novel The Bostonians has spent her youth preparing to exert her mature powers as a charismatic speaker for the philanthropic religious, moral, and political forces of Boston society. Verena Tarrant is expected, for her destined years of fame on stage, to breathe fresh life into the transcendental embers of the last of the Peabodies and Alcotts. Yet a suggestion has always hung about her of the counterfeit or bogus: her father, Selah, before all her speeches, winds her up to get her started with a hocus-pocus vaguely reminiscent of mesmerism. Her admirers know this, they take it in, but do not care. She is their private public star. The crisis of the plot occurs at the intervention in her life of a Southern gentleman, Basil Ransom, who falls in love with Verena and decides to rob her patrons of their prodigy, to remove her forever from the glare of recognition. His passion and the excitement of the theft are, for Ransom, a single compound emotion, while from her point of view he has a mysterious power as the deliverer of a gift her patrons could not promise: a life of private devotions and feelings.
    The Bostonians ends somewhere between irony and tragedy. An intimation is there, for us to make of what we will, that Verena Tarrant's life in the shadow of Basil Ransom will not be happy. By his resolution and her consent, we are assured only that their life will be private to the core. James understood that in America, the very thought of such a reversal is charged with melodrama; and he pronounces the last words of the novel with a full sense of their strangeness as well as their ambiguity:

"Ah, now I am glad!" said Verena, when they reached the street. But though she was glad, he presently discovered that, beneath her hood, she was in tears. It is to be feared that with the union, so far from brilliant, into which she was about to enter, these were not the last she was destined to shed.

    The reserve in the closing phrase has to do not only with the dimness of the match Verena has made, but also with the muffled pleasure of privacy itself, in contrast with the brilliant rewards of a public renown. There is a mingling of self-pity in her tears of sorrow and joy. The author of the words, who at the time was dreaming of public success for himself as a dramatist, would have entered fully into the complex feelings of his heroine.
    James's novel came out in 1886. Let us look now, almost 50 years ahead, to the American book that compels us to think the most disagreeable thoughts about the way publicity makes people real. It must be admitted that a separate problem confronts us in Nathanael West's Miss Lonelyhearts--an odd complicity between the satirical treatment and the misanthropy of the author. Where James writes as a generous ironist regarding the capacity of a public role to carve up human agents to its ends, West is decisive and hard-hearted and impartially bitter about the crowd's appetite for a suitable martyr. The hero of the novel, the columnist Miss Lonelyhearts, is denied even an individual name, and he comes to know by violence what his creator already knows--that for the tear-soaked and the traumatized who write to ask his advice, the public working through of their misery from a low to a lower depth is its own reward. It is more real to them than the life to which they would return if their letters ever had to stop. So they bring the hero closer to themselves than mere confidence implies. They include him in their lives, and, though he is by temperament a cynic and an immoralist, with a remnant only of a baffled idealism that appears in his very fascination with the letters, they nevertheless treat him according to his title as their own personal Jesus Christ. (A parody letter in the novel addresses the Jesus of the Bible as "Dear Miss Lonelyhearts of Miss Lonelyhearts.")
    West's novel deals by counterpoint with the feeble efforts of the hero to care for a woman he thinks he loves, and his automatic attempts to seduce the wife of the features editor at his newspaper. The editor, Shrike, is a satanic figure actually much farther gone in unbelief than the hero--one for whom the publicity world denotes the whole of that created life whose end is to crush the human will. Shrike has given up and he has the courage of utter bankruptcy. By contrast, Miss Lonelyhearts needs others to give him up by proxy. The moral disintegration the story traces is expertly summarized by the hero when he telis his lover why he has felt himself going dead to personal experience:

Let's start from the beginning. A man is hired to give advice to the readers of a newspaper. The job is a circulation stunt and the whole staff considers it a joke. He welcomes the job, for it might lead to a gossip column, and anyway he's tired of being a leg man. He too considers the job a joke, but after several months at it, the joke begins to escape him. He sees that the majority of the letters are profoundly humble pleas for moral and spiritual advice, that they are inarticulate expressions of genuine suffering. He also discovers that his correspondents take him seriously. For the first time in his life, he is forced to examine the values by which he lives. This examination shows him that he is the victim of the joke and not its perpetrator.

    Miss Lonelyhearts is killed on the last page by the impotent husband of a fervid reader who has come to cherish adulterous feelings for "Miss Lonelyhearts." To this man in his trance of grief, the part of the wronged husband is the best he will ever do. So the hero is crucified in the same action that consummates his mission as an evangelist of the publicity cure. Earlier, Shrike, on discovering a desperate letter from the killer, has delivered the only possible moral. The letter writer, he says, is a physical cripple and Miss Lonelyhearts a spiritual cripple: "Let each hindrance be thy ladder." The gap is impassable in this novel between those who know the publicity world to be unreal and those who are sure it contains all the life they can possibly care for.
    I have already alluded to The King of Comedy. This movie belongs to the early 1980s--a period when the image culture of the present first showed the full reach of its appetite, its glibness, its compulsive mobility, and its assurance that alongside a well-wrought simulacrum, the real thing is lucky to break even. The peculiar vehemence of the film owes much to the genius of its director Martin Scorsese. It owes just as much to a screenplay by Paul Zimmerman alert to the chatter of bars, restaurants, streets, and waiting rooms; and to a daring performance by Robert De Niro, a nervous dance of public faces that renders credibly human a person whose life is all on the surface. One might describe The King of Comedy as a comic version of a better-known film by Scorsese, Taxi Driver, where the notion of publicity as intoxicant was a notable secondary theme. The earlier and more conventional film was about an urban cowboy who, by perfecting his psychosis, and emulating every clichý of revenge in the mass culture, finally succeeds in becoming a mass killer and a tabloid hero. Like the protagonist of Taxi Driver, Rupert Pupkin in The King of Comedy trenches on the lives of people who do not belong to him. He tries to solve his life by solving theirs. But though not a shot is fired, The King of Comedy is emotionally the more violent of the two films. It presses to a terrible limit the irony that James and West were already exploring in their meditations on American privacy and publicity. No genuine life is here to be glimpsed as an index of morale beyond the image. Not only Rupert's aims and aspirations but his very demeanor suggests an erasure of the difference between the celebrity and the private self.
    Three scenes from the film bring out with uncanny vividness the merging of inner with outer and private with public. In the first, Rupert is practicing for a visit to the late-night talk show hosted by his idol, Jerry Langford. He stages his fantasy on an upholstered armchair in the basement of his mother's home--his version of the talk-show armchair where the guest relaxes and unwinds. He greets with a kiss a life-sized cardboard Liza Minnelli and tells her that she looks wonderful. He kisses Jerry and tells the audience "I love this guy." Jerry's imagined questions go unheard, but Rupert, conducting his side of the interview at nicely spaced intervals, can be heard bragging sheepishly in the talk-show manner. "Oh boy, I'll tell you. Every time you come back from a tour, I don't know what it is, but there must be something in the air or the tour, it really becomes you, it's like you become rejuvenated, I don't know what it is. Isn't that so, everybody?" The scene ends on a shout from his mother upstairs. The bus has come early. This full-scale homemade simulacrum of redemption-by-publicity tells a truth about the character that could not be conveyed otherwise. Rupert has arrived at a sublime readiness for celebrity. The smugness, the strut of the show-biz elect, the patina of suavity, and most of all the first-naming--which oils every conversation with an ever-adjustable intimacy--all of the trait of the character that Rupert puts on, cribbed from top to bottom out of Jerry Langford's television manner, come to seem part of a predicament larger than the character itself.
    A later scene shows him cooling his heels at the office of The Jerry Langford Show. He has turned in audition tapes to showcase his talent and is waiting for Jerry to listen to them. A sleek-haired personal assistant who handles the bookings for the show has told him plainly that he needs to be seen in nightclubs first and come back when his material has sharpened. Rupert does not get the hint, and sits down for a long wait, and as he sits he thinks of the moment when the crooked will be straight. Another fantasy: he has now advanced to full celebrity guest on Jerry's show, and, on the pattern of "This Is Your Life," Jerry says they have brought in someone to surprise him. Enter an ineffectual-looking older man with glasses and a mustache--a face like many others. Do you know who this is? Jerry asks. Rupert, by now too important to be embarrassed, grins and says no. It is the principal of Rupert's high school and he has come to perform Rupert's wedding ceremony on TV. The talk-show partitions swing back to reveal a television chapel and the piano on which the principal is next heard playing the wedding march. Before he performs the service, much moved, he delivers a public testimonial to Rupert.

When Rupert here was a student at Clifton High School, none of us, myself, his teachers, his classmates, dreamt that he would amount to a hill of beans. But we were wrong. And you, Rupert, you were right. And that's why tonight, before the entire nation, we'd like to apologize to you personally, and to beg your forgiveness for all the things we did to you. And we'd like to thank you personally, all of us, for--for the meaning you've given to our lives.

    We are present at a miracle akin to transubstantiation. Rupert, in the glow of these abject words, passes from defeat to triumph forever, and as that happens the talk-show audience is made to feel that by applauding his success, it can legitimately admire and absolve itself. Privacy, such as may belong uniquely to one's own victories and defeats, has here been transformed into a medium of unlimited sharing.
    If one had to describe in a word the character of Rupert Pupkin, one might say that he is constituted by empathy. It is an abstract gift that runs as it were in an unimpeded current, from his expressiveness about having a well-digested life, to the other person's similar expressiveness. No intervention is allowed from the specific density of events and feelings. He meets by chance a young woman, Rita--a beauty he has admired since high school who works now at a bar and is resigned to being a nobody--and when after a dinner date she asks what he wants, his reply is pure empathy. "I love you," he says. "I want to help change your life." But this is the same thing as pure publicity: "What if I set something up between me, you, and Jerry." He has met Jerry once in a taxi. Rupert gave Jerry his personal card and Jerry told Rupert that if he wanted a career in standup comedy the bottom was the place to start. On the strength of this meeting Rupert tells Rita he will take her to Jerry's summer house. The inner life has been evacuated: it would be a nuisance anyway, and nobody ever told him about it.
    The frightening premise of the film is that such empathy or adaptability is consistent with the character of a good-natured conformist, or a young man on the make, or a violent psychopath. The story has its climax in Rupert's kidnapping of Jerry Langford--a hostage whose ransom becomes the ceding to Rupert of that night's monologue. The plan to be made real by publicity succeeds. The monologue is delivered to a solid ration of applause before he is picked up by the police. A coda invites us to believe, and we are surprised to find how far we can believe, that after serving his time in prison Rupert will come back all the better for the exposure. His fame will turn out to be renewable, and his choices have scarcely left him any cause for regret. He would do it again.
    The most disturbing moment in The King of Comedy is not the kidnapping: it is the interlude in which Rupert actually does bring Rita to visit Jerry at his summer house. All things in his mind have passed into the currency of television. Evidently a running joke on the show about the house guests Jerry finds himself perpetually having to put up has been taken by Rupert to mean that anyone who encounters the famous host will be vaguely included in the invitation. In their one meeting and in his reveries, Rupert must have called him Jerry hundreds of times. Obviously, the deftness of the host will take care of any detail Rupert missed, and everything at the house will go well. By the rules of television reality, it should. But when they arrive in their slick party outfits, Jerry is on the golf course, and the butler in the empty house, confused by the unfamiliar guests, telephones him in a panic. Jerry comes back in his shorts and sweater, with golf club in hand, and is livid with anger. Rupert offers him a drink from his own stock: "What's your pleasure?" The late-night Jerry--played to the last ooze of expertise by Jerry Lewis--has always been the most accessible of public persons. In this light Rupert's inability to take the hint is a kind of homage. And yet, on his private estate, Jerry's sense of himself becomes identical with a retentive pride in what he owns. The point is emphasized by a visual joke. Rita, who is not likely to see such a place again, slips into her handbag an exotic paperweight. On her way out, she then profusely apologizes for Rupert, who at first disowns her ("She's a girl who works in a bar. She wants to spoil everything.") and only at last understands that he is being ejected. "I have a life, OK?" says Jerry. "Well," says Rupert, "I have a life, too." "That's not my responsibility!" Jerry's last words are an indignant shout. One may have noticed in this scene that the face of Jerry Langford at home is lined and puffy and cruelly definite. It has a trace of a snarl. A face that bears the dimmest likeness to the image Rupert has spun out from the public glaze of hospitality.
    Irving Feldman is an American poet who has written deeply about the way publicity makes people real. I have in mind particularly a satire that resists summary, "In Theme Park America," and a shorter poem, "Interrupted Prayers," which I will quote in part from Feldman's book The Life and Letters. In structure, "Interrupted Prayers" is a monologue with commentary. There are three characters: a listener to a radio call-in show, Don; the host of the show, Larry; and a hidden listener, Irving--all first names of course. The opening lines establish a night-long stage set of broadcast intimacy, an apocalyptic communion of the lost where self-hatred is anointed by self-love:
    The sun goes, So long, so long, see you around. And zone by zone by zone across America the all-night coast-to-coast ghost cafý lights up. Millions of dots of darkness--the loners, the losers, the half-alive--twitch awake under the cold electronic coverlet, and tune in their radios' cracked insomnia. A static craziness scratches and buzzes inside the glowing tombstones of talk--some crossed wires' hodgepodge dialogue, of Morse and remorse of garbled maydays of prayers shot down by Heaven's deaf ear. Heaven itself is crashing tonight.
    The host Larry is a successful stew of affability and punitive scorn--an accurate detail since the worldly success of the call-in host is often a motive of the call-in conversations. Beyond the equality of the listeners in communion, there stands one hierarchy untouchable: the ultimate divide between the man or woman at the microphone and the petitioners who meekly approach to solicit advice or encouragement. Their hopes are at once raised and humbled by the knowledge that in an instant their prayers could be interrupted and the line go dead at the whim of success.
    It seems a fertile breeding ground for resentment, but the anger never quite breaks through. Here is Don from Cleveland, "longtime listener, first-time caller," who has "a comment and a question" and is told to come to the point. "What is your question?"
    "My comment, Larry, is just this: Larry, if anyone's out there, I mean, anyone at all, who's contemplating suicide--don't do it, please! I tried it once. It's not worth it--believe me. So please, I beg you, please get help, get help fast! See a counselor, a minister, a therapist!" The marvelous T-word sizzles on his tongue. "I can't emphasize this enough. But Larry," he segues smooth as a pro, right on beat, "I'm really phoning in to ask you this. Historically, twenty-two major leaguers have played in four different decades in the Bigs. Larry, can you tell me how many of them are active now? And can you tell their names, Larry--please?"
    Now, which was the ulterior motive of Don's call, the comment or the question? The nature of broadcast intimacy makes it impossible to decide.
    The words uttered by Larry the host are minimal. They convey the punctual aggression suitable to so compressed a format, though it comes in various disguises. Transparent hype: "Touch all the bases, baby!/ Go, go, go! Go for it, guy!" Admonishment: "I haven't got all night, sir. / I have other callers on the line." A rebuff: "What are you, some kind of wacko, sir?" And a conciliatory farewell: "'Hey, Larry, am I right? or am I right?' / 'When you're right, you're right, baby ... '"Larry's remarks in italics, like the comment and question by Don, fit into an all-purpose tenor of salutation. What can it mean? The poet draws back once near the end to observe:
    Larry's voice holds Don off at lash's length--not to be contaminated by loser taint. And certainly success owes this to itself, to go on being successful, and always be wanting more--not like ghosts, who have to hunger for Larry's hunger, who call and call in, hoping to please him, because losers can't please themselves. From admiration, we break our bones, we hold the shattered stemware up to him, we say, For you, this toast. I am nothing. But drink my marrow--and be everything!
    The poem closes after a last exchange, but not before the poet has awakened in the small hours to hear Don's call replayed on tape. That hell may be nothing but an infinite repetition of life's humiliations, is a profound conception shared by pagan and Christian theologies, and the nightmare of talk radio is that everything is said endlessly. "The phonographs of hades in the brain," wrote Hart Crane in lines that eerily anticipate Feldman's extraordinary poem, "Are tunnels that rewind themselves, and love / A burnt match skating in a urinal."
    "Interrupted Prayers" brings into startling focus a strain of masochism that now pervades American popular culture and that one sometimes feels may be its central unspeakable motive. Though scholars like Carol Clover and Mark Edmundson have had interesting things to say on this subject as observers, we will lack a clue to the origin and aim of masochistic programming until sociology becomes again a major discipline. For the American culture of publicity did not acquire its present texture by accident. Well-designed patterns of financing and a corporate personality type of specifiable habits and background have presided over the emergent authority of high-fashion photography, video games, slasher movies, and both white and black rap music, genres that are far more closely interlinked than their precursors in the media of 30 years ago. The methods in force and people in charge need to be carefully tracked before they can be named and the truth told of their works without fear of slander.
    The masochism of our current recreations and entertainments cannot be separated from the broader therapeutic culture with its garish, glamorous, and finally abject dogma that in every life there are wounds that need healing; that the unhappiness of life comes down to an avoidable event or series of events to investigate and anatomize; and that experience may be reduced to experiences--on the understanding that bad experiences often happen early and always occur as side effects rather than as signs of an inveterate character. These beliefs, in their gathered force, exhibit the corruption of a truth about personal freedom. They aim to divide the sanctity of the person from the pathos of responsibility. Indeed, among the leading purposes of the therapeutic culture is the giving of assurance to the morally helpless. Does the responsibility weigh too much? Then it was a mistake for anyone to ask them to bear it. At this point one is brought back inevitably to the question of class. Publicity may have become for us what political economy was said to be for an earlier age, "a gospel preached to the poor." Or rather it is now a gospel preached to the people Nathanael West called the "profoundly humble" with their "inarticulate cries of genuine suffering."
    Readers of Herbert Marcuse's One-Dimensional Man will recall that book's unsettling picture of two rival versions of utopian liberation. The first possibility is a regime of "non-repressive sublimation," where the free play of aesthetic imagining is emancipatory for society in action as well as imagination. Individuals would approach their projects in life with the kind of interest that artists bestow on works of art. The other possibility is a regime of "repressive desublimation": unlimited pleasure, but in the total absence of political or personal autonomy. The current Fox TV miniseries Temptation Island calls for real-life couples to be sequestered on an island under the camera's eye while they resist or succumb to a corps of unattached tempters who have been assigned real-life supporting roles. The couples know what they are getting into. They have placed themselves in the line of the betrayals or self-betrayals that are a hazard of every life--only they have done it in conditions of formalized, almost dreamlike, predictability. Nothing is new in the problems of will and the field of action that are presented here. The puzzle is why even the most pandering and besotted of the media, and the most naive of the young bodies yearning to be made real, should have bargained for an exposure quite so exacting. The president of Fox Entertainment, Gail Berman, described the show as "a terrific, unscripted soap opera," and the choice of metaphor is revealing. Conventional fiction itself has become too fake, too scripted. The solution is to turn reality itself into an organized fake. In this way the new sort of fake, though soaked in the clichýs and stereotypes of garden-variety soap opera, takes on a peculiar pungency because it is also infallibly the real. The interest now lies not in the plot but in the consequences--in the lives of the actors that stay changed long after the show is over.
    The great modern allegorists of a self traduced by exposure, Kafka in The Trial, for example, never traveled this far in imagining self-desertion. By the rules of the game to which the contracting couples have submitted, every public act in the real-life story will count a second time as a private act in someone's life. The temptations and responses that pass on-screen cannot be effacted from the lives offscreen, since, ultimately, these people have no part to play except themselves. By the same token, every private act counts a second time as public, and to that extent can no longer be reckoned a personal act in the familiar way. The idea of such a calculus is as bizarre and psychically taxing as the notion that the experience you dream is true because you dreamed it. This last, in fact, is a common dread of the sane: the relief of waking up is to recognize that it was unfounded. But once people's lives have been framed by the options of on-screen reality, there is nothing left to wake up to, just as there is nothing left to the imagination. To ask whether we can live without privacy is to ask whether we can live without imagination.
Privacy is an aristocratic idea. The most private of novels and one of the greatest is The Princess of Cleves. The action there turns on a feeling whose proof is a deed not done and a communication in open sight that is hidden from all but the person who sends and the one who receives. Feelings today still pass between people, with the same subtlety and depth of implication, but the fact that they do has become a secret. The obvious explanation is a craving for stimulus--anything, however brutal or degraded, to rouse the mind from inertia. But could it be that a kind of resentment also underlies the extremity of the change? Privacy should not have been incompatible, it was not initially or visibly so, with the coming of democratic manners in the nineteenth century. It was an idea whose arrival could seem in keeping with the spirit of the age, as it was for the great practitioners of the realist novel: Turgenev, Tolstoy, George Eliot, Henry James. What seems to have cut off the reserve of manners and judgment the novelists took for granted is the permanent ascendancy of plebiscite and market surveillance. How do we know who you are unless we know the things you like, and why you prefer those things to certain other things? And you can help us to learn by answering just a few questions. The morale of advertising in American democracy says: "Let us make you more comfortable by giving you more and better choices, since we know that all people want comfort and indeed want it in ways they have scarcely imagined." What my friend was saying when the phone rang was an affront to the indecencies of the market. He declined to share the premise itself about the good of sharing. "I did not," he was really saying, "invite you into this room and into my life, not even for one moment. My saying nothing to you until you called was not permission to call. My not knowing you was not an indication that I probably want to know you. It was quiet here before; your question left us where we were, before any kind of beginning; and that is where we should stay for now--strangers, unless somehow we agree to do something together."
    What have we lost? A certain spirit of unpresumingness. A generosity of personal distance that had its roots in chivalry, but which there were reasons to expect democracy could discover its own version of. (When Walt Whitman said, "What I assume you shall assume," he implied an acknowledgment between two people before the rest of the conversation began. It was an acknowledgment of equality, but that did not mean it went without saying.) The culture of mediation has been clamoring for a long time to effect once and for all the good it wants: faster beginnings, more efficient paths all the way into our lives. After all, it says--and doubtless this is true--your comfort depends on your acceptance. This culture has not yet won exclusive control of American manners, but, in the past two decades, it has gained ground spectacularly. Whether a regime of publicity could ever be congenial to the interests of political democracy properly understood, is a separate question, and one that we may prefer not to put to an ultimate test. It does seem to me that privacy may be one of those checks or balances of democratic life necessary to its public success--as necessary as the existence of courts in which each member of every jury holds a dialogue of conscience for the length of a trial and longer, without so much as a tremor of a wish to speak out to a reporter. "Were we even there," the voices might well complain, "if we never saw our names in the paper?" Do our private opinions count as opinions at all unless we see them associated with our image in full view? It is hard to say for sure; it always has been hard. But one kind of moral life depends on the possibility that, even in what we do not say, in what we do not come to be known for, we remain interesting to ourselves.
Rupert Pupkin at home with cardboard Liza Minnelli.
Jerry Langford announces Rupert's surprise wedding on TV.
Reality guests at Jerry's summer house. Courtesy Twentieth-Century Fox

REFERENCES
    Feldman, Irving. The Life and Letters. Chicago: University of Chicago Press, 1994.
    Hamilton, Ian. In Search of J. D. Salinger. New York: Random House, 1988.
    James, Henry. The Bostonians. New York: Modern Library, 1956.
    The King of Comedy. Director Martin Scorsese. Screenplay by Paul Zimmerman. Perf. Robert De Niro, Jerry Lewis, Diahnne Abbott, Sandra Bernhard. Twentieth-Century Fox, 1983.
    LaFeyette, Madame de. The Princess of Cleves. Trans. Nancy Mitford. New York: New Directions, 1951.
    Marcuse, Herbert. One-Dimensional Man. Boston: Beacon Press, 1964.
    Maynard, Joyce. Looking Back. Garden City, N.Y.: Doubleday, 1973.
    Maynard, Joyce. At Home in the World. New York: Picador USA, 1998.
    Salinger, J. D. The Catcher in the Rye. Boston: Little, Brown, 1951.
    Salinger, Margaret. Dream Catcher. New York: Washington Square Press, 2000.
    Taxi Driver. Director Martin Scorsese. Screenplay by Paul Schrader. Perf. Robert De Niro, Cybill Shepherd, Harvey Keitel. Columbia Pictures, 1976.
    West, Nathanael. Miss Lonelyhearts. New York: Avon Books, 1955.

WOMEN'S SECRETS AND THE NOVEL: REMEMBERING MARY MCCARTHY'S THE GROUP
    BY NANCY K. MILLER
    I have never put a toothbrush in a poem.
    --Sylvia Plath, "A Comparison"
    GET yourself a pessary" was how it began.
    In 1954, Mary McCarthy published a story about a girl and a diaphragm in Partisan Review. The attention-grabbing story about a young woman's visit to a birth-control clinic, "Dottie Makes an Honest Woman of Herself," ultimately became a chapter in McCarthy's 1963 best-selling novel, The Group.(FN1) Other chapters later ran in The New Yorker but this one captured the popular imagination and launched the novel's reputation well in advance of publication. The Dottie story, the Newsweek reviewer of the novel recalls, "was saluted by one ironical commentator as an ambitious attempt to do for the female contraceptive what Herman Melville did for the whale" ("Review," 1963a).(FN2) If this was the first time that a diaphragm appeared in a literary work, it was not to be the last. While not on Melvillian scale, Philip Roth's prize-winning 1959 novella, Goodbye, Columbus, turned explicitly on McCarthy's use of the device. When Neil Klugman urges Brenda Patimkin to visit a Margaret Sanger clinic in New York in order to be fitted for a diaphragm, his girlfriend resists, thinking that she must be just one in a series of women--some "whore"--he sent there. No, Roth's hero protests, it was from reading Mary McCarthy that he acquired his knowledge; from books, not sordid experience. Still Brenda resists. Going to the clinic would make her "feel like someone out of her'" (1993 [1959]: 82). It would mean "something affairish," a slightly seamy adventure that ended badly, rather than her very own private drama whose plot she planned to have a say in; not a summer romance but something more like marriage. By 1959, McCarthy had sufficiently blurred the lines between private life and public scandal, autobiography and fiction, to give a nice fifties Jewish suburban girl like Roth's heroine pause--as well as an education in birth-control alternatives.
    There was nothing new about getting a diaphragm in 1954; Margaret Sanger had been dispensing them in her clinics since the 1930s.(FN3) What was new was reading about it in fiction, where to many women--single women, that is, often eager to lose their burdensome virginity--the information seemed an important, even vital revelation. Reminiscing about her college years (Radcliffe, 1955), Nora Sayre reconstructs the ambient ignorance that coexisted with a desire to pierce the mysteries of sexual technology: "But we still had far too little information about birth control: some believed that a Pepsi-Cola douche was sufficient. Philip Roth was correct in Goodbye, Columbus: I did read the excerpt from Mary McCarthy's The Group in Partisan Review in order to learn more about diaphragms, and women students told each other where to find the magazine in Widener Library. But literature and myth did not suffice, nor did the foam of the Fifties; among my private word association tests, when someone says 'Radcliffe,' I think 'pregnant'" (1995: 174-175).
    Certainly, it took more daring to get fitted for a diaphragm in the reality of 1954--the year the story was published--than in the fiction of 1933, the year in which McCarthy's cautionary tale is set. On the other hand, it happened. In Minor Characters, her memoir about coming of age in the 1950s, Joyce Johnson recalls the tension that surrounded the acquisition of this item: "'I've got it!' a girl screams down from a third-floor window in Hewitt Hall my senior year at Barnard. 'Come on up! I've got it!'" (1990 [1983]: 84-85). In 1954 at Barnard College (ahead of Radcliffe in this domain), "this illicit thing" is "contraband." Getting a diaphragm in the 1950s, if you were not married, was an enterprise that entailed a mix of daring and embarrassment. It was as though public and sexual were two concepts that could not be combined in single women (hence the shock embedded in the very title of Helen Gurley Brown's 1962 bestseller, Sex and the Single Girl). Single girls bought a fake wedding ring at Woolworth's and gave a false married name at the Margaret Sanger clinic.(FN4) Joyce, who could never quite make herself take the trip to the clinic, ends up predictably pregnant instead, and has a classic fifties backstreet abortion. "It's odd," she notes, looking back, "what you have the courage for and what you don't" (97).
    This was not, of course, the first time McCarthy had gone public with her brand of female realism--or maybe naturalism would be the better literary term. In her notorious 1941 story, "The Man in the Brooks Brothers Shirt," which also appeared in Partisan, McCarthy's Margaret Sargent has sex with a stranger on a train. Like Roth's heroine, women readers tended to take McCarthy's revelations to heart. It is indeed the impact of this story on one such reader that gave Elizabeth Hardwick the lead for an enthusiastic essay in Harper's: "'Mary McCarthy! 'The Man in the Brooks Brothers Shirt!' That's my Bible!' I once heard a young woman exclaim" (1962: 33). Talking with Doris Lessing in her autobiography, Flying, about the effect The Golden Notebook had on women readers because it committed to fiction what had not been there before, Kate Millett invokes "The Man in the Brooks Brothers Shirt" to make her point about Lessing's famous tampon scene: "There's a passage in Mary McCarthy where the heroine so-called does the sublimely stupid thing of getting drunk on a train and spends the night in a berth fucking some character she's picked up. It's the sort of harebrained thing we've all done and hated ourselves for afterwards. But she had the guts to admit it. Was honest enough" (1990: 357). Hardwick had expressed similar sentiments in a 1962 Esquire profile of Mary McCarthy, set up to publicize The Group. Commenting on her friend's "intense scrupulosity," Hardwick prefigures Millett in more ladylike prose: "Lots of women had taken up with a man on a train before--or at least they'd thought about doing it--but this was the first time anybody ever wrote about it.... I was absolutely bowled over" (63). In a recent meditation on reading novels about women writers to find oneself, as well as instruction about being in love, Vivian Gornick recalls in much the same vein the impact of reading McCarthy's early stories. "Oh god! we moaned over 'The Man in the Brooks Brothers Shirt,' that is just the way it is" (2000: 136).
    When Lessing responds to Millett's admiration for recording women's experiences with the kind of unexpected detail that compels both recognition and admiration, she laughs in complicity about the bathroom scene, another first. "'Of course that is just the sort of thing one blushes to write'" (1974 [1962]: 357). And yet the embarrassment has its rewards: "'But the most curious thing is that the very passages that once caused me the most anxiety, the moments when I thought, no, I cannot put this on paper--are now the passages I'm proud of. That comforts me most out of all I've written. Because through letters and readers I discovered that these were the moments when I spoke for other people. So paradoxical,'" she concludes her thought, "'because at the time they seemed so hopelessly private'" (357; emphasis added). Lessing here identifies one of modern privacy's greatest contradictions: the more you cross the accepted boundaries cordoning off the private from the public, the more you erode the difference between them; the more you reveal what seems impossible to share the more you ... connect.
    Or not. Some readers are repelled by the revelation of these bodily moments; still others made nervous. To simplify, we might say that for every Millett there is a Mailer--though to be sure, if gender is key to the nature of the material, gender does not always tell the whole story about its effect in print. Nonetheless, the intimate experiences that writers and readers historically have seemed most concerned with protecting and exposing bear the mark of gender, for they are located, concrete, enfleshed. As Peter Brooks observes succinctly in Body Work, "Intimacy is of the body, and the body is private" (1993: 51). In the 1950s--the era to which, despite the early-1960s date, The Group and The Golden Notebook belong--the category of intimate, female experience was perceived to be a zone of propriety, a domain meant to be protected from the public eye. McCarthy's and Lessing's novels challenged what literary types interested in critical reception like to call the "horizon of expectations." They surprised and even shocked readers by their experimental form and by the unexpected appearance on the page of objects from that domain: private information dispensed by women writers.(FN5)
    I want to look briefly now at some of the responses to The Group triggered by exposure of--and to--this new material.(FN6)
    What did McCarthy feel about leaking secrets, making these private women's things public? When asked by an interviewer for Vogue just before The Group came out whether "being a woman" inhibited her from writing about sex, and whether there was "any other aspect of emotional life" she might find "tricky to write about" as a woman, McCarthy answered airily: "I'm afraid I'm not sufficiently inhibited about the things that other women are inhibited about for me. They feel that you've sort of let the side down, you know, that you've given away trade secrets, if you write very candidly about certain things" (1963: 143). Louise Bogan, the poetry reviewer for The New Yorker, describes in a letter to a friend her largely favorable impressions of The Group in terms of betrayal and exposure of those "certain things"; "Women's secrets again," she sighs excitedly, "told in clinical detail" (1973 [1963]: 353). What is coded by women as "women's secrets" invariably references the bodily, the sexual, and rings another familiar change on the paradoxes of privacy: women's "secrets" are both a revelation and completely commonplace. As Millett says about the Lessing bathroom event: it "happens every month of adult life to half the population of the globe"; but it is a shock to that same population when it happens in print: "In a book!" (1990: 357).(FN7)
    And that was exactly McCarthy's aim: to make it happen in a book--a novel. In that gesture McCarthy was participating in a long history of secret telling that Michel Foucault famously described in the first volume of his History of Sexuality (1980), whose French title literally translated is: "The Will to Knowledge." When Foucault looks for a fable to ground the project of his essay, the historian--being French--turns naturally to the French eighteenth-century novel, to a tale by a philosophe called The Indiscreet Jewels. The fable of the fable, we might recall, is tied to a magic ring that an inquisitive sultan is given to test the loyalty of his harem; when the ring is aimed at a woman's genitals, they start to talk, to give up their secrets--unwittingly-- against their will. The novel as a genre never quite abandons that project of trying to find out what women do in private, looking to discover--and uncover--their secrets. To be sure, Foucault never worried about the role gender played in the power vectors of bodily knowledge, but McCarthy did (although I freely admit to hijacking her novel into a feminist version of the enterprise).
    When in 1959 McCarthy applied--successfully--for a Guggenheim Foundation Fellowship to finish the novel she had started in the early fifties, she staked out just this territory in her application: "No male consciousness is present in the book; through these eight points of view, all feminine, all consciously enlightened, are refracted, as if from a series of pretty prisms, all the novel ideas of the period concerning sex, politics, economics, architecture, city-planning, house-keeping, child-bearing, interior decoration, and art. It is a crazy quilt of clichýs, platitudes, and idýes recues. Yet the book is not meant to be a joke or even a satire, exactly, but a 'true history' of the times despite the angle or angles of distortion" (Gelderman, 1988: 253). It is interesting, even instructive, to revisit McCarthy's project through the prism of seventies feminism and nineties postfeminism for another look at the alignment made between "true history" and a "feminine" point of view. What would a pessary say about its intimate experiences if it could talk? Or a nursing breast?
    What in turn did the critics have to say about history rendered through the perspective of those "pretty prisms" rather than the clear lens of male consciousness, to stay within McCarthy's authorial metaphors?(FN8) Crudely but not atypically, a reviewer for the Times Literary Supplement complained that "at the end we know much more about Dottie's vagina than ever we do about Dottie" ("Review," 1963b: 901). (This argument by metonymy echoes the famous remark by novelist Francois Mauriac that, after reading The Second Sex, "Beauvoir's vagina no longer held any secrets for him" [Moi, 1994: 180]).
    By 1963, McCarthy was a well-established--not to say feared--literary figure, and the power of her persona to damage others shapes all the rather nervous reviews of the novel.(FN9) Even Norman Mailer hesitates briefly before going for the kill in the New York Review of Books. What is one to make of this novel by "our First Lady of Letters" that has garnered such a mass of accolades, he wonders aloud. A new novel by Mary McCarthy will not be ignored--but it will also be trivialized by being demoted to the "lady-book" (1963: 1).(FN10)
    The Group takes as its central subject the entangled question of ambition and sexuality in the lives of eight young women who, like McCarthy, graduated from Vassar in 1933. The Group is about what Mailer disdainfully but also with an ambivalent recognition of her "method" called the "profound materiality of women" (1963: 3). Mailer was not the only reviewer to be impressed by the sheer mass of detailed information McCarthy provides--both about the thirties and women's domestic lives--but in the end for him the book failed as a novel. "It will continue to exist as a classic in sociology long after it is dim and dull as a novel, it will survive in Soc Sci I at every university and junior college: the specific details are to be mined by the next twenty-five classes of PhD" (3). Had women's studies courses existed in 1963, Mailer would have no doubt predicted the novel becoming their Bible. Our bodies, ourselves, avant la lettre. The American way of life after the speculum.

"GET YOURSELF A PESSARY."
    Like Nora Sayre, readers in the 1950s automatically replaced the word pessary with the more familiar diaphragm, as Roth did in his story. Pessary is indeed an odd word, and sounds archaic, as though it belongs to another era. But it is there for a reason, beyond the fun of local color, even if McCarthy milks it thoroughly for the punning opportunities it offers. McCarthy's story, I want to suggest, is also an important document in the record of women's struggles for control over reproduction, and by that token, the domain--discursive and physical--of their private lives.
    The first sentence startled McCarthy's audience in the 1950s but it was more than a one-liner. McCarthy spins a tale from her lead. "Dick's muttered envoi, as he propelled her firmly to the door the next morning, fell on Dottie's ears with the effect of a stunning blow" (1989 [1963]: 58). On the moment, the poor girl is linguistically challenged.(FN11) "Get yourself a peccary?" Perplexed, Dottie conjures up a piglike animal studied in zoology class. Was this a joke? Had she, like Ophelia, been sent off to a nunnery? Finally, confronted with her tearful face, Dick explains harshly: "A female contraceptive, a plug" (59). And he waves her off to consult her friend Kay, a married woman, about finding a lady doctor. And not just any doctor. McCarthy sends her heroine to the source, to the most famous distributor of pessaries in the 1930s, the Margaret Sanger Bureau.
    In Woman of Valor, her biography of Margaret Sanger, Ellen Chesler claims that McCarthy's novel offers an accurate portrait of Doctor Harriet Stone, the legendary woman doctor who presided over the Margaret Sanger Bureau. "Stone is perhaps best captured," Chesler writes, "in a transparently autobiographical scene from The Group, Mary McCarthy's comic and yet poignant novel about the rites of passage of American college women in the 1930s" (1992: 88-89). Whether or not Dottie's pessary is really Mary McCarthy's matters less, I think, to the history of contraception, and hence to the history of privacy, than the fact of its existence in print. Though I doubt very much that this is how McCarthy would wish to be remembered, as speaking, in Lessing's terms, "for other people," the scene remains, we might say, one for the books.(FN12) Educating us through Dottie, McCarthy furnishes a description of the "new device" recommended by the birth-control bureau; discovered by Margaret Sanger, it combined "the maximum of protection with the minimum of inconvenience ... a rubber cap mounted on a coiled spring, came in a range of sizes and would be tried out ... for fit, wearing comfort, and so on, in the same way that various lenses were tried out for the eyes" (1989: 64). The description is straightforward and didactic, including the use of Latin terminology (labia majora) for high seriousness, that seems intended, the Newsweek reviewer complains, "for burial in a time capsule against the day when sex is a forgotten activity" ("Review," 1963a: 80). When we open the time capsule almost half a century later, there is an unexpected pay off.
    In her quest to obtain reproductive freedom for American citizens, Margaret Sanger arranged for a shipment of contraceptive supplies to be sent from Japan to Harriet Stone "so as to stage a clear case on medical exemption"; this was done in conjunction with "recent judicial reconstruction of the Comstock provisions on obscene literature and interstate transport of contraception" (Chesler, 1992: 372). A case on the part of Dr. Stone was "filed in the United States District Court for the Southern District in Manhattan" in 1933 and it was called, wonderfully, United States v. One Package Containing 120 more or less, Rubber Pessaries to Prevent Conception. It would have been hard to miss the publicity the case generated. In 1936, while McCarthy was first living in New York, Augustus Hand ruled that "contraception had become a safe and essential element of modern medical practice" (373). Sanger was saluted in the pages of Time magazine and Life featured her in a "four-page photo spread" (374). "But now mothers can be told!" she triumphed in the pages of The New Republic (1938: 324).
    Critics often admired the accuracy of The Group's depictions of thirties culture. One Package provides an interesting example of its documentation. The landmark case is not named but it is referred to clearly in the novel. Kay, the married woman who is supposed to be helping Dottie, worries about the risk her single friend is running by using her real name in making an appointment, "not even 'Mrs.'" (72). By contrast, the fifties with the fake wedding band seem a significant step backward in the progress narrative. Sleeping with a man is one thing, Kay thought; getting the equipment is another. "The things you did in private were your own business, but this was practically public!" (72). The danger in Kay's mind has to do with the risk of exposure. Someone might see you "from a passing bus or a taxi" (73). But worse than that, "Why, the office might be raided and the doctor's records impounded and published in the papers ...." (73). Having your real name in the paper would "kill Dottie's family" (73). Dottie took a calmer view, having "insisted that birth control was perfectly legal and above board, thanks to a court decision that allowed doctors to prescribe contraceptives for the prevention or cure of disease" (73). That is an accurate description of One Package. The memory of raids had attached themselves to the popular imagination, and McCarthy's invocation of them gives the measure of the anxiety entailed in the very question of publicly acknowledged sexuality for women, and especially, in the case of contraception, single women, as well as the feminist struggle that Sanger's crusade had joined: "you could almost see Mrs. Panhkurst in [Dottie's] resolute eye" (73). In telling this story in 1954 about contraception in fiction, McCarthy makes public, literally broadcasts, however mockingly, the same news about so-called women's secrets that the women confessional poets like Sexton and Plath would soon be putting into poetry.
    One Package or no, Mailer, ever the self-appointed arbiter of ethics and aesthetics, is predictably dissatisfied with McCarthy's female realism. McCarthy has not written the novel of social vision Mailer deems she should and could have written. The great detester of contraception, as he was to make clear in An American Dream, Mailer probably did not appreciate the detail involved in the high point of the scene when the pessary, slippery with contraceptive jelly, jumps out of her heroine's grasp and springs across the room. It is apropos of this comical moment that Elizabeth Hardwick comments with a certain glee: "This story, memorable to put it mildly, could not have been written by anyone except Mary McCarthy" (1962: 37). But Mailer, deploring the invasion of language by the feminine, is revolted by the leakage of female excess into punctuation itself: "the Eggs Benedict and the dress with the white fichu, the pessary and the whatnot, sit on the line of the narrative like commas and periods, semicolons, italics, and accents."(FN13) The pessary was hard to take. Reminiscing in 1975, Bellow complained that Mary McCarthy's The Group had "too many pessaries" (Atlas, 2000: 438)--though he himself had a diaphragm doing double duty, as it were, in Herzog, which he published in 1964, the year following The Group and which Roth recalled recently in an admiring essay in The New Yorker.(FN14)
    In a Newsweek feature when the book came out, McCarthy argued glamorously over Campari and soda that the book was really about "technology and the mirage of political and social progress which misled the young in the 1930s." The idea of the book is to show the failure of those notions, "'to see the tails of these ideas disappearing down these little ratholes'" ("Review," 1963a: 81). But the magazine also reports the "shock of intellectual leaders at the book's heavy cargo of womanish inconsequence" and predicts disapproval from the "highbrows" (81). McCarthy was being condemned for having written the novel for which she had received a prestigious grant.

"THE PESSARY AND THE WHATNOT"
    For Mailer, McCarthy had turned out the "best novel the editors of women's magazines ever conceived in their secret ambitions" (1963: 3).(FN15) More secrets, perhaps more dangerous because a writing ambition that made money and conferred celebrity. Yes, the readers of The Group read women's magazines; they also bought books and made the novel a bestseller. But the association with the category of women's magazines was the official kiss of death on the level of high culture pronunciamento. Another woman writer, one who was fatally and famously to lock horns with McCarthy in a fractious lawsuit, Lillian Hellman, adopted the Mailer position: "I think Miss McCarthy is often brilliant and sometimes even sound. But, in fiction, she is a lady writer, a lady magazine writer" (Kiernan, 2000: 540). In other words, when the details of the private female world are revealed in literary texts, their authors are suddenly marked as belonging to an inferior realm of literary production. Nevertheless, whatever highbrows might have felt about McCarthy's representation of 1930s political culture, in 1963 there was a vast audience of women readers with a different set of experiences and expectations ready for their point of view to be brought into public.(FN16)
    At the end of the 1950s, Philip Roth contributed to the literary posterity of the McCarthy scandal by making it the key to the shape of his novella. When his heroine goes off to school she leaves her diaphragm behind, and when her mother finds it in one of her drawers, the secret of virginity lost is out and Brenda, not wanting to displease her parents, ends the relationship. But Roth had problems of his own with responses to the circulation in fiction of this contraceptive technology. Although the story finally appeared in Partisan Review, it had been rejected by The New Yorker because of the prominent role played by the offending object, even though the magazine was eager to have Roth's work in its pages. A magazine that could not deal with the words "balding," "pimples," and "dandruff," was not going to be able to handle diaphragm (Yagoda, 2000: 296). Was it the word or the thing? Both.(FN17)
    Let us return to Doris Lessing's conversation with Kate Millett in the 1970s, at the height of second-wave feminism, on the place of these discomfiting matters in fiction and their effect on readers. Lessing, we saw, generalized as a writer about what is private and public when she observed that, by revealing what is most private, silent embarrassment is transformed into information; the ineffable of the personal becomes public document; autobiography, fiction; and readers find their private experience figured in your revelation.(FN18) But Millett specifically drew her examples from women's lives and not from universal experience--even if using a tampon when you have your period and picking up a man on the train are common occurrences. They are common to women, and women's points of view on them have not been part of the record of intimate experience as rendered in literature. That is exactly how McCarthy justified the originality of her project in writing The Group: giving voice to history lived in the feminine.
    As One Package clearly shows, contraception and sexual autonomy are highly regulated rights in the organization of private life in America. As a result, and largely because of the historical linkage of contraception and obscenity, One Package did not go unchallenged. This is because beyond the power of that association, the resistance to sexual and reproductive autonomy is particularly freighted for women in this country--especially unmarried women; the resistance to "decisional autonomy" for women in matters of contraception and then abortion is relentless, not to say unending.(FN19) Even after Griswold v. Connecticut (1965) granted married couples the constitutional right to use birth control in their own home, it took Eisenstadt v. Baird in 1972 for the "right of contraceptive practice" to be extended "to the unmarried" (Chesler, 1992: 376). The latest installment to this saga turns up in the radical transformation of these experiences posed by a drug that recently made headlines; a drug that can--through new technology--in fact redefine the meaning both of contraception and abortion and has been described by its creator as "the moral property of women" (Pollitt, 2000: 9). With this drug, RU-486, abortion "would," Katha Pollitt writes, "finally become what Roe v. Wade said it should be: a private medical matter between a woman and her doctor" (9; emphasis added). Unfortunately, if the FDA has its way, access to the drug will be limited to doctors trained in performing abortions(FN20)--in other words, this so-called private matter will remain subject to government control, and private moral property, a publicly legislated one.(FN21) Eventually, one television commentator observed, women could have abortions "in the privacy of their home" (Borger, 2000). A headline in The New York Times used the same language: "Woman Will Be Able To End Early Pregnancy in Her Own Home" (Kolata, 2000: 1)--the home, perhaps, in which women had the privacy to conceive. Given all the restrictions on taking the drug, however, the likelihood of women gaining complete control of their privacy and their bodies any time soon is slim--and far from legislative reality. Still, the word privacy is the word that women cling to when they want to express their freedom to choose.(FN22)
    And so we arrive at yet another paradox in the privacy dramas that attend, even structure women's lives: women's privacy often needs to be both protected and exposed. The issue is: by whom and when--and whose interests are served? It is, perhaps, the founding dilemma of privacy in women's lives that women sometimes need to have the details of their intimacy revealed to protect themselves against a much wider injustice: the ignorance and vulnerability produced by silence. As we have also seen, however, when intimate objects enter the precincts of literary discourse, we are quickly reminded that privacy historically has depended on old hierarchies of sexual difference; and that exposure, pace Foucault, incites calls for repression. The Group--a novel with no internal "male consciousness" to authorize its representations--was seen by many commentators to have gone too far in its archaeologies of the feminine.
    Since privacy is often represented as a space or zone protected by the law, written or unwritten, its infringement is also often coded as a boundary violation, a boundary that is cast as a personal preference about what or how much you would like to know about certain subjects. As Katharine White, her former editor at The New Yorker remarked, for her there were "several places" in The Group where McCarthy crossed that "thin line of taste 'between candor and shame'"; and like Mailer, she could have done with less information--finding the novel "too much a social document"--and wanting more about the character of the girls.(FN23) The stakes of this information are very high, however, and more than a matter of taste or aesthetic choice or novelistic technique: they have everything to do with politics.
    With her representation of the diaphragm, McCarthy, we might say, did for women in the 1950s what Bob Dole did for men in the 1990s when he promoted Viagra on television. Although Viagra is not, strictly speaking, a part of contraceptive technology, its fate has been linked with contraception through the labyrinthine logic of health care plans. A recent article in the The New York Times reported a suit brought in Seattle under Title VII of the Civil Rights Act for "sex discrimination in health coverage." "'The defendants may say that they're not excluding contraception for women only,' New York University law professor Sylvia Law argued; 'they're excluding contraception for everyone, and it just happens that the only prescription contraceptives available in this country are for women'" (Levin, 2000: A27). But--and here is the connection--"many employers who do not pay for contraception moved quickly to provide coverage for Viagra" at nearly $10 a pill.(FN24)
    Because McCarthy persisted in seeing feminism as a question of "envy and self-pity" on the part of women, the movement generated by these questions of inequity bored her; she admitted in 1985 that she rather enjoyed belonging to a very small group of "exceptional women" in her generation who had benefited from the "fact that women in general were rather looked down on."(FN25) But it is a nice irony that if an argument against the injustices of what we today call gender asymmetry would have irritated her by its very language, the suit brought in her hometown borrows in spirit from her very own fictions of female entitlement--the "outrageous thing," as she told an interviewer "about the Dottie-going-to-the-doctor chapter," that she had "betrayed feminine secrets."(FN26)
    Even in post-Pill female culture, the memory of this intimate betrayal lingers like the recycled melody of another era. McCarthy's "outrageous thing" has inspired more than one woman writer in subsequent generations. In her review of Writing Dangerously, Carol Brightman's biography of McCarthy, novelist Marianne Wiggins describes her precursors this way: "Two she-condors dominated my pass into literary adulthood in the mid-1960s--one of them was Lillian Hellman, the other Mary McCarthy. McCarthy's The Group hit the bestseller lists soon after it was published in August 1963 and remained on them for nearly two years; by the time I was composing my college application essay to Vassar in the fall of 1964, I had read the bits about the famous pessary several times and was lubricating my prose style (I thought) with plenty of killing derivatives from McCarthy's tube (if not her pen)" (1992: 569). Is a pen a metaphorical pessary?(FN27)
    Roth's citation of McCarthy's pessary outing gets recirculated in Gish Jen's novel Mona in the Promised Land, the story of a Chinese girl from an immigrant family who comes of age in Scarsdale, post-'68. When Callie, the heroine's older sister, comes home for a visit during her freshman year at Harvard, the two girls and their mother sit up at night and talk about sex. Callie explains that "she learned to spell diaphragm from reading Goodbye, Columbus. A serious book, she maintains, although under questioning she admits that she originally only read it because the movie version was being filmed over at the high school. And because it had a diaphragm in it" (Jen, 1997 [1996]: 39). Later in the novel, when Mona is fooling around with her boyfriend, she tells him that she "read a book about it, sort of. Not about how to spell diaphragm. A book with a diaphragm in it" (111). But when Mona and Seth finally proceed to the next stage, it is after a joint visit to the birth-control clinic and a cycle of pills. In the late 1990s, a novel about the social life of girls can revisit the fraught history of contraception and virginity lightly and as a vocabulary problem for the SATs--with a knowing smile.
    McCarthy, New Yorker critic Brendan Gill remarked in a 1983 interview with biographer Carol Gelderman, "was a firebrand ... a pioneer taking big chances, and by so doing, increasing the range of permissible subject matter" (Gelderman: 1988: 252). This also means redefining what constitutes the proper separation of private acts and public chronicle. True, the shock value of certain words and things fluctuates with the times. An object that once required a court case just to get into the mails becomes part of the museum of sexual history for women. What was threatening to decorum in the past becomes a joke in the present, and the violation of taste an intertext of obsolescence good for spelling challenges. Nonetheless, to bring certain kinds of information into print, even as fiction, is ultimately to rework the public/private divide and to redefine national propriety with its attendant unself-consciously universalist claims.(FN28) It is also to suggest that history written from the "feminine sphere"--the so-called private sphere--remains to be told in public scenes.
    What is important, finally, about the destiny of McCarthy's dare is the persistence of the word and its referent for the world of readers--indeed, voters. We want to attend to the things of women's private domains, the overwhelming importance these little objects tend to have, and their always rather sticky implications--literal and metaphorical--because they give us a way to measure women's dominion (or lack of it) over the protection and exposure of our intimate lives.

FOOTNOTES
1 A footnote to the story's title announces the novel--"A chapter from a novel, The Group, which takes place in the '30s"--that McCarthy subsequently set aside for several years (1954: 34).
2 The comparison in question--"the story does for contraception what Moby Dick did for whaling" appears in an earlier magazine interview by Brock Brower (McCarthy, 1962: 64). But perhaps credit should go to Elizabeth Hardwick, who in her essay "Mary McCarthy," was slightly less facetious. "There is an air of imparting information--like whaling in Melville or, more accurately, the examination of dope addiction in Gelber's play, The Connection" (1962: 37).
3 "Under the leadership of Margaret Sanger, birth control had gained a significant amount of liberal support during the twenties and thirties, with roots in feminism and socialism" (May, 1988: 149). But as May shows, birth-control devices were promoted to strengthen family life--family planning--not to support female sexual autonomy or the pleasure and freedom of single women (150).
4 The issue of virginity or premarital sex per se never comes up as an issue in Roth's novella; for Brenda the stumbling block is "lying to some doctor" about being married (82). The role played by McCarthy's fiction as a primer for illicit sex recurs later in the story when Brenda registers for the two of them at a Boston hotel as "Mr. and Mrs. Neil Klugman." This time the joke is reversed. Neil asks Brenda whether she's done this before; she answers: "'I read Mary McCarthy'" (125). Reading novels from the 1950s unsettles the post-sixties view of the period as sexually contained and wedded, so to speak, to female chastity.
5 On the "horizon of expectations," see Hans Robert Jauss, Toward an Aesthetic of Reception. As Peter Brooks puts it in Body Work, revisiting Roe and Griswold in the context of the rise of the novel: "In the examples I have cited from Rousseau and other eighteenth-century novelists, 'privacies' were becoming 'sacred,' although they could be known as sacred, come to consciousness as inviolable rights, only by publication of images of their violation, including writing constituted as an invasion of privacy" (51). It is in this sense that we can understand privacy as performative: we know privacy by the acts that unveil or reveal its sheltered zones.
6 In emphasizing the responses to the perceived infringement of privacies, I am underscoring the performative and relational aspects of privacy--what happens when a line is crossed, especially by women writers. The response at this point in history is all the more surprising, given the obscenity trials provoked and threatened by the publication of books like Lolita, Naked Lunch, and most famously, Lady Chatterley's Lover. Perhaps we need to focus not only on the gendered aspect of bodies and objects, but also the sex of the writers who put these representations before the public--who has permission to expose what. Deborah Nelson argues, following Jennifer Nedelsky's "Reconceiving Autonomy: Sources, Thoughts, and Possibilities," that "privacy is always a relational right, ... although permission maybe granted in ways so invisible or so deeply accustomed that we fail to see them" (Nelson, 1999: 306, n. 31).
    In "Privacy, Privation, Perversity: Toward New Representations of the Personal," Debra Morris emphasizes the importance of the relational as a fundamental condition for justice and what she calls "rational political judgment" (328).
7 Here Millett is slightly wrong in her memory of The Golden Notebook: "And the blood is running down her legs while she struggles with toilet paper. Kleenex. That sort of thing. In a book! Happens every month of adult life to half the population of the globe and no one had ever mentioned it in a book" (357). Menstruation, of course, was notoriously described in Molly Bloom's monologue (thanks perhaps to Nora Joyce); what is new literarily in Lessing's novel is the combination of the tampon--the technology--and the problem of dealing with it in a public place, with men are in the area. Lessing writes: "I examine myself and change the tampon and pour jug after jug of warm water between my thighs to defeat the sour musty smell. Then I scent my thighs and forearms, and remind myself to come down in an hour or two...." A moment later a male colleague remarks: "'You smell lovely, Anna,' and at once I feel at ease and able to manage everything" (1994 [1962]: 322). What is remarkable is yes, the object, but also, as generations of women readers have attested, the entire psychological surround, the anxiety about smell. What is even more interesting is a meditation that comes slightly carlier in this section where Anna worries about how to write about having her period. The fact is "of no particular importance," but when she writes "the word 'blood,' it will be giving a wrong emphasis." She then goes on to comment on the "shock" of Joyce's describing "a man in the act of defecating, it was a shock, shocking. Though it was his intention to rob words of their power to shock" (318). Anna recalls a review in which "a man said he would be revolted by the description of a woman defecating" and concludes that the issue is "not basically a literary problem at all." The man would be revolted because it ruins his "romantic image" (319). Part of Lessing's accomplishment in this novel is the recording of her resistance to the power of that image to distort accounts of women's experience--which is a literary problem!
8 In her biography of McCarthy, Grumbach refers to this voicing as "ventriloquism": "a narrative device ... apparently so ingenious that it was missed by many critics" (1967: 197).
9 Randall Jarrell's characterization perhaps captures the McCarthy effect best: "torn animals were removed at sunset from that smile" (1986: 65). Granville Hicks put it more blandly in the Saturday Review: "No one argues that she is either a great novelist or a great critic, but she is somehow surrounded by an aura of eminence. She is the highbrows' highbrow, and she gets to be the lowbrows' highbrow, too.... She has built her reputation in part on the ruins of the reputations she has destroyed" (1963: 19). No one, in a word, wants to mess with Mary. So it is not surprising that despite what Hicks himself calls an "ungracious introduction," the review that follows morphs into an enthusiastic account of The Group, which he likens to "social history."
10 "Not since Elizabeth Janeway wrote The Walsh Girls has any lady-book been given such praise by people such as these" (1963: 1). The other Norman--Podhoretz--will chime in with the same tune: "a trivial lady writer's novel" in Doing and Undoings (1964: 93). Mary herself weighed in on being called a "woman novelist" in the Vogue interview: "I don't mind being called a woman novelist. After all, I am one. But I know what you mean. I think it's just a piece of feminism" (1963: 98). Can you be a woman novelist without being deemed a lady writer? That was McCarthy's gamble. In "Our Leading Bitch Intellectual," Beverly Gross argues that Mailer himself made the distinction and refrained from "lady writer," thus paying McCarthy, "a back handed tribute" (1996: 32).
11 McCarthy's sentence provides the example for the second meaning of the literary term envoi, "parting words," thus earning her posterity in Webster's Third New International Directory (1966).
12 But whose side is she on as a novelist when she reports on women? If Lessing takes pleasure in finding herself on a continuum of experience with her readers, McCarthy in her public remarks and interviews deliberately sets herself apart. It is as though as a writer she informs the world about women's experiences, offering in her place a heroine who bears a certain relation to herself. Candor is her best disguise, and the effect of her detachment is ... educational. The Esquire profile recasts the McCarthy gift for scandal as school: "there's been a kind of hidden lesson book in ... her better stories. Here (O Mistress Mary!), here's how a girl takes up with a steel man on a train, ... goes for a 'fitting,' ... decides on an abortion, and finally suffers remorse for all these things, great or small" (1962: 64). The girl's remorse, not the author's, that is--whose trade, precisely, is the giving away of other people's secrets. McCarthy, who will probably remain best known as the author of autobiography, notably, Memories of a Catholic Girlhood, protected herself in fiction through her alter ego, cannily preserving her privacy by flirting in print with characters resembling those from her real life. As readers of her stories and novels, we remain in the dark about her abortions (although in the course of interviews she freely confessed to having had many), her modes of contraception. As Randall Jarrell put it in his thinly veiled portrait of McCarthy in Pictures from an Institution, "Gertrude, unlike many writers, really did have a private life, one that she never wrote a word about" (1986: 190) We can guess and gossip, but with this writer we cannot know for sure.
    In Intellectual Memoirs, the last and posthumously published installment of her autobiography, however, McCarthy, almost 50 years after the event, reveals the name of the man who wore the Brooks Brothers shirt. Or as novelist Marianne Wiggins rudely describes it, challenging McCarthy's confessional ethics: "she 'outs' the married man who was The Man who fucked her on a train in her histoire ý clef .... Not only does she tell us this gent's name, she tells us where he lived and which club he was a member of. For all we know, he's still alive, has a wife, a life, a son, a daughter" (1992: 569). Wiggins touches here on a fundamental issue of literary privacy--one that dates back at least to our exemplary modern autobiographer, Jean-Jacques Rousseau. Taking her distance as a woman writer from her precursor, George Sand self-righteously exclaimed in the preface to her life's story, "Who can forgive him for having confessed Mme de Warens while confessing himself?" (1970, 1:13; my translation). Whether explicit autobiography or autobiographical fiction, the problem remains the same: what do you owe to the other when you confess yourself? What happens to the privacy of the other when you put your stories out into the world? These matters did not seem to concern McCarthy any more than they did Rousseau. As Philippe Lejeune puts the matter: "private life is almost always a co-property" (1986: 55) (with thanks to John Eakin for reminding me of Lejeune's formulation).
    Like the earlier stories and novels, The Group did not go unnoticed. In great part the frisson caused by the work was tied to its apparent confessionality--and its biographical traces. But if that titillated the readership, it is not primarily what captured the critics' attention.
13 Mailer's particular animus against the diaphragm would be expressed explicitly as an impediment to his hero's ultimate pleasure in An American Dream: "'Do you want to now?' but from an instinct I did not question, I said, 'No, I don't want to .... I can't so long as you have that thing in you,' which I never said before, and she shifted, I was out, the shock comparable to banging one's head on a low beam, and then I searched for that corporate rubbery obstruction I detested so much, found it with a finger, pulled it forth, flipped it away from the bed" (1996 [1965]: 121-22).
    In his review of the Kiernan biography, A. O. Scott cites the Mailer diatribe and takes up the question of McCarthy's realism, which leads him to make a hefty counterclaim about McCarthy's ability as a novelist to chronicle social change. Accepting the comparison to Stendhal that Edmund Wilson offered, and one that Mailer pays tribute to by imagining "where society will end if the heroine of The Company She Keeps should encounter Julien Sorel" (1963: 3), Scott puts into the same hopper as "Fabrizio del Dongo in The Charterhouse of Parma stumbling into the Napoleonic wars, Dottie with her pessary, the girl on the train with her safety-pinned knickers" as well as other characters from McCarthy's fiction, in order, it almost seems, to counter Mailer by giving McCarthy credit for producing a "chronicle" of a transformation in the private lives of men and women (2000: 24).
14 I thank Louis Menand for the reference to Bellow on McCarthy in the Atlas biography. Celebrating Saul Bellow's career as a novelist and his "engagement with women," Roth conjures up the object in Herzog. Comparing Bellow's focus on masculine suffering with that of Anna Karenin or Charles Bovary, Roth wonders how far his analogy can really go: "(Not that one easily envisions Karenin, ý la Herzog with Gersbach, handing over to Vronsky Anna's diaphragm.)" (2000: 87). In these matters of taste, it depends on who draws the line. Bellow is quoted in John Leonard's review of the James Atlas biography as saying that reading Nadine Gordimer was "'like gagging on Kotex'" (2000: 11). Again, the object draws the disgust into its orbit.
15 The TLS reviewer saw the wit in McCarthy's implicit genre reference: "Miss McCarthy has hit on the brilliant device of telling most of her story in the style of a woman's magazine romance" ("Review," 1963b: 901). Of course writing for Esquire, a magazine for men, as it described itself, carried the literary stamp of approval. One can wonder to what extent Mailer, whose novelistic ambitions had been frustrated since his first success with The Naked and the Dead, wasn't chafing at McCarthy's staggering success with The Group--despite his negative assessment of her accomplishment.
16 Summarizing the criticism of the novel, which reflected a certain bewilderment with the book's runaway success, Grumbach observes: "But The Group had been born into a new reading world," a world different from the one that had received McCarthy's earlier fiction, "a world already primed for the appearance of any novel that is rumored to have sexy scenes" (1967: 195). The novel, Grumbach asserts, is "profoundly feminine" and "the majority of novel-readers in this country are women, and they are as well the novel-buyers and novel-borrowers; it follows that such a book ... would intrigue a mass audience" (196).
17 In an essay on The New Yorker's history, Louis Menand analyzes the magazine's "distaste for subject matter and vocabulary that were utterly commonplace in virtually every other literary forum" (1990: 30) and its effect on the acceptance of stories and articles. He cites editor William Shawn's editorial solution to a theater review by Kenneth Tynan that used the word "pissoir": renaming it "a circular curbside construction" (29). Commenting with characteristic finesse on the problem posed by the intimate object in Roth's story, Menand casts the dilemma this way: "'Goodbye, Columbus' is reported to have been turned down because the story involves an item Shawn considered unprintable, a diaphragm. ('A circular cervical construction' was evidently not proposed as a substitute" (30). I am grateful to Louis Menand for filling me in on Roth's publishing experience with Goodbye, Columbus.
18 As Elizabeth Hardwick observes in the essay on her friend's technique, without reference to gender: "Accuracy, unusual situations documented with extreme care, mean for the reader a special kind of recognition" (1962: 37).
19 Jean Cohen, quoted in Morris (2000: 339). This notion emerges from Planned Parenthood v. Casey (1992), which reaffirms a woman's right to choose: the right "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" (Morris, 2000: 336).
20 This is a double restriction since the number of doctors performing abortions is decreasing. Faye Ginsburg: "Another hidden element [in the backlash against abortion rights] is the loss of practitioners. We are losing the generation of doctors committed to working in clinics, helping women at incredible personal risk. They're reaching an age at which they can't do it anymore, and medical schools no longer routinely train students in abortion procedures. So the battle's being lost as a war of attrition on the front of medical training. Meanwhile, people aren't mobilized because they feel the battle has been won" (2000: 25).
21 It is important to note, however, that the privacy of this "private matter" is incomplete--as it has been from the start. A woman's privacy--her right to choose--passes willy-nilly through the intervention of the doctor. For a groundbreaking analysis of the way in which the limits of a woman's sexual autonomy are figured in confessional poetry, and the implications of these limitations for an understanding of postwar privacy, see Nelson (1999).
22 In a report from Paris, Suzanne Daley quotes a woman on the matter of drug-induced abortion. It felt "more natural," she said; "it felt more private, too" Daley (2000).
23 White wrote this in a letter to McCarthy, which McCarthy thanked her for. Quoted in Kiernan (2000: 524). Hardwick also wrote, trying to make up for the parody and commenting on the information: "I don't always know to whom the information is addressed. Is it the writer informing the reader, or is it the writer informing the girls, or the girls speaking to the reader" (Kiernan, 524). Hardwick casts her questions as "technical" ones for a fiction writer, but she clearly remains ambivalent about whether the information should be put out there in the first place--an ambivalence that gets acted out in her parody, "The Gang" (1963). The reaction to and reception of McCarthy's fiction show that when "women's secrets" are exposed, they shock men and women--though not necessarily alike, and not for the same reasons. Sometimes, they even agree.
24 No restrictions are placed on the doctors who prescribe Viagra. Pollitt comments that if restrictions comparable to those governing Mifepristone (RU-486) were required for dispensing Viagra, only cardiologists could prescribe the drug (2000).
25 Kiernan (710). In this interview McCarthy distinguishes between "feminism on economic grounds," with which she is in sympathy, and feminism in the "domestic sphere," which she disdains. Earlier, in the Vogue interview, she had stated her dislike for a feminism she construed as based on "feminine envy, envy of men" (1963: 144).
26 1968 interview (Gelderman, 1988: 253).
27 With apologies to Gilbert and Gubar's famous provocation in their revisionary study of female authorship: "Is a pen a metaphorical penis?" (1979: 3). In an article entitled "The Bright Pack," about what it takes to "be a literary It Girl in New York," two of the writers, Larissa MacFarquar and Katie Roiphe, are said to "like looking back to the Forties and Fifties and wonder whether the writer Mary McCarthy--drinking and smoking, dancing, cavorting, making an ass of herself--had a better time than they do"...(Haskell, 2000: 99). This is a feminine literary genealogy McCarthy might have enjoyed. I thank Lise Esdaile for this reference.
28 What McCarthy's and Lessing's literary interventions show is the degree to which, as Joan Scott remarks, "feminine particularity secures the universality of masculine representation." Since the "abstract rights-bearing individual who came into being as the focus of liberal philosophical debate in the seventeenth and eighteenth century somehow became embodied in male form," it becomes difficult to unsettle that sense of general entitlement through the vicissitudes of female form (1988: 25). What would happen to our ideas about privacy if we imagined the citizen in a woman's body?

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PART V

INVASIONS OF PRIVACY: VIOLATIONS OF BOUNDARIES

INTRODUCTION: INVASIONS OF PRIVACY
    BY GEORGE KATEB
    THE papers in this section all deal with obstacles to defending privacy (whether understood as a constitutional right or not) in the face of threats from new information technologies. The authors are committed to privacy in general, though they may differ about the purposes or the values they think that government or social respect for privacy serves or signifies. In their common commitment to privacy, they are aware that the task of defending privacy these days is made all the more difficult by the fact that the new threats to it are not wholly familiar, and that therefore laws and customs are in the process of uneasy resistance or uneasy accommodation to those threats. At the same time, the authors are not especially nostalgic for the era before the new information technologies existed. The new powers to monitor people and accumulate and disseminate quantities of information about them go along indissolubly with new powers to enhance life. The aim must be to preserve as much privacy as possible while exploiting the benefits of admittedly risky technologies.
    Frederick Schauer wants to fortify informational privacy by questioning the regular subordination of privacy to free speech and press. Perhaps more in his oral presentation than in his paper, Schauer laments the almost pious deference to First Amendment rights because the informational privacy he has uppermost in mind is (following Prosser in Restatement of Torts) "the public disclosure of embarrassing facts about the plaintiff." Schauer usefully guides the reader through legal cases involving public disclosure, whether the privacy claimants are public figures, or private persons who happen to surface publicly because they are involved by chance in some public and newsworthy event. Schauer is especially concerned with the latter category of cases. The tendency of his discussion is to wish that courts would be less obsessed with the claims of free press and more with the claims of people who suffer from involuntary disclosure. There is a strong claim to be private in public, to use a formulation of the privacy scholar Helen Nissenbaum. Schauer would mitigate the predisposition of courts to be so anxious about protecting freedom of the press from erosion that they allow innocent individuals to suffer irremediable damage to their well-being. Schauer is certainly right to see a conflict of rights, at least a conflict between a fundamental constitutional right (free press) and an important moral right with some legal standing in the law of torts (not to be gravely embarrassed by public disclosure). How to resolve the conflict? Obviously a sizable moral price will be paid if courts continue to rank a constitutional right higher than a moral right with legal (but not fundamental constitutional) standing. Yet the anxiety not to erode freedom of the press may properly be given precedence. One benefit of Schauer's paper is that it opens up the question of conflict of rights.
    Schauer may make trouble for himself, however, when in the second part of his paper he develops the idea that privacy is socially constructed. What he means is that what people in one society find an unacceptable assault on privacy may be found perfectly acceptable in another society. (The very notion of privacy may be altogether lacking in some societies.) Privacy is therefore a shifting concept. If he is right, and in some aspects of privacy he is of course right, then he must contend with the view that violations of privacy may look, from an external and detached perspective, much less morally important than violations of a fundamental constitutional right, like freedom of the press, which is recognized in many societies that are quite culturally disparate. "Perhaps," Schauer candidly says, "the right to privacy is more socially contingent and culturally relative than other rights, or has a degree of social contingency and cultural relativity that other rights do not possess." If the social construction hypothesis is pressed very far, the dignity of the concept of privacy must suffer. Why worry too much about a claim that is largely dependent on historical or geographical accident? Only if we are able to consider a claim--here a claim to privacy--as attaching itself to an essential human trait and common human aspiration can we assert that a moral right exists. We can then go on to decide whether that moral right is of such weight as to deserve elevation to a constitutional right. Or, if not to a constitutional right, at least to a legal right that may reasonably require serious consideration, even though a presumed constitutional right appears to stand in its way. The social construction hypothesis goes in the direction of converting all human relationships and transactions into local mores or manners. To be sure, mores and manners are not negligible and are often of tremendous urgency, but they lack sufficient moral weight to figure in a discussion of rights in conflict. In short, the social construction hypothesis sits uneasily with concern for the protection of privacy in general and specifically for keeping embarrassing personal information out of the public domain.
    Jeffrey Rosen's paper is based on his instructive and wide-ranging book, The Unwanted Gaze (2000). Rosen's endeavor is to show how new technologies of recording and disseminating personal information erode privacy and by doing that, erode personhood. He is eloquent in affirming the moral right of every individual to remain unknown or anonymous; and with equal importance not to be judged and penalized on the basis of personal information that is incomplete and taken out of context. The moral right to remain unjudged altogether, except when judgment is necessary to one's own or to some important social purpose, is to be cherished. In Rosen's work we find exploration of practically every value or principle that plays a role in thinking about the fate of privacy in an age of new information technologies. I would just mention a passage in The Unwanted Gaze in which he criticizes the view that a society of transparent people is better than one where people are protected in their privacy. I think that Rosen's sense is that people are entitled to be untransparent, to some degree, even to their intimates. He opposes transparency because its adherents assume that each of us is a simple, easily defined and coherent entity and should be largely predictable or at least regular and reliable. Rosen knows that each of us is and should remain hard to figure out; that judgment of us should be painstaking and made only when necessary; and always done in context and for a contextual and therefore narrow goal. We are not simple or well defined or coherent. We are multiple and hence able to be or become surprisingly different from one context to another. We are perhaps not so much multiple as fluid; and we are not transparent even to ourselves. The protection of informational privacy can be protection of one's secrets. But that is only a small part of the value of privacy. The mystery of each of us, which is not the same as our secrets, should be defended against false knowingness. "Privacy is a form of opacity and opacity has its values" (224).
    Rosen's paper concentrates on the injury to persons that results when "freedom from observability" (following Robert Merton) is seriously infringed. The protection of private secrets or confidences is a main theme. Particularly painful is being exposed in one's individuality--peculiarities, faults, whispered hopes--by a person whom one had trusted. Being judged out of context by the public is always an assault on privacy. Perhaps the worst form of this assault is public disclosure of the most private information about oneself by a relative, friend, or lover. If such betrayal becomes standard, the principal achievements of protected privacy--intimate love and intimate friendship--are doomed. Yet if intimacy is doomed, individual autonomy also suffers: How can I shape my life if I cannot trust others--a select few--with what I deem some of the most precious components of my self, components that should not have to endure being turned into topics of public gossip and that are sullied even when the public presumptuously allows or even forgives them? Some matters are just denatured when discussed by strangers, and public explanation and justification intrude themselves. Rosen offers no legal remedy for betrayal. I suppose there can be only a cultural remedy. But the culture wants and expects betrayal. That appetite contributes to making the defense of privacy hard.

REFERENCES
    Rosen, Jeffrey. The Unwanted Gaze. New York: Random House, 2000.

OUT OF CONTEXT: THE PURPOSES OF PRIVACY
    BY JEFFREY ROSEN
    IN The Unwanted Gaze, I argue that "privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge" (2000:8). In this essay, I would like to consider some objections to the argument.
    The book offers the example of my friend Lawrence Lessig. In 1997, Judge Thomas Penfield Jackson chose Lessig to advise him as a special master in overseeing the antitrust dispute between the government and Microsoft. When Microsoft challenged Lessig's appointment, Netscape officials turned over to the Justice Department an email Lessig had written to an acquaintance at Netscape in which he joked that he had "sold my soul" by downloading Microsoft's Internet Explorer. The Justice Department, in turn, gave Lessig's email to Microsoft, which claimed he was biased and demanded his resignation.
    In fact, Lessig's email had been quoted out of context. As the full text of the email makes clear, Lessig had downloaded Microsoft's Internet Explorer in order to enter a contest to win an Apple PowerBook. After installing the Explorer software, he discovered that his Netscape bookmarks had been erased. In a moment of frustration, he fired off the email to the Netscape acquaintance, whom he had met at a cyberspace conference, describing what had happened and quoting a Jill Sobule song that had been playing on his car stereo: "Sold my soul, and nothing happened." And although a court ultimately required Lessig to step down as special master for technical reasons that had nothing to do with his misinterpreted email, he discovered that strangers were left with the erroneous impression that the email "proved" he was biased and forced him to resign. The experience taught Lessig that, in a world in which most electronic footsteps are recorded and all records can be instantly retrieved, it is very easy for sentiments to be taken out of their original context by people who want to do you harm.
    "The thing I felt most about the Microsoft case was not the actual invasion (as I said, I didn't consider it an invasion)," Lessig emailed me after the ordeal. "What I hated most was that the issue was just not important enough for people to understand enough to understand the truth. It deserved 1 second of the nation's attention, but to understand it would have required at least a minute's consideration. But I didn't get, and didn't deserve, a minute's consideration. Thus, for most, the truth was lost" (Rosen, 2000: 56). Lessig felt ill-treated, in short, not because he wasn't able to explain himself, but because, in a world of short attention spans, he was never given the chance.

MISJUDGED IN PUBLIC
    I would like to explore with you some challenges to my thesis. In a generous response to the book at a recent symposium on The Unwanted Gaze, held at the Georgetown Law School in September 2000, Larry Lessig doubted that the problem of misjudgment is distinctively a problem of privacy. He argued that, in world of short attention spans, public or private information can be misinterpreted or judged out of context. He gave the example of Justice Antonin Scalia--who opposes the televising of Supreme Court arguments because he fears that snippets from the tapes will be excerpted on the evening news. More information will lead to less understanding. If Scalia could ensure arguments would be broadcast in their entirety, he would abandon his opposition. In the meantime, Lessig suggests, Scalia has designed an architectural solution to the attention span problem: forcing people to sit in a marble palace and forbidden by marshals from leaving if they want to watch oral arguments. Privacy, Lessig suggests, is a remedy for a more general failure of the information market, but he suggests that there are other remedies, such as architecture or social norms (Lessig, 2001).
    In another response at Georgetown, Robert Post insisted that the problem of misrepresentation or incomplete understanding "should not be understood as a problem of privacy" at all, because people can be misrepresented or judged out of context on the basis of public or private information. He gives the example of the football player who is remembered for making a single boneheaded play, or the author who is misrepresented by a bad review of a good book. Post says there is no reason to accept the propositions that "it is particularly important to individuals to resist misjudgments based upon private information" or that "it is particularly hurtful to individuals to be misjudged upon private information" (Post, 2001).
    I would like to begin by arguing that the problem of being judged out of context is distinctively a problem of privacy. In particular, I want to argue, in response to Post, that when private information is taken out of context, the social judgments that result are more damaging to the individual, and more likely to lead to cognitive errors on the part of society, than the social judgments that result when public information is taken out of context. When private information is taken out context, the only way to put the information in a broader context is to reveal more private information, which only increases the risk of misinterpretation since certain kinds of private information can only be understood in a context of intimacy. Certain kinds of private information should only be exposed under conditions of trust, which means that even if the revelation of more private information led to more understanding, it would nevertheless compound the injury of the initial exposure.
    This injury, I want to argue, is an offense against autonomy as well as dignity--against the self-defined I as well as the socially defined me. The autonomy that the backstage area protects is not merely freedom from totalizing forms of state scrutiny but also from overly intrusive forms of social scrutiny. And respecting the privacy of the backstage spares us from the burden of justifying differences that no one in a pluralistic society should be forced to subject to communal inspection and debate.
    Post says there is no reason to accept the propositions that "it is particularly important to individuals to resist misjudgments based upon private information" or that "it is particularly hurtful to individuals to be misjudged upon private information" (Post, 2001). Let me defend both propositions by thinking, first of all, about misrepresentations on the basis of public information that is taken out of context. This is Post's football player, whom everyone remembers for making a single boncheaded play; or Post's author, who receives an unfair review of a deserving book. It is true, as Post says, that "misrepresentation in the public eye is independently distressing whenever it occurs, regardless of whether it is caused by the revelation of 'private' facts." But if I am a football player who makes a boneheaded play, I can improve my image by playing better next time. If I am an author who gets a bad review, I can point to a better one. If I am a president who gets sick at a state dinner, I can have a gulf war. Of course, if I am misjudged on the basis of public information, I might also choose to correct the misimpression by revealing private facts: the football player might hold a press conference explaining that his wife had recently been diagnosed with scurvy, just as Lawrence Lessig put his email in context by revealing his music preferences. But misjudgment on the basis of private information requires the involuntary disclosure of more private information, while misjudgment on the basis of public information is more easily countered by behaving in accordance with my public role.
    My success in this rehabilitative effort will depend on my ability to attract the public's continuing attention. In a world of short attention spans, I may be misdefined so vividly by a single, memorable public performance that I will not get another opportunity to correct the misjudgments. (This is a version of the devil's horn effect--bad thoughts driving out good.) But when the misjudgment is based on public information, the problem of the information market results exclusively from Lessig's attention span problem, and more famous people will generally have more success overcoming it than those who have only 15 minutes in the sun.

MAKING THE PRIVATE PUBLIC
    Now let's think about misrepresentation on the basis of private information that has been taken out of context. In this situation, both the injury and the remedy look very different. Despite Post's claim to the contrary, misjudgment on the basis of private information is more likely to distort the information market, and to damage the individual concerned, than misjudgment on the basis of public information. In the former case, the cure is worse than the disease, and the misjudgment can only be corrected by the revelation of more private information, which leads to further misunderstanding and further harm to dignity and autonomy.
    Consider the case of Lessig's email. Lessig said he didn't consider the publication of the email itself to be especially invasive, but to put his joke in context he--and I--had to reveal the fact that he had been listening to the singer Jill Sobule. But the revelation of this contextual backstage information distorted the information market in new ways. Readers of this symposium now know that Lessig was not biased against Microsoft, but they think of him as the kind of person who listens to Jill Sobule. He is not just that kind of person, however: he also has a passion for Gregorian chant. And now that I have revealed that my friend Lessig likes to listen to Gregorian chant, perhaps I have misrepresented him further: after all, he isn't just a Jill Sobule person and a plainsong person. The point is not that Lessig's music preferences themselves are in any way embarrassing; the point is that once the backstage curtain is lifted, Lessig and those who know him can only put the information in context by revealing even more private information.
    But the world isn't entitled to know about Lessig's music preferences, not merely because the world has no time to understand Lessig in all his complicated and wondrous dimensions--this is the attention span problem--but because Lessig should not have to justify his music preferences to the world. Knowledge--even if it is not true knowledge--must be earned by the slow, reciprocal sharing of personal information, which can lead to greater intimacy, understanding, and trust. This is the process that is short-circuited when private information is taken out of context. To understand Lessig's joke properly required more attention than the public was able to give, and more intimacy than the public was entitled to demand. In this sense, the problem of being misjudged on the basis of private information is an attention span problem, but it is not solely an attention span problem.
    Filtered or unfiltered, certain private information can be understood only in a context of intimacy. Even if you had full access to my DoubleClick logs, containing granular details of everything that I had read or downloaded over the past year, you shouldn't, wouldn't, understand me in context. Overwhelmed by information, you would eventually change the channel or click to a more interesting website.
    It would be possible, of course, to devise an architectural solution to this manifestation of the attention span problem, just as Lessig suggests that Justice Scalia has designed an architectural solution to the attention span problem at the Supreme Court. The Supreme Court allows members of the press to watch oral arguments only if they agree to sit through the arguments from beginning to end, on pain of being physically restrained by armed federal marshals. It would be technologically simple, similarly, to set up a trusted system that could restrict access to my DoubleClick logs to those who agree to spend eight hours a day reading them from beginning to end, and would cut off access for those who breached the agreement.
    But it would be outrageous for you to demand a trusted system that would allow you to read my DoubleClick logs from beginning to end because you have not taken the time to earn my trust. The public has a right to try to understand the oral arguments at the Supreme Court, but it has no right to presume to understand everything that I have ever read, browsed, or downloaded. There are certain aspects of my life that I should not have to justify to strangers or to the state.
    When intimate information is taken out of context and exposed to strangers, therefore, we experience an injury to dignity independent from the problem of being misunderstood. Note that it is the forced disclosure of the private information, rather than the inherently private character of the information itself, that triggers the injury. We can imagine situations in which people voluntarily divulge private information because they think they will be better understood. Before Lessig's email was exposed, he had been defined in newspapers as the brilliant law clerk who convinced the Supreme Court to move from mainframe to networked computers. On Larry King, he might have chosen to humanize this techie caricature by revealing his weakness for Jill Sobule and Gregorian chant. Similarly, to rebut the fact that he appears wooden in public, Al Gore ostentatiously kissed his wife and talked lustily about their mutual passion. Some degree of slippage between public and private information is inherent in the public sphere--unless we insist implausibly that people can only be defined in the thinnest sense by their public roles--and when private information is voluntarily revealed, we do not consider this an invasion of privacy.
    By privacy, then, I mean the ability to exercise control over personal information, and by personal information, I mean information over which I reasonably expect to exercise control. The legitimacy of my expectations might vary in different contexts. If I am a suburban high school student, I may prefer that my classmates not know that I like to download the music of Richard Wagner. If the school monitored my Internet browsing at home and turned the logs over to the school paper, I could justifiably object that I had been misunderstood--because of the attention span problem--and victimized by an indignity--because of the breach of my reasonable expectations that my Internet browsing was private. But if one of my classmates saw me waiting on line at the Metropolitan Opera and told the world I was a Wagnerite, there would be embarrassment but not injury to privacy and dignity: I was, after all, caught in plain view. Rather than trying to identify a category of personal information that is inherently private, such as music preferences or email to friends, it makes more sense to focus on the question of control. It is the involuntary wrenching out of context of personal information that itself constitutes an offense against privacy and causes the related injuries I have described--against understanding, dignity, and autonomy.

WHAT YOU SHOULD KNOW ABOUT ME
    Post suggests that the cognitive harm that results from misrepresentation is generic, and that to the degree I am forced to reveal more private information to correct the misrepresentation that results from being judged out of context, the injury that results is exclusively a problem of dignity rather than autonomy. But as I argued in The Unwanted Gaze, there are clear offenses against autonomy as well. Privacy conceived as a form of dignity, as Post suggests, focuses on the "social forms of respect that we owe each other as members of a common community"; while privacy as autonomy concerns the individual's ability to control the bounds of societal regulation.
    Consider the exposure of information about marital infidelity. Unlike the Gores, who offered telegenic details of their passion to rebut the impression that the vice president was passionless, the Clintons were forced to justify the integrity of their marriage against their will. To rebut rumors that they were angry at each other, the president and first lady had to have themselves photographed dancing on a beach. To rebut popular sentiment that the appropriate response to adultery is divorce, they were forced to enact a degrading atonement ceremony in which Mrs. Clinton first expressed anger at her husband and then reluctantly allowed herself to be won back, in the interest of standing by her man. Yet these banal rituals of atonement and redemption may have contributed to less, rather than more, understanding of the reality of the Clinton's marriage, which, like many marriages, may be too complex to be understood outside a context of intimacy. For all we know, Mrs. Clinton may love her husband blindly; perhaps she was not as angry at him as the public thought she should have been. Respecting the privacy of the Clinton's marriage would have protected the public from misunderstanding, because the Clinton's marriage is too complicated to be understood by strangers. But it also would have protected the Clintons from having to justify to strangers aspects of their life that no one should be forced to submit to public debate.
    Respecting the privacy of the backstage, therefore, spares individuals from pressure to justify their differences and allows them to arrange their lives in a way that differs from social expectations. Imagine a couple that decides to tolerate extramarital affairs, as the Clintons appear to have done. Shielded by privacy, they can sustain a marriage in the face of adultery. But once the adultery is made a subject of public discussion, the couple will face overwhelming social pressure to divorce, because of the conventional view that divorce is the appropriate response to adultery. In many cases they may succumb to this pressure, even though both would prefer to remain together. The privacy that protects individuals from being judged out of context, in short, does not merely protect individuals from being misunderstood; it allows them to structure their most intimate relations in ways that differ from social norms.
    Post insists that offenses against autonomy are generally limited to the relationship between the individual and the state. But privacy as autonomy is not always conceived so narrowly. Jeffrey Reiman described the notion of privacy as autonomy as "conferring title to one's existence" (Reiman, 1982: 310). By limiting society's access to an individual, Reiman concludes, privacy allows individuals to claim ownership of their thoughts and actions. This conception of privacy seems to me implicated in pervasive surveillance on the Internet. Surveillance by faceless websites can hardly be conceived as a breach against dignity, since privacy as dignity presupposes some kind of relationship of mutuality. In contrast, pervasive surveillance might inhibit one's thoughts and actions in a way that implicates autonomy, even though it does not involve the state. Currently pervasive surveillance in cyberspace is in its infancy. I find it invasive to be tracked online and to be bombarded with targeted ads when I surf. Others find it less invasive; the norm is contested at present. It is possible to imagine a world in which profiling is so pervasive and so widely accepted that people define their selves in relation to their profiles. In such a world, my social expectations of privacy could be breached when DoubleClick sends me an ad that does not correspond to my virtual profile. So I could file an intrusion on seclusion suit when I am emailed an ad for Memoirs of a Geisha, even though my past buying habits suggest that I am more likely to prefer Tom Clancy. In a world of pervasive surveillance, inaccurate rather than accurate profiling could be considered "highly offensive to a reasonable person." But accurate or inaccurate, pervasive profiling would still represent an offense against autonomy to the extent that fear of exposure of my profile might inhibit me from visiting controversial websites or browsing odd books in a way that differs from social expectations. As Stanley Benn argues, protecting privacy as autonomy is a way of indicating that an autonomous individual is worthy of the respect that allows her to pursue a private enterprise without being observed (Benn, 1982: 243), rather than being objectified like an animal in the zoo.

PRIVACY AS AUTONOMY
    Here, then, are the injuries that result from being observed out of context in spaces that should be considered private. To the extent that the observation results from unreasonable state extraction of intimate personal information--the subpoenas that exposed the emails of Lessig and Lewinsky--it is an offense against liberal freedom in the traditional sense of threatening the boundaries between the individual and the state. To the degree that observation results from the betrayal of a friend or former lover, such as Joyce Maynard's tell-all memoir about J. D. Salinger, it represents a breach of confidence. It also represents an offense against socially constructed norms of dignity, much like the indignity that would result if I went to a nude beach with a colleague and she snapped my photograph without permission. At this particular moment, tell-all memoirs are still rare enough that reasonable people do not expect that their lovers, during tender moments, are scribbling notes for a book proposal. If social norms changed and tell-all memoirs became more common, such a betrayal might no longer represent an offense against dignity, but it would still represent an offense against autonomy. If individuals cannot form relationships of trust without fear that their confidences will be betrayed, the uncertainty about whether or not their most intimate moments are being recorded for future exposure will make intimacy impossible; and without intimacy, there will be no opportunity to develop the autonomous, inner-directed self that defies social expectations rather than conforming to them.
    The dignitary vision presumes a socially embedded self, much like Goffman's gas station mechanics who define themselves in relation to their fellow workers. The backstage in Goffman's world is a place from which outsiders are excluded. It allows me to let down my masks, but behind the masks, there is no "me" independent of "us." Privacy as autonomy, in contrast, presumes a self-actualized individual self, defined by its differences with rather than its similarities to the relevant community. It is this autonomous self that I had in mind when I discussed the need for individuals to be free from observation by society as well as by the state in order to be spared the need to justify their differences. This is the self that cannot develop its individual subjectivity, and cannot form relationships of intimacy without insulation from the gaze of pervasive surveillance. Defining privacy as "freedom from observability," the sociologist Robert Merton argues that privacy is necessary because without it "the pressure to live up to the details of all (and often conflicting) social norms would become literally unbearable; in a complex society, schizophrenic behavior would become the rule rather than the formidable exception it already is" (Merton, 1968: 429). To be observed out of context in private spaces--on the basis of complete or incomplete information--transforms the self from subject to object; and uncertainty about pervasive surveillance makes the development of the subjective self impossible. This objectification is one of the injuries that results from being observed out of context--not merely an offense against dignity, as Post suggests, or a recipe for social misjudgment, as Lessig suggests, but also an intrinsic injury against the autonomous self.

REFERENCES
    Benn, Stanley I. "Privacy, Freedom, and Respect for Persons." Philosophical Dimensions of Privacy: An Anthology. Ed. Ferdinand David Shoeman. Cambridge: Cambridge University Press, 1982.
    Lessig, Lawrence. "Response to The Unwanted Gaze." Georgetown Law Journal (forthcoming, 2001).
    Merton, Robert. Social Theory and Social Structure. New York: Free Press, 1968.
    Post, Robert. "Three Conceptions of Privacy." Georgetown Law Journal (forthcoming, 2001).
    Reiman, Jeffrey R. "Privacy, Intimacy, and Personhood." Philosophical Dimensions of Privacy: An Anthology. Ed. Ferdinand David Shoeman. Cambridge: Cambridge University Press, 1982.
    Rosen, Jeffrey. The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House, 2000.

FREE SPEECH AND THE SOCIAL CONSTRUCTION OF PRIVACY
    BY FREDERICK SCHAUER
    ACCORDING to the conventional wisdom, privacy rights and the rights to freedom of speech and press are frequently and necessarily in conflict with each other. Privacy, it is said, and has been said since Brandeis, is the right to be let alone.(FN1) Freedom of speech and press, however--it is said, and has been said since Holmes--is the right to say and print what one pleases, especially about the wielders of public power.(FN2) Because what people and the press might wish to say about others can and often does conflict with those others' desire not to have things said about them, the conflict between the right to privacy and the rights to freedom of speech and press is both patent and deeply intractable.(FN3)
    But perhaps the conventional wisdom is wrong. Perhaps the right to privacy is more socially contingent, more socially constructed, and more culturally relative than other rights, or has a degree of social contingency and cultural relativity that other rights do not possess. If this is the case, then the social construction of the right to privacy may be based on a wide array of contingent culturally salient understandings. In the United States at least, the First Amendment and freedom of speech rank quite high in the pantheon of these culturally salient understandings, and as a result we in the United States may, because of a dominant First Amendment ideology, define the area of appropriate personal space more narrowly than it may be defined elsewhere. If this is so--and thus far I have only asserted it and not argued for it--then the right to privacy, especially in the United States, may be better understood as being driven by the First Amendment more than being constrained by it. As a legal matter this may make no difference, because the doctrinal consequences are virtually identical. But once we get beyond the narrow domain of legal doctrine, an appreciation of the way in which our very understanding of the idea of privacy is shaped by a free speech ideology will help us to understand the idea of privacy at a deeper level.

JUST ENOUGH LAW
    It may be useful to start with a quick overview of the formal law. Brandeis and Warren's original conception of privacy arose in the context of what has come to be known as misappropriation, the dimension of privacy focusing on the unauthorized use of one's name or likeness for commercial purposes.(FN4) If BMW were to run an advertisement promoting the fact that, "When Michael Johnson is not running the 400 meters, he's driving his BMW," and if BMW were to run this advertisement without the permission of Michael Johnson, Johnson would have a privacy claim for appropriation against BMW, and the claim would be just as strong even if Michael Johnson in fact does drive a BMW. At the heart of the misappropriation claim is the understanding that one's name and likeness have a commercial value, and that taking something of commercial value to Michael Johnson without paying him or obtaining his permission is akin to theft.(FN5)
    Allowing Michael Johnson to recover under these circumstances might strike some as a restriction of freedom of speech. After all, it restricts BMW's to say or to print something, and indeed it restricts BMW's right to say or print something that happens to be true. Nevertheless, the obvious commercial value of a celebrity's name and likeness has successfully blunted most free speech claims against the misappropriation tort, and has done so even when the free speech claimant is the media. In Zacchini v. Scripps-Howard Broadcasting Co. (433 U.S. 562, 1977), a news program had broadcast the entirety of Mr. Zacchini's performance in which he was shot out of a cannon, the law of gravity (considerably less socially constructed than the law of torts) ensuring that the performance was brief and thus easily broadcast in an uncut version. Zacchini claimed misappropriation of something of commercial value, and the media defendant, not surprisingly, claimed a First Amendment right to broadcast what it perceived to be a newsworthy event. In rejecting the First Amendment argument, the Supreme Court relied heavily on the commercial dimension of the plaintiff's claim, holding (perhaps presciently, in light of contemporary issues regarding Napster and others who seek to couch their commercial appropriation of intellectual property in First Amendment terms) that the First Amendment was no defense to a plain misappropriation of Mr. Zacchini's livelihood.(FN6)
    More commonly, invasion of privacy claims are not based on the idea of misappropriation of a name or likeness of commercial value, but rather on another of the Prosser categories now entrenched in the Restatement of Torts (American Law Institute, 1967). Here the tort is based on, to use Dean Prosser's language, "the public disclosure of embarrassing private facts about the plaintiff." In these cases, the invasion of privacy comes about not because of the theft of something of commercial value, but because of what can be thought of as the theft of the plaintiff's right to control the facts about her own life. If the intimate details of my life are disclosed without my consent, so the argument goes, then even the truth of that disclosure cannot undercut the fact that something that is essentially mine to control has been taken from me.
    When the accurate disclosure of facts about individuals does not have as obvious a commercial dimension, the seeming tensions with free speech principles have become more apparent. As a result, the authoritative embodiment of this dimension of the tort of invasion of privacy has been subject to qualifications of both "reasonableness" and "newsworthiness." The consequence of this has been to remove from the ambit of the tort those unwanted disclosures that could subsequently be determined to have been newsworthy, as with, to take two prominent examples, the disclosure of the subsequent life history of someone who had previously been a child prodigy but had for 20 years lived in obscurity (Sidis v. F-R Publishing Corp., 113 F.2d Cir.06 [2d Cir.], cert. denied, 31 U.S. 711, 1940), and the disclosure of the homosexuality of the former marine who thwarted Sara Jane Moore's attempt to assassinate President Gerald Ford (Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040, 201 Cal. Rptr. 1065, 1984).
    The newsworthiness standard is intriguingly broader than even the parallel defamation test. If a person claims to have been libeled by the press, her burden of proof is largely determined by whether she is a public figure or a public official, in which case she must prove something close to intentional falsity with convincing clarity (New York Times v. Sullivan, 376 U.S. 254, 1964). If she is a private individual, however, she need only prove negligent behavior by the press, and need prove it only by the lower standard of preponderance of the evidence (Gertz v. Robert Welch, Inc., 418 U.S. 323, 1974). Yet if the claim is one of invasion of privacy for the unwanted disclosure of embarrassing private facts, the plaintiff's claim is barred by the newsworthiness principle regardless of whether she is a public figure or a private individual. Not only is former President Bill Clinton barred by the newsworthiness principle from legally objecting to the publication of the facts that he cheats on his wife and cheats at golf, but so too, as in Oliver Sipple's child prodigy case, are the claims barred if an otherwise obscure individual becomes involved in an event of newsworthy interest.
    The greater protection of the press against privacy claimants than against defamation claimants likely reflects the fact that the privacy plaintiff is essentially objecting to the publication of accurate information, and is in addition claiming no appropriation of anything of commercial value. When so described, the free speech implications of the issue become more apparent, and indeed the few Supreme Court cases dealing with privacy claims--usually (except for Zacchini) cases in which a victim of a crime seeks to keep his or her name and other facts out of press descriptions of subsequent proceedings against the perpetrator--have progressively narrowed the scope of the privacy rights while they have progressively insisted on the press's First Amendment rights to publish accurate information of public interest, regardless of the consequences to the individuals unwillingly brought into public view.(FN7)

THE JOURNALISTIC CONSTRUCTION OF PRIVACY
    Although it is easy these days to focus on the electronic and cyberspace dimensions of our changing informational lives, it is worthwhile recalling that Justice William Brennan was making his point about all of us being public persons not in the context of changing information technology, but instead in the context of changes in our conception of public physical space, and changes in the actual practices of journalism.(FN8) If, so he supposed, the media was becoming more aggressive in what it reported and what it did not, legal rules aside, then this social fact was relevant in determining the extent to which so-called private individuals should be able to bring lawsuits based on what was said about them when they were involved in public events.
    It is a mistake to think that all or even much of this is attributable to law. Just as vast differences between American and Australian media law over-predict differences between American and Australian media,(FN9) so too is it a mistake to attribute too much of journalistic behavior to legal incentives.(FN10) Although I will return to the law in the following section, here I am concerned instead with the legally unmediated effect of press practices in general. Consider, for example, the widespread historical practice by American political journalists of not publishing information about the sexual and alcohol-related behavior of public officials and public figures. Even though the publication of such information was plainly legally protected, and even though many voters would have used such information in making their voting and other decisions, the rules of the game kept such matters from public view. Starting with Senator Gary Hart in 1988, and probably not finishing with President Clinton, the rules have changed, and public officials no longer have the expectation of privacy with respect to sex-related or alcohol-related behavior that they enjoyed before the late 1980s. Unlike President John F. Kennedy, President George W. Bush will in 2003 have no expectations of privacy, reasonable or otherwise, with respect to sexual behavior with a woman not his wife, regardless of where that behavior occurred.
    This is not the place to discuss whether the change I have just described is for better or for worse.(FN11) The point is only that we have witnessed a substantial change in what a class might reasonably have expected, and that change is largely a consequence of legally uninfluenced change in journalistic behavior. Nor is there any reason to believe that the phenomenon is restricted to public officials and public figures. Insofar as similar changes in journalistic mores and journalistic practices make it more likely that ordinary people will see their pictures in the newspaper, more likely that ordinary people will be approached by a journalist in the immediate aftermath of a tragic accident, and more likely that ordinary people who are the victims (or perpetrators) of crimes will be described in some detail in the press, then it is more likely that people's understanding of what privacy is will be influenced as well. And this is not just a matter of people becoming psychologically or sociologically inured to things that previously would have appalled them, although this factor is also at work. Rather, journalistic practices, by changing people's empirical expectations of the space that is theirs alone to control, have also changed, in what is ultimately a conceptual and not empirical way, their understanding of just what privacy is.(FN12)

CONCLUSION
    Although technological changes and journalistic practices influence our understanding of what privacy is, my main point in this paper is that law does not just stand by as an innocent observer. Especially in a law-soaked society like that of the United States, our social and cultural practices, our institutions, and our conceptual understanding are highly influenced by the law.(FN13) Law creates possibilities, conceptual, institutional, and empirical, and extinguishes them. Law can mold and remold our understanding of the world, and in the United States the First Amendment is a large part of the legal environment. In the United States many people understand incitement to racial hatred as a free speech issue and not as a crime, as an issue of communication and not as an issue of equality, largely because of the way in which the First Amendment has shaped our practices of cultural categorization.(FN14) Similarly, Americans increasingly categorize hostile environment sexual harassment as a free speech issue--although they did not merely a few years ago, largely because of the salience of the First Amendment and its doctrines.(FN15)
    In much the same way, we can see the distinct possibility that the law of privacy informs our conception of what privacy is in ways different from the effect of law in other areas. Our conception of what a horse is remains largely untouched by equine law, and so too with the law pertaining to rivers, food, and chemicals. In all of these cases the law operates on a prelegal world, and although the law may affect that world, it is unlikely to affect our conceptual understanding of what that world is all about. Not so, however, with privacy. Although the concept of privacy does have a moral, social, and philosophical prelegal existence (and in this respect differs from the First Amendment, which does not have a prelegal existence), a great deal of our understanding about the concept of privacy appears influenced by judicial decisions invoking the right to privacy,(FN16) and by legal categories (including the common law tort of invasion of privacy) that inform our language and our practices of categorization. The person in the street might think of elephants and rivers without thinking of the law, but that same person is unlikely to think of privacy without thinking of the right to privacy and invasion of privacy, and the intrusion of these legal terms and legal ideas makes it far less likely that a widespread understanding of the concept of privacy can exist without being created and re-created by the law itself.
    If this is so, our conception of privacy is likely to be as influenced by legal change as it is by changes in technology and changes in journalistic practices. As courts and legislatures identify as privacy violations concerns that would not previously have been so categorized, this will likely inform public understanding of the idea of privacy itself. In a world in which the law is especially important and especially salient, those who have the power to make the law--legislatures, judges, administrative agencies, and, occasionally, authoritative commentators on the work of legislatures, judges, and administrative agencies--are likely to be the ones who have a disproportionate power over our conceptual apparatus in those areas in which the concepts have at best a thin prelegal existence.(FN17) As a largely socially constructed concept, privacy is particularly at the mercy of society's constructors, and in the United States at least, law is one of the most important of our constructors.
    The claims of social construction are important, but cannot be pressed too far. That privacy is socially constructed does not mean that it is not subject to normative critique and evaluation, nor does it mean that privacy is immune to legal and political influence. But once we understand that privacy, arguably unlike justice, utility, and other moral primaries, and certainly unlike rabbits, tulips, and other natural kinds, is largely a function of a socially constructed and socially contingent way of organizing the world, we can understand as well that this social construction is as variable as the forces that create it. And since we now live in a world in which changes in law, changes in journalistic practice, and, most of all, changes in technology are accelerating, we consequently live in a world in which the very forces that have constructed the right to privacy are changing as quickly as anything we know. One approach to all this--an unfortunately common one--is to rush to the barricades and guard against intrusions to our privacy. But, as I hope to have shown here, the barricades themselves are made of the same material as the forces that are alleged to threaten them. As a result, there is something strangely circular and strangely anachronistic about contemporary fears regarding our privacy. Those fears may be real, but insofar as those fears are expressed in terms of social understandings that are themselves changing, the fears may turn out to be as short-lived as the technologies that are thought to threaten them. And insofar as those fears presuppose the independence of privacy concerns from free speech concerns, we may come to discover that the role of free speech as American cultural icon, with influential advocates in both the courts and the press, will turn out to limit the still developing conception of privacy in ways that are too rarely recognized.
    * An earlier version of this paper was presented at the Medill School of Journalism, Northwestern University, on April 6, 2000.

FOOTNOTES
1 Warren and Brandeis (1890): 195, quoting Thomas Cooley, A Treatise on the Law of Torts, 2d ed. (1888): 29.
2 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
3 Especially in the context of this essay, in which I treat public understanding as being as important as formal legal doctrine, the distinctions between freedom of speech, largely the right of individuals and private associations (and increasingly of corporations not themselves in the speech business), and freedom of the press, largely the right of the institutionalized media, are important. Nevertheless, the repetition of "freedoms of speech and press" is infelicitous, and from hereon I will use one or the other to designate both unless the context plainly demands a distinction. For better or for worse, the conflation accurately reflects American First Amendment doctrine, in which the press receives no rights under the Press Clause that all speakers, including the press, get under the Speech Clause. See especially Chief Justice Warren Burger's concurring opinion in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). See also Lange (1975): 77 ff. and Clark (1991): 921.
4 See Prosser (1960): 383.
5 See Felcher and Rubin (1979): 1577.
6 A & M Records, Inc. v. Napster, Inc., 2000 WL 1182467 (N.D. Cal., August 10, 2000). See also Universal City Studios, Inc. v. Reimerdes, 2000 WL 1160678 (S.D.N.Y. August 17, 2000).
7 See, for example, Florida Star v. B. J. F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
8 Although he did not say so, it is not unreasonable to suppose that Justice Brennan was thinking not only of defamation, and not only of privacy, but also of (then) recent changes in First Amendment doctrine marked by cases such as Cohen v. California, 403 U.S. 15 (1971). If the "shell" with which one surrounded one's self was becoming more permeable with the possibility of affront, offense, and verbal assault of the kind protected in cases like Cohen and pending cases like Gooding v. Wilson, 405 U.S. 518 (1972), then it was not unreasonable for someone in Justice Brennan's position to suppose that the increasingly permeable shell provided less of a protection for personal privacy in public space.
9 Although Australian defamation law, in contrast to the American, has historically been both well used and among the most press restrictive in the English-speaking world, the actual content of the Australian press, in terms of the "wide-open" and "robust" criticism of government and officials (New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is strikingly similar to that of the American press. See generally New South Wales Law Reform Commission (1993).
10 At least some journalists and editors, for example, claim that their publication decisions are largely uninfluenced by considerations of defamation law. See Anderson (1975): 422; Hollander (1989): 257, 258 n. 3; Smith (1983): 87.
11 For the record, I believe it more for the better than the conventional wisdom supposes, partly because I think that journalistic covering up of information that some voters would have thought relevant to their voting decisions is more for the worse than the conventional wisdom believes. See Schauer (2000a).
12 There is an interesting issue here, and with other First Amendment-related reporting as well, of journalists' ethical responsibilities when reporting on privacy issues. Given that individual privacy and freedom of the press are often thought to be in conflict--see Edelman (1990) and Clark (1991)--much of the reporting on privacy issues will involve, whether explicitly or implicitly, reporting on free press issues as well, issues in which the reporters, the editors, the publishers, and the newspaper (or magazine, or radio station, or television station, or whatever) have strong views, and are themselves interested parties. If a reporter for the New York Times is ordinarily expected to recuse himself or herself when the issue on which she is reporting is one in which she has especially strong moral or political views, and to identify any potential conflict of interest, then what are the implications for this when reporters are reporting on issues centrally about, or touching on, issues of freedom of the press, issues on which reasonable people often disagree, and on which there are often two sides (especially with privacy versus free speech conflicts), but in which journalists are more uniformly on one side than the other?
13 See, generally, Gordon (1984).
14 See Schauer (1991).
15 See Schauer (2000b).
16 Especially decisions such as Roe v. Wade, 410 U.S. 113 (1973), and Griswold v. Connecticut, 381 U.S. 479 (1965). See Gerety (1981).
17 There is also the interesting phenomenon by which influential public understanding of what the law is may diverge from the formal or technical understanding of what the law is. See Ellickson (1991).

REFERENCES
    American Law Institute. Restatement of Torts (Second). 1967.
    Anderson, David A. "The Economics of Libel Litigation." Texas Law Review, 53 (1975): 422-71.
    Clark, Terence J. "When Privacy Rights Encounter First Amendment Freedoms." Case Western Reserve Law Review, 41 (1991): 921-28.
    Edelman, Peter B. "Free Press v. Privacy: Haunted By the Ghost of Justice Black." Texas Law Review, 68 (1990): 1195-1211.
    Ellickson, Robert C. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard University Press, 1991.
    Felcher, Peter L. and Edward L. Rubin. "Privacy, Publicity, and the Portrayal of Real People by the Media." Yale Law Journal, 88 (1979).
    Gerety, Thomas. "Doing Without Privacy." Ohio State Law Journal, 42 (1981): 143-44.
    Gordon, Robert W. "Critical Legal Histories." Stanford Law Review, 36 (1984): 57-126.
    Hollander, David A. "The Economics of Libel Litigation." The Cost of Libel: Economic and Policy Implications. Eds. Everette Dennis and Eli Noam. New York: Columbia University Press, 1989.
    Lange, David. "The Speech and Press Clauses." U.C.L.A. Law Review, 23 (1975).
    New South Wales Law Reform Commission. "Defamation." Discussion paper 32 (August 1993).
    Prosser, William. "Privacy." California Law Review, 48 (1960).
    Schauer, Frederick. "Exceptions." University of Chicago Law Review, 58 (1991): 871-99.
    Schauer, Frederick. "Can Public Figures Have Private Lives?" Social Philosophy and Policy, 17 (forthcoming 2000a).
    Schauer, Frederick. "The Speech-ing of Sexual Harassment." New Directions in Sexual Harassment Law. Eds. Catharine MacKinnon and Reva Siegel. New Haven: Yale University Press, forthcoming 2000b.
    Smith, Barry F. "The Rising Tide of Libel Litigation: Implications of the Gertz Negligence Rules." Montana Law Review, 44 (1983): 71-92.
    Warren, Samuel D. and Louis Brandeis. "The Right to Privacy." Harvard Law Review, 4 (1890).

PART VI

PRIVACY AND THE STATE

INTRODUCTION
    BY JEAN L. COHEN
    THE papers in this section address the topic "Privacy and the State" from three different cultural, social, and political perspectives. Fatos Lubonja offers chilling testimony to the crippling effects of the loss of privacy under Albania's totalitarian regime, where he spent 19 years as a political prisoner. We in the West have certainly encountered important analyses of the effects of the deprivation of privacy in total institutions (Goffman) as well as theories of totalitarianism that place the project of destroying public and private space, public and private autonomy at the conceptual core of such regimes (Arendt). It is thus astonishing to learn that no writer in Albania has hitherto analyzed totalitarianism from the perspective of privacy. "Privacy in a Totalitarian Regime" fills the gap with a chilling first-person narrative of the terrible experience and debilitating effects of state-engineered loss of privacy on ordinary citizens.
    Avishai Margalit's "Privacy in the Decent Society" attempts to provide a philosophical justification for the privacy protection of human and civil rights against arbitrary interference. An Israeli professor of philosophy, Margalit argues that the concept of privacy in the Jewish tradition is as old as the Talmud, although the right of individuals to exercise privacy is historically contingent. Presented in the form of a gloss on article 12 of the Universal Declaration of Human Rights, Margalit's essay argues that privacy is a constitutive element of human status as well as an enabling condition for leading a flourishing life. Indeed, certain deprivations of privacy amount to an intentional humiliating attack on one's honor and dignity that no decent society should permit. For the most part this paper restricts its analysis to arbitrary interference with home and family and the degradation involved when intimate personal relationships and, especially, intimate aspects of the body are exposed to public view. A chilling example cited in the text is the objection by the ultra-Orthodox to a photograph at Yad Vashem, the Holocaust memorial museum in Jerusalem, that shows naked Jewish women being marched to their death by Nazi soldiers.
    Margalit explains the nature of the complaint, which should be compelling not only for Jews and religious fundamentalists but for everyone. The issue is not prudery against nudity but rather the danger of viewer complicity with the Nazi ritual of using humiliating nakedness to violate the dignity of these women. I would have preferred that the same objection were made to the nakedness of the men marched to their death by Nazis, who were also humiliated in this fashion. This would avoid another danger: that of reinforcing traditional gender stereotypes, which Margalit's distinction between "honorific nudity" and "humiliating nakedness" does not undo if the examples of both are always of women. But this minor point should not distract the reader from registering the important clarifications Margalit's essay affords with regard to privacy analysis.
    "On Being Watched and Known," by George Kateb, gives us an American perspective on the threats to personhood and human status entailed in the increasingly ubiquitous surveillance of individuals made possible by new technology. Here the issue is how to develop an argument that one's dignity and freedom are at stake even if one does not feel particularly oppressed or abused by camera surveillance or databases collecting personal information about an individual without her consent or control. Kateb's strategy is to present a comprehensive picture of what these new powers have so far achieved and to show how such invasions of privacy can be used to oppress an entire population, to violate rights (or the rights of subsections of the population), and to assault human status. For Kateb the danger is a form of "soft" totalitarianism: by mere virtue of the fact that we know we are being watched, monitored, registered, tallied, and assessed, our behavior will be altered as it is meant to be, and our freedom curtailed. Kateb's analysis certainly should give us all pause and motivate us to fight to protect our privacy.

PRIVACY IN A TOTALITARIAN REGIME
    BY FATOS LUBONJA
    MUCH has been written in Albania about the violations of human rights and freedoms under the totalitarian regime we experienced: the imprisonment, surveillance, spying, and the coercion the communist state imposed on citizens, as well as the fear and the brainwashing. But these phenomena have never been considered inside the framework of the concept of privacy. This is the first time I myself have looked at totalitarianism from the viewpoint of privacy. To my knowledge, no other writer or essayist in my country has tried his or her hand at it. This is simply because privacy as "personal space," as the right to be alone, as a dimension of freedom, has not existed as a concept in our culture, which was deeply marked by totalitarianism.
    What initially flowed to my mind when I sat down to think about this subject and what I was going to write were two moments from my memories of that time.
    The first concerned an inmate of Burrel prison, the worst jail in Albania and where I spent several years of my own long imprisonment. The prisoner at Burrel lived his daily life in a room/cell in the company of 10 other prisoners. His space consisted of the area where he could put his hay "bed," which was less than 30 inches wide, and also one-tenth of the narrow corridor at the end of the bed. Close to him was the other prisoner who had the same amount of space. The same was true of all the other prisoners in the cell. Because of these conditions, the prisoner was forced either to sit on the bed for 22 hours or move up and down in the corridor at the end of the beds under the eyes of the three forms of surveillance that existed in the prison. The prison command could listen to all our conversations thanks to microphones planted in the walls. The second form of surveillance was the one or two spies inside the cell. The third was the policeman who watched through a hole in the door. We spent the remaining two hours taking some air outside in the courtyard, using the toilet, and eating three times a day at the canteen.
    When the prisoner wrote to his family, he was obliged to put the letters in an open envelope and drop them into a box. When he received letters they also came in an open envelope. When a prisoner was unlucky enough to suffer an attack of diarrhea at night, the guards did not even open the door to allow him to go to the latrines. In the presence of many others, in a bucket kept especially for these cases in a corner of the room, he was obliged to empty his bowels. The only time he could feel alone was during the "airing" in the courtyard. Alas, often this time was spent talking about a personal problem or a political question with a friend. This sort of life lasted not for months but years.
    My second memory belongs to another category of people, the persecutors of this prisoner: to be more precise, a member of the all-powerful Political Bureau, the number two man in the country for about 30 years, Prime Minister Mehmet Shehu. His second son, whom I met later in prison, told me an episode from Shehu's life.
    The last wish of Shehu's mother was to be buried in her native village close to her husband, and she had told Mehmet so. When she died, Mehmet was making preparations to carry out the promise he had made to his mother, but on the second day of mourning he met the dictator Enver Hoxha. Hoxha expressed to Shehu his "desire" that his mother be buried in the capital city of Tirana in the cemetery lot reserved for the parents of the leadership. Shehu called a meeting of his family and told his children that the plan to bury granny in her native village had been canceled because Comrade Enver had expressed the desire that the parents of the country's leaders be buried together.
    In 1981, Shehu killed himself after Hoxha accused him of being a foreign agent. His family was banished from Tirana and later his two sons and his wife were imprisoned. His elder son killed himself. When his family was forced to quit Tirana, they could not take anything from their home except their clothes and some books because everything else in the house of a senior member of the leadership belonged to the state. This included the house itself, the furniture, the beds, the cars, and even the kitchen utensils.
    These two extremes cases, presenting the bottom and the top of the social stratums of Albanian society, are both close to zero privacy; they illustrate the saying that extremes touch each other. These extremes also present two excellent limits within which we can see the fate of freedom and privacy of others living a more "normal" life in a totalitarian regime.

BREACHING THE PERSONAL SPHERE
    When we think of privacy, we imagine it as a spherical space, made by concentric spheres, with the individual at its center. This is the space that a man needs to feel around himself--a covering just like his clothes--in order to protect his individual self from others, the state, and his own social self. For greater detail, we imagine these concentric spheres as more transparent and less dense in the outer areas, thus allowing more penetration. But they become more opaque and harder to penetrate the closer you come to the center because fewer people should have the opportunity to enter and look at what happens to you.
    What was the realtionship of the totalitarian regime with this space?
    It has generally been accepted that it is difficult to define totalitarianism since it has had different traits and varying shades of fierceness in various countries. I find the description Raymond Aron made in Dýmocratie et totalitarism in 1965 very accurate. According to Aron, a totalitarian regime has the following characteristics:
    1) The existence of one party that has a monopoly over political and government activity;
    2) This party is inspired and armed with an ideology that later becomes the official truth of the state and is also invested with absolute authority;
    3) The ideology is distributed by the state through a double monopoly: brainwashing (the whole of the mass media--the radio, television, and the press--is under the orders of the state) and through the use of force;
    4) The nationalization and ideologization of the economy;
    5) The terror and fear of the police and the ideological terror exercised against every economic and ideological mistake.
    If I were to add to these five characteristics, I would include: the creation of an image of the leader/dictator who was identified with the party. ("When we say the party, we mean Lenin, When we say Lenin, we mean the party," read the poem "Vladimir Ilyich Lenin" by Mayakovsky [1924, translated by the author], and he remained at the rudder of the entire country to the end of his life because he was considered free from mistakes.)
    In a word, this regime could be defined with the term party-state. As is clear from Aron's categorizations, we should bear in mind three important elements that acted on the freedom of the individual and his privacy. One aspect was the intervention to brainwash and create the new man through ideology. The second is terror and the third collectivization, which refers not only to the nationalization of private property but also the forced collective life in general that led to the dominance of the collective identity over the individual.

IDEOLOGY AND THE NEW MAN
    "This generalized, imposed, obligatory lie is the most horrible aspect of man's life in your country. It is exactly ideology that in order to survive has to handcuff those who think differently," wrote Solzhenitsyn in his letter to the senior leadership of the Union of the Soviet Socialist Republics. One of the most horrible aspects of the intervention of the totalitarian state on the individual was the intervention of its ideology on the individual's mind.
    Many studies have been undertaken on Marxist-Leninist ideology. In general, scholars are divided into two groups. Some have treated it as a religion and have found analogies with the history of religions, while others have treated it as a peculiar animal, the likes of which they have never seen in the history of mankind. (This is reminiscent of the debate between Habermas and the German historians in the 1980s about the Nazi Holocaust.)
    When we look especially at the Stalinist period, which in my country lasted until the fall of the Berlin Wall, we can see that the fideistic, cultural, and dogmatic aspects of the ideology are so visible that the comparison with religions--even to images of "medieval" and "inquisition" Christianity--easily suggest themselves. One of the closest and most intriguing comparisons I have found is with Gnosticism, or rather its most perfect example, Manicheism. This is the general scheme of Manicheism: two principles (good and evil, light and darkness, spirit and matter) whose mixture has given rise to something bad. Manicheism also posits three times: the past, when these substances were divided from each other; the present, when the mixture has been created and continues to exist; and the future, when the first stage will be repeated. This division also creates a dualistic geography: the two principles are conceived as two places divided by a more or less ideal, ever-changing border. Good has made its home in the north and evil in the south. Thus, we have two deal with two camps in three time periods.
    We find a similar classification in Marxism-Leninism. Man is born good but private property corrupts his spirit. This is the reason the present is a combination of good and evil and why Marxism-Leninism's goal was to create a new man and a new world without private property and all the evils that derived from it. Two camps were pitted against each other and were waging this struggle, the East and the West, and the goodness indicator always pointed East.
    Using the religious aspect of ideology to mold the new man and create a happy future--the likes of which had never been seen in the history of mankind--was for totalitarianism a very important tool with which to wield power and brainwash. Seen from this angle, the party itself resembled a medieval church that took care of the souls of its own members. The dictator was the saintly father of that church. Children were reared reciting that what they loved most was the party and Comrade Enver; their parents were urged to say that their children first belonged to the party and Comrade Enver. The party had to know everything about the life of the individual; no secrets were to be kept from the party. Confession was termed self-criticism.
    As the teacher of that ideology, the party knew no bounds. Its duty was to penetrate the life of the individual. Man was to conceive of himself as a cog in the machine that would save the world from the evil that private property kept alive.
    To help understand the extent to which the individual became part of the machine, I would like to relate a story by a Chinese writer. This is one of the many stories that were published in China under the leadership of Mao Zedong in the 1960s, when Albania and China were close friends. The story is about a hero who is taking part in a village feast when a quote from Chairman Mao comes to his mind: "When the people celebrate, the enemy acts." The hero starts to show vigilance and immediately he spots a suspicious man carrying a bag. He follows the man and watches him place the bag under a bridge in the commune. Clearly the enemy wants to blow up the bridge. But the enemy has seen him and the two start fighting. During the fight the hero finds himself under the enemy but he recalls another quote from Chairman Mao: "When the enemy is stronger, you must double your strength." Immediately after this thought he defeats the enemy and retrieves the bag of dynamite from beneath the bridge. But the dynamite explodes, wounding the hero, who is taken to the hospital with serious injuries. The doctors of the hospital take good care of him. When he opens his eyes for the first time after several days, his first words are: "Is Chairman Mao in good health?"
    However, Marxism-Leninism was not simply a religion, not even a "laic religion." A formal feature distinguishes religion from ideology: the structure of the act of faith. Believing is an act that stands above rational knowledge. Marxism-Leninism presents two characteristics usually encountered separately but are found closely bound together in that ideology. It is simultaneously a religion and a theory that has been rationally reasoned and that purports to be scientifically proved. Thus it also pretends to satisfy man's thirst for knowledge. Just like Gnosticism, which tried to explain the stages of the moon using two principles, Marxism-Leninism pretended to provide a full scientific explanation of history as well as natural and spiritual phenomena.
    As a religion, Marxism-Leninism was better structured than prejudices, which are pluralistic and confusing; it was also better structured than the credos that do not require full adherence; it was better structured than the political programs that have a limited scope and do not require a rigorous division between the friend and the enemy. As a theory it differs from movements of thought, which can be systematic and explicit but do not require the conformity and the absolute consensus of their adherents and, above all, do not require, generally, an investment of strong affection. In fact, it is a mutation of both and in this aspect can be considered a single animal.
    This is why Solzhenitsyn, in his letter to the leaders of the Soviet Union, said that ideology was an everyday reality around which censors and police mounted their guard against anything that might start a public conflict with it. Ideology was surmised to encompass the whole of philosophy, history, and economics, along with literature and the arts. It had the right to determine the other social or natural sciences, whose results never ran counter to its conclusions.
    The brain was invaded in all its spheres: the moral, the affective, and the rational. If you engaged in introspection, your thoughts were violated by ideology. I recall a time in my own youth when my thinking had led to discover I was an egoistic creature. This ran counter to the moral propaganda that a good man should hold the collective, the group, the party, socialism, and the fatherland above all. Then I started to have doubts about my own self and thought I was a bad man because I was caring for my own self and was not ready to sacrifice for others--as the party said the proletarians and the true people did.
    I solved this conflict--which I will explain when discussing survival--but in general the creation of a new man according to a prefabricated model destroyed introspection. Trying to become what he should have been according to ideology left man not knowing his own self, since he was unable to create an interiority in the privacy of his mind.

TERROR
    According to Marxist-Leninist dialectics, the world progressed thanks to the struggle of the classes, a struggle that was represented in different systems by different classes. In the capitalist system the struggle took place between the proletariat, which was the revolutionary class that fought to eliminate private property because it was the source of all evil, and the bourgeoisie, which was the reactionary class that wanted to preserve it. This struggle culminated in the revolution, which was led by the most initiated section of the proletariat, the communist party. Wherever the revolution triumphed, the bourgeoisie was repressed, either through the nationalization of its property, imprisonment, or both.
    The ideology said that, just like the revolution, repression was an indispensable instrument--so much so that it was often called the continuation of the revolution or the class struggle. It was true the bourgeoisie had lost power, but evil was still lurking out there in the bourgeois hangovers clouding the mind of the people and in the existence of the capitalist world. These enemies did not keep quiet and failed to change their ways through education. They often dreamt about coming back to power and tried to recruit and manipulate others. This made them a social danger: the dictatorship of the proletariat would have to be on guard against the bourgeoisie and its hangovers. Continuing the class struggle was a means of carrying the revolution forward even after the setting up of the proletarian state was established; it provided the ideological justification for the repression and the terror. This gave rise to a juggernaut of control and pressure that also saw the rise of a social stratum that was labeled "reactionaries." The latter were imprisoned and sent into internal exile and society entered a dynamic that alienated social relations.
    Regime propaganda said people belonging to the persecuted stratum were enemies only for a given time because they would become like everybody else in the future. Even the prisons they were sent to were called "reeducation camps." But these people were in fact to be annihilated, either in body or spirit. The prisoners were treated barbarously; they were nothing but a potential dangers to be destroyed by draining their psychic and physical energies. Getting rid of the bourgeoisie hangover manifested itself in its most radical form in the treatment of prisoners.
    Prisoners were greeted with a maxim coined by an Albanian interior minister: "One-third of those entering here will be destroyed physically, one-third will be destroyed psychically, and one-third will become my spies." The general Stalinist mood considered mercy for the enemy a weakness, a characteristic forbidden to the communist and the man of new type. In the Soviet Union, following Stalin's death, this style of radicalism was softened. But in Albania Stalinism continued to reign supreme. When Albania split with the Soviet Union, the Albanian dictator, Enver Hoxha, declared that "accepting ... the class struggle constitute[s] a demarcation line dividing the true communists from the Khrushchev revisionists" (Enver Hoxha, speech to the Fifth Congress, 1967). The more difficult it became to hold on to power because of economic failure, the more ideology became an "unbelievable belief"--and the more so it became an imperative to expand the class struggle and lash out at the enemies of the class.
    Shortly after the revolution, nobody spoke of the class struggle within the ranks of the party. As time went on, the dictator Hoxha said that the enemy might also be acting within the party itself. In the 1970s widespread purges were carried out in the party. In 1975, in a speech on "Further Revolutionizing the Life of the Party and the People's Power," Enver Hoxha said: "The modern revisionists and the reactionaries call us Stalinist intending to offend us. But in fact this is an honor. To be a Stalinist means that the enemy never slandered you, never defeated you."
    The idea of "sweeping away the bourgeois hangovers" meant the intervention of a broom wherever these remnants showed up. But first they had to be detected before they could be swept away. That is why the system of surveillance and spying grew in size. It often penetrated inside families, with partners spying on each other. Listening to foreign radio stations, especially to foreign music like the songs of the Beatles and the Rolling Stones, was believed to lead to degeneration and was prohibited. Fearing punishment, parents prevented children from listening to foreign radio stations; if they did not obey parents complained to the police that their children, under the influence of their friends, were listening to foreign broadcasts. Relations between parents and children became alienated because the parents, who had begun to have their doubts about the regime, could not speak openly to their children, fearing that they would not keep their mouths shut and that the Sigurimi, the notorious communist secret service, would hear about their thoughts.
    The idea that the state could intervene at any time in your private life and lash out at you because your thoughts deviated from the teachings of the party accompanied people at every step. I was arrested in 1974 because the state security service found my university diaries and their contents were judged to contain agitation and propaganda against the regime. But those diaries had never been published and no one other than myself had even read them. Nevertheless, I purposely hid them because I knew that I might be arrested if they were found. Indeed, those who kept diaries exercised a great deal of self-restraint if not self-censorship; the thought that their diaries might fall into the hands of the Sigurimi hovered over every word that was written.
    Enver Hoxha's warning that "Whoever raises a finger will have his hand cut; whoever raises a hand will have his head cut" clearly captured what punishment one could expect and the fear one lived in. It was another constant harassment that diminished freedom and privacy.

COLLECTIVIZATION
    The life of a person under communist totalitarianism cannot be understood without considering the ever-present collective as the most important aspect of understanding one's self. At an early age people were prepared for collective life through a powerful propaganda that glorified collective assets and demonized the egoism deriving from private property, which was deemed the historical source of evil and immorality. Mayakovsky's poem about Lenin figured prominently and was taught to students at the high school level. Textbooks instructed that the verse be learned by heart in both Russian and Albanian. Some of its lines read: "One means zero and empty / ... but if the little men unite in a party / then you enemy surrender, die, breathe your last breath" (author's translation).
    Let me tell you a detail from the day of my first arrest. I did not know that the Sigurimi had found my writings, which, as I noted, I had hidden. The first question the investigators asked, their faces gloomy, was: "What are your political convictions?"
    "This question is like a bomb to me," I responded, faking astonishment.
    "We really wish it could fall like a bomb on you," they retorted.
    Then I answered instinctively, to defend myself: "My convictions are the same as those of my friends." I expressed wonder at how they could ask such a question because everyone should know that my political outlook could not be anything but what the party progagated to Albania's youth. The answer with which I wanted to save myself was the clue to the great truth about the identity of the individual under totalitarianism. A man should have felt he was part of an organization that functioned as a whole, that was ordered and controlled by the party, and his collective identity should have totally dominated his individual self.
    We should not forget that the Marxist-Leninist ideology as the theory of building a world without exploiters and exploited and simultaneously an instrument of power had been intertwined with elements of the nationalist ideology. "Salvation" from the major capitalist evil that it preached had been combined with the salvation of the nation from the imperialists and the colonialists. We have seen in many countries ruled by Marxist-Leninist parties the paradoxical marriage of Karl Marx with Johann Herder. While Marx said that proletarians had no country, Marxism-Leninism preached the salvation of the nation from imperialism and colonialism. Seen from this perspective, the collective identity of the individual was doubled, inspired at the same time by the symbols of communism and those of nationalism. Individual actions, wishes, and thinking could gain legitimacy almost exclusively only within the collectivist dimension. The line of the famous Hungarian romantic poet Shandor Petofi--"for love I give my life, for the homeland I give my love"--was modified, adding the sacrifice of life and love for socialism, the revolution, the party, and the leader.
    This molding was also closely linked with the economic system, which was exclusively based on the state property that had been created from the nationalization of major industries and later the collectivization of agriculture and trade. Economic dependency from collective work, which was called working in the state sector or in the cooperative, was of unimaginable proportions. People could receive wages only from work in the state sector, and the wages from 15 days of work were so small that they could support a single person for only a month at most. This resulted in the fact that no one (except the privileged family members of the nomenklatura) could choose his or her job. Also, as in the Soviet Union, the creation of common buildings (komunalka), which was carried out partly because of population growth but mainly to cope with the influx of villagers to recently industrialized towns, also helped to destroy private life.
    Even morning exercises were done collectively. When someone made a mistake (other than those mistakes that were punishable by jail terms), he was required to carry out a self-criticism in front of the collective.

SURVIVAL
    Could people survive this repression and multifaceted intervention by the state? Or, to state it better, what kind of man would be the end product? Undoubtedly, we are dealing with a society and an individual who, compared with an individual growing up in a democratic society, would lack various attributes, such as introspection, the culture of individuality, a critical spirit, confidence in his own self, which often assumes the form of replacing old idols with new idols, a culture of communication, and the ability to create a community.
    These are only some of the consequences. We could discuss these extensively as well as how they have manifested themselves in the postcommunist transition. I want to discuss briefly what helped people living under totalitarianism avoid total alienation, not losing totally the mental and spiritual ability to feel and conceive of freedom and privacy.
    During the 1960s in Albania, we heard a joke that was said to have been imported from the Soviet Union. It was about someone who was going to become a member of the party.
    The gentleman sits down to undergo a test to be accepted into the party. After answering satisfactorily the ideological and political questions, he was told that the moment had come to "answer very delicate questions."
    The first question was: Do you like to travel?
    Yes, the candidate answered.
    Ah, then, if you would like to become a party member, you should forget about that.
    "I will forget about it," the candidate said quickly.
    "Do you like to drink?"
    "Yes, sometimes."
    "Ah, a party member should not drink."
    "I will forget about it right now," the candidate rushed to admit.
    "Do you like women?"
    "Hmm, yes."
    "Ah, forget about them."
    "Of course, right now."
    "Now comes the final and decisive question: Are you ready to give your life for the party?"
    "Of course I am because I do not need it any longer."
    The birth of this joke and its distribution throughout the socialist camp showed that people preserved their common sense and distinguished between what was normal and natural and what was not. What helped them to do that?

FAMILY AND LOVE
    One of the means of protecting the individual's privacy was the family, which, despite the merciless intervention of the state, remained an important shelter for the individual. The totalitarian state could not eliminate the institution of the family, an institution that implied two important loves: love between husband and wife and love between parents and their children. As I discussed earlier, the party-state tried its best to make people hold love for the party above any other sentiment. These loves played a double role. They offered the individual a refuge from the hostile world surrounding him. But the totalitarian state knew this very well and tried to exploit it. The state preferred that people who discharged high-level duties to be married, and being married was a must for people who worked in embassies abroad. The children of those who worked in the embassies were kept in Albania. This was done so that they lived under another threat.
    However, the government's threats sometimes failed to carry the message home. In my long experience in jails and prisons, I met thousands of prisoners. Their families had abandoned some of them under pressure. But most had preserved the relationship. When my father was condemned as an enemy of the people (this was the reason the secret police started watching me until they found my diaries and I was arrested), my mother was a member of the party. The police asked her to divorce her husband to show her loyalty to the party because the party was more important to her than her husband. She did not divorce my father. She made the point that she had entered the party thanks to her own efforts and struggle and not because of her husband's. She was, of course, expelled from the party and sent into internal exile. However, they could not declare that the official reason for her expulsion was her refusal to divorce her husband. The motive for her expulsion consisted in some bourgeois hangovers that she had manifested during her life as a party member. One of them was that she had preferred to stay in Tirana in the 1950s with her infant son and not accompany her husband to a remote town (Kukes) where the party had sent her husband to work.
    There were a lot of people like my mother.

KNOWLEDGE
    One extremely important aid in surviving life in an extremely isolated country like Albania was the fact that contacts with the world and democratic culture could not be severed totally. I mentioned earlier the destruction of introspection by ideology and that I solved my conflict with the term "egoism." My solution came through my contacts with literature and the foreign newspapers that entered Albania one way or another. Specifically, my solution came while reading a French author whose name I have unfortunately forgotten; he was asked what was the most important feature of a man. He answered, "Egoism tempered by a good education." Today I have my own reflections on this answer but at the time, being quite young, finding a positive meaning for a word that had been so demonized by communist propaganda was very important in freeing myself of the nightmares I experienced while discovering egoism in my own self.
    When we talk about light penetrating the totalitarian isolation, we must keep in mind that Marxist-Leninist ideology, despite speaking of itself as the apex of knowledge and the last religion of mankind, claimed it had a legacy. Culture that was deemed classical was not eliminated from the curricula. In dividing the world into good and evil, Marxist-Leninist philosophy had separated from the history of thinking, literature, and the arts that legacy it considered its forerunner and had included it in school curricula and the cultural and artistic life of the country. For example, the Greek philosophers were divided into the materialistic and the idealistic. Marxism considered itself the successor to materialism, so philosophers such as Democritus, Aristotle, and Epicurus could be read and taught as the forerunners of Marx. The French bourgeois revolution was considered a step toward the proletarian revolution; its inspirers, such as Voltaire and Rousseau, were allowed to be translated and read in their capacity as forerunners of the ideas of the proletarian revolution. The romanticism of the nineteenth century was both revolutionary and reactionary, so we could read Victor Hugo but not Chateaubriand. Although the Gospels were forbidden, the Greek classical writers and authors like Dante, Shakespeare, Goethe, and Tolstoy were translated and published by the state publishing houses. Despite the misinterpretations, those who could read between the lines helped themselves to develop an internal spiritual world.

COURAGE
    "I don't care!" When Albanian dictator Enver Hoxha died it was a remarkable day for Albanians. The number of Albanians expecting this day to be the day of salvation was very large. But their joy was muted. People were afraid to express that feeling loudly. They gathered at friends' houses, drank a glass or two, but everything happened in silence and they communicated only with their eyes. Even in the hard-labor camps, police and their own friends closely watched the prisoners. The only place where people celebrated was the jail at Burrel. A prisoner living in the cells of Burrel knew that he was being watched throughout the day. Many prisoners took care not to show themselves but despite that Burrel was the only place where the death of the dictator was celebrated with loud voices. These people, who knew by now that they had plunged deep into the "pool of enemies" and were drenched to the bone, did not care about being watched. They did not feel alienated by the idea that there were attentive eyes and ears recording everything that they said and did in that room. Instead, they continued to express their thoughts freely and in a challenging manner. They were voicing their ideas just as they were rejoicing at the death of the dictator.
    This category of people was small but they played a role in saving what could be saved. Whenever I think of the problems of privacy--and not only in a dictatorship--I recall the courage of those prisoners to remain themselves even though they were quite conscious that their actions were being closely watched by a state that hated them.

REFERENCES
    Aron, Raymond. Dýmocratie et totalitarism. Paris: Gallimard, 1965.

PRIVACY IN THE DECENT SOCIETY
    BY AVISHAI MARGALIT

INTRODUCTION
    IT is not justice that brings us into normative politics, but injustice. Not equality, but inequality; not happiness, but suffering; not dignity, but humiliation. And so it should be. Negative politics, the politics that counters evil, should come before positive politics, which promotes good. There is more urgency, if not importance, in fighting evil than in furthering good. Moreover, there is greater clarity and agreement in identifying evil than in recognizing and agreeing on the good. Thus urgency and epistemic priority are good reasons to adopt negative politics over positive politics. And so it is with privacy.
    It is not that easy to say what is so great about privacy. It would be easier, I believe, to say what is bad about invasion of privacy. For one thing--a very bad thing indeed--the invasion of privacy can be humiliating. My concern with the humiliating in the invasion of privacy is an essential element of my general concern with and advocacy of a nonhumiliating society.
    The nonhumiliating society is a combination of two distinct yet related ideas. One is the idea of the decent society: a society whose institutions do not humiliate those who are dependent on them. The second is the idea of the civilized society: a society whose members do not humiliate each other. An invasion of privacy can be humiliating on two counts: humiliating invasion by institutions, and humiliating invasion by individuals. It can, of course, be both: Linda Tripp, for example, working first on her own as an individual and then doing her part on behalf of the institution of the special prosecutor. Although the title of my paper is "Privacy in the Decent Society," my scope is wider: privacy and the nonhumiliating society. That is, a society both decent and civilized.

ARTICLE 12
    We should distinguish between two tiers of privacy: privacy as a constitutive element of human status, and privacy as a constitutive element of human flourishing. One is concerned with human life, the other with a good human life. On my distinction, human rights should codify what is involved in the idea of the status of a human being. Civil rights should include enabling conditions for leading a flourishing life. The Universal Declaration of Human Rights does not make the distinction between basic status and flourishing. The right to join a trade union (article 23) is on my account an enabling condition for flourishing, whereas article 12, which deals directly with privacy, relates to the basic status of being human.
Privacy belongs to both levels: it should be part of human rights and part of civil rights. Article 12 of the Universal Declaration of Human Rights pronounces "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not to attacks upon his honor and reputation." Article 12 is ambiguous. On one gloss privacy, or rather violation of privacy, is explicated by arbitrary interference in family, home, and correspondence, and such arbitrary interference counts as an attack on one's honor. On another gloss, arbitrary interference in privacy is on par with other interferences, such as interference with home, or family, or correspondence. I hold that the first gloss is the better gloss. In a sense, what I shall try to provide is a gloss of article 12 along the first reading, according to which privacy is strongly associated with family, home, or correspondence, and all these are associated with possible attacks on one's honor and reputation.

THE MORAL PENDULUM OF PRIVACY
    The pendulum of interference in privacy on moral grounds goes back and forth. It is very much like the pendulum of intervention in the internal affairs of a sovereign state on moral grounds. The analogy between the microethics of interference in privacy and the macroethics of intervention in sovereignty sheds light, I believe, on article 12, that is, on the relation between privacy, family, and home.
    In the years following World War II, a process swept the world whereby metropolitan countries handed authority to their dependent colonies to become sovereign states. Decolonization was the term used to describe this process. The fear of neo-imperialism, of the old countries regaining hold of their former colonies, was such that any hint of intervention for whatever reason and of any kind was bitterly resented. This attitude applied even to cases in which, under the shield of sovereignty, gross violations of human rights took place by the newly founded states. As the bitter memory of colonialism fades away and the harsh reality of terror and abusive power in many former colonies becomes apparent, calls for interventions in the so-called internal affairs of sovereign states on moral grounds become more vocal. The moral pendulum swings from sanctification of sovereignty to sacrosanct human rights, even with the consequence of transgressing sovereignty in the name of defending human rights. The fear of using moral reasons the way missionary religious reasons were used--as a pretext for neocolonialism--is still a justified fear. But it should not deter us from viewing pleas for interventions on an individual basis, rather than rejecting them all out of fear that they are mere pretexts for neocolonialism. This is the macroethic swing between sovereignty and moral intervention.
    "A man's house is his castle" is a battle cry for total immunity from intervention in the private sphere, the way sovereignty was meant to provide total immunity against external intervention in the affairs of the state. But if one's home is one's castle, then in many such castles many small-time tyrants rule over their families--almost always men. They reign as heads of families. This criticism of privacy as a shield for family tyranny goes under the slogan that the private is political. Insightful as this criticism is, it takes its toll. It undermines privacy, even when and where privacy is needed. The women's movements gave currency to the idea that the private is political and hence justified outside intervention in privacy on moral ground. I believe that the Clinton-Lewinsky affair swings the moral pendulum back to the side of privacy. And that is perhaps why we are all here talking again about privacy.

THE CORE BASIS
    Crossing the border of a sovereign state is a well-defined act; transgressing privacy is not. Yet the current metaphor for privacy, "I need space," means "I need privacy." And to a large extent, the politics of privacy is the politics of space. The space is the home. It provides a private retreat from the outside world.
    At home we are supposed to feel free, in the sense of behaving spontaneously without external constraints. In the contrast between nature and culture, the private home is on the side of nature, whereas the public space is on the side of culture (but when the home is contrasted with the outside simpliciter, home becomes culture and the outside is nature).
    In the privacy of the home we let ourselves behave more naturally, in the sense of less self-consciously, that is without feeling uncomfortably conscious of ourselves or of the observation of others. It does not mean that in privacy we are alone. It means that the gaze of those who belong, with us, to the home (paradigmatically, the family), is not supposed to make us feel ill at ease. On my gloss, arbitrary interference in privacy through interference with home and in family is a severe form of blocking our freedom. Some forms of constraining freedom are acts of humiliation, a denial of human status. I shall come back to that.
    My interest in privacy is not an interest in its definition or in delineating its boundaries. It is, rather, in the core cases of its violation. The core cases I am interested in are those that involve unlicensed observation at one's home and self: the "unwanted gaze," to borrow Jeffrey Rosen's felicitous expression. My aim is to see if intrusion in the core cases hurts one's status as a human being, and hence, humiliates.
    About privacy they were never wrong, the Old Masters (to misquote Auden). They knew a great deal about violation of privacy in one's home, indeed in one's home garden. The apocryphal story of Susanna and the elders provided them with ample opportunity to manifest their deep understanding of such violation. Altdorfer, Veronese, Lotto, Tintoretto, Rubens, Van Dyck, Rembrandt, Corint, and Kokoschka--to mention but some--vividly depicted the unwanted gaze of the two old men directed at virtuous Susanna. Observing her alone and naked in the walled garden, the two elderly men plot to seduce Susanna by blackmailing her. But the Old Masters concentrated on the peeping part, on the violation of Susanna's privacy, and not on Susanna's purity.
    Lady Godiva, unlike Susanna, rode naked through the crowded marketplace of Coventry. Peeping Tom let down his window and looked out. His behavior was indecent and, according to the legend, he was punished for it by being struck blind. But his gaze, unlike the gaze of the elders in Susanna's story, was directed at public space. Still, "peeping Tom" became an expression to describe someone who directs his prying and unwanted gaze at people's private home, and Peeping Tomism became a paradigm case of intrusion not by an institution but by an individual.
    The Susanna story was a good occasion for the Old Masters to depict a beautiful woman in the nude. But there is an important distinction here between nudity and nakedness. Nakedness expresses vulnerability; nudity, beauty. Ingre depicts nudity, Lucian Freud, nakedness. In the various Susanna representations, we become privy to the ambiguity in her situation, which is at the core of violation of privacy by an unwanted gaze. We, the spectators, see her nudity, but the lascivious gaze of the elders turns her nudity into nakedness. Her flesh turns into meat and she becomes a pure object of lust. The elders' unwanted gaze is indecent, not just in the conventional sense of not conforming to the status of propriety, but indecent in the strong sense of humiliation.
    A few years ago the ultra-Orthodox people in Israel complained that Yad Vashem, the Holocaust memorial museum in Jerusalem, was showing naked Jewish women being marched to their death by Nazi soldiers. The photograph is a manifestation of the Nazi pornographic blend of humiliation and extermination. For the ultra-Orthodox in general there really isn't a distinction between nudity and nakedness. Every exposure is nakedness: it puts people in the position of animals and thus humiliates them. But the complaint about the picture should resonate with us, who distinguish between humiliating nakedness and honorific nudity. The picture in question is definitely a case of terrible humiliation; stripping those women of their clothes was a deliberate act of stripping them of their dignity. The issue for us is to sort out whether by our gaze at the picture we take part in the Nazi ritual of humiliation, or whether it is instead a way to dignify the memory of those women by identifying with their plight.
    Whatever the answer, it is clear that privacy has a great deal to do with what euphemistically but aptly is called private parts. Those parts are the subject of great human vulnerability, and thus are a potential source for acts of humiliation. Indeed, the private parts of Bill Clinton and Monica Lewinsky, as paraded by the peeping Kenneth Starr, have a great deal to do with their humiliation in the strong sense of human degradation, and not just in the sense of acute social embarrassment.

THE POWER OF GAZE
    Who gazes at whom and how: this has a great deal to do with power relations. God sees everything and everyone, but no one can see Him. He is almighty. To see and to control how you would be seen is power. Secret services know that the minute they are exposed, they lose power and the magic vanishes. In many movies about the Marines there is the clichý of the sergeant-major inspecting the platoon: he stands in front of a new recruit, moving his eyes over his body from top to bottom and back and forth while the new recruit has to fix his gaze and not inspect the sergeant in return. The asymmetry in power is strongly suggested by the asymmetry in gaze.
    No one more than Foucault seized on the importance of the eye of power. He made Jeremy Bentham's neglected idea of the Panopticon into a formative metaphor: the visibility of the individual under the centralized system of gaze. The Panopticon puts the inmate under the constant gaze of the overseer. To the eyes of the overseer there are no opaque zones, not even in the darkness of the dungeon. In short, no privacy whatsoever. The Panopticon should not be viewed just as an exercise in the technology of power, but as the ultimate denial of privacy, of putting an inmate in a cage. It is in fact worse than the situation of an animal in a zoo, because the animal can at least stare back at its viewers. Not so in the Panopticon. Loss of privacy is equated with complete loss of the protection from an unwanted gaze. In the Panopticon, the overseer plays God. He sees all without being seen. The inmate stands at the other pole to God, that is, he is seen without being able to see. This is a case of deep, animal-like humiliation. The stress in my contrast is not so much on the overseer/demi-God versus the vulnerable inmate, but on the Panopticon versus home. Home, the proverbial home, is the locus of privacy. It provides protection from unwanted gaze.

FAMILY AND PRIVACY
    In article 12 of the Universal Declaration of Human Rights, we find the juxtaposition of arbitrary interference in one's privacy and arbitrary interference in one's family. Privacy, family, and home are intimately connected. The idea of privacy is not all sweetness and light. Bitter criticism is directed against the cult of privacy. The criticism is that on too many occasions privacy is nothing but a pretext for letting people stay lonely; that it is a label for social atomism and indifference--in short, a cuphemism for loneliness. But as I have already mentioned, the criticism should go in the opposite direction, namely, it should not be directed at the privacy of the individual, but rather at the potential tyranny inside the family.
    There are no good reasons why the idea of privacy should go wrong. Like many good ideas, it can go wrong but there is nothing in the idea of privacy itself that makes its implementation highly likely to go wrong.
    My general claim is the opposite of the claim that ties privacy to loneliness. Privacy, I maintain, is an enabling condition for forming intimacy. It is thus an enabling condition for forming meaningful relations, the paradigms of which are family relations and friendship. Not loneliness, but the possibility for intimacy is at the core of the idea of privacy. To be intimate with all is to be intimate with no one.
    I should meet some initial objections to my position right away. Here is one: it is to our flourishing and not to our status as human beings that intimacy is important, if it is important at all. So it is of no concern to the nonhumiliating society. And since my concern with privacy is from the perspective of the nonhumiliating society, then even if my claim about the relation between intimacy and privacy is true, it is an irrelevant truth. So one objection is that intimacy concerns human flourishing rather than human status. Another objection to the same effect is that intimacy and privacy are new ideas and the mere fact that they are new and modern means that they cannot be basic to human status. After all, basic human status was bestowed on humans before the emergence of privacy and intimacy.
    Intimacy combines two ideas: one, the idea of one's deepest personal core, and two, the idea of a very close and warm friendship. The second idea in turn is ambiguous because of the ambiguity in the notion of friendship itself. In one sense friendship is akin to camaraderie, friendship-in-arms. Intimacy and privacy play no role in this notion of friendship. It can develop and be nourished in, say, army barracks that are not particularly known for affording privacy. The main trait of this kind of friendship is that ability to count, totally, on the other in times of crisis and of great need. In the other sense, friendship is soulmateness, where friends reveal to each other their inner lives and their secret thoughts and feelings to cement their special, "thick" relationship. Since such relations are based on revelation, privacy is a constitutive part of this kind of friendship.
    Whether the idea of friendship as shared intimacy starts, say, with Goethe's elective affinities, or whether it was anticipated already by Aristotle's two Ethics, does not really matter: Newness is not an argument against what should be included in human status. After all, the notion that slavery is wrong is even newer than the idea of friendship as elective affinity. Yet our concepts of human status and human dignity should be such that slavery comes out as a denial of human status. There is nothing wrong in the idea that our moral notions are a matter of discovery and thus of change.
    There is also no mystery in tying the notion of human status with relations such as family and friendship. The status of being human depends on recognition of and respect for human relationships like family and friendship. Hence the status of humans should recognize privacy as a vital ingredient in the way these kinds of relationship are expressed in our culture. Looking at the Clinton-Lewinsky affair from afar, I was struck by the fact that Monica's mother had to appear in court, betraying the trust of her daughter in a matter (Paula Jones's suit) in which neither was directly involved. I was struck by this arbitrary intervention in family relations, which I take to be a terrible breach of privacy. (But, I repeat, this is an uninformed view from afar.)

PRIVACY AND HYPOCRISY
Privacy, the critic says, is not just a euphemism for loneliness. It is the kind of idea that tries to give hypocrisy a good name. The very idea of privacy is that our public persona is indeed nothing but a social facade--or, as its Greek origin suggests: a mask. Thus the distinction between the private and the public is, on this view, between reality and appearance: between the true, natural, and spontaneous private self, and the affected, assumed self that is presented to the public. Instead, the critic suggests transparency, a nothing-to-hide policy that will eradicate the barrier between the private and the public. The politics of privacy, on this view, is the policy of sham in public and sincerity at home. It promotes a false and pernicious picture of public life as a life on the stage, with given roles, given scripts, and lots of stage directions.
    Life, public life, should not be a stage. No one should be forced by convention and public opinion to feign what one is not, and to be true to one's self only in the security of home, family, and friends. The idea that duplicity along the lines of the private/public contrast is a necessary condition for creating a viable culture, and that hypocrisy is therefore the price we have to pay for culture, is an idea that our critic rejects. Only one particular kind of culture essentially depends on hypocrisy: bourgeois culture. But a culture of sincerity and authenticity, based on transparency, is a genuine possibility. It calls for removing the wall between the private and the public. What getting out of the closet and outing did to the gays, the culture of sincerity wants to do to us all. Universal outing; farewell to skeletons in private closets. Between the cult of privacy and the culture of sincerity, one should opt for the latter.
    So much for the critic. Indeed, the case of the gays is to the point here. Coming out of the closet is very different from outing forced by others. Outing is an invasion of privacy. Coming out of the closet is a decision by an agent to redraw his or her own line as to what is private and what is public. The point about the culture of sincerity is that it can be a blueprint for a cruel cultural revolution by universal outing, that is, by total intervention in each other's privacy. This can be as nasty a revolution as the Cultural Revolution that tried to uproot the habits and artifacts of the bourgeois. By "as nasty" I mean as humiliating as the Red Guards' systematic humiliation of their victims.

THE INNER CITADEL
    So far I only claimed that universal outing for the purpose of creating the ideal of the sincere society, a society in which each is open to all, is wrong. But what about people who try to install such a Rousseau-like society out of their own free will? Is it as perverse as a society whose members, out of their own free will, become slaves to the ruler they love and admire? Is giving up on privacy like giving up on freedom?
    For the Stoic it is not the home that is one's castle, but the head. It is this fact that guarantees not only our inner freedom, but also our capacity for dissimulation, hypocrisy, and insincerity. We do not need walled houses in order to be hypocrites. The sincere society does not depend on our living in a house of glass, but on our being transparent in our thoughts and feelings.
    There are some doubts about the Stoic premise--that our heads are our private citadels that enable us to keep our free thoughts and feelings to ourselves. Already Ecclesiastes (10:20) warns us: "Curse not the king, not in thy thought; and curse not the rich in thy bed chamber; for a bird of the air shall carry the voice, and that which has wings shall tell the matter." Presumably there is no inner thought without an outward behavior that betrays that thought. Faint and subtle as this behavior might be, the cues will be picked up (by some "bird"), and the thought will be revealed.
    There is also the Freudian argument that doubts the very idea of the freedom of inner thoughts. Freud's notion of the superego functions as a powerful mechanism by which ideas from the outside control and repress one's own inner ideas. And of course there is the more mundane mechanism of torture that can pluck out one's inner thoughts.
    All these doubts notwithstanding, we still recognize the truth in the Stoic premise, namely, that we can keep our thoughts and feelings to ourselves if we wish to do so. This is enough for keeping the insincere society going. So radical sincerity calls for a radical change in Stoic privacy.
    Let us imagine the following thought experiment, and see how we react to the results. One day we wake up in the morning and, like Gregor Samsa, we are transformed into creatures whose propositional thoughts are written on their forehead. Some rush to cover their foreheads lest their obscene thoughts be exposed for all to see. But let us imagine that covering the head is dangerous: those who cover are struck dead. Now being transformed into such beings, we become eligible to realize Rousseau's wet dream of a radically transparent society. The last citadel of privacy has come tumbling down.
    I lack the science-fiction imagination to follow through the thicket of the consequences of this imaginary situation, which is in such contrast to our real situation. But I suspect that along with such a change, the notion of "our life" would also undergo a drastic change that might further alter our notions of who we are and what our relations with others might be. If this suspicion is true, it means that Stoic privacy is constitutive to our form of life as humans. So whether we like the utopia of total transparency or dread it as a dys-utopia, it is not us, qua the humans that we know, who will inhabit such a transformed world. Privacy, at least Stoic privacy, is constitutive of our form of life, and if this is true, then it also has to do with our status as humans.

CORRESPONDENCE
    Article 12 of the Universal Declaration of Human Rights mentions correspondence, in the sense of one's private exchange of letters, as meriting protection against arbitrary interference. By arbitrary I understand intervention for no justified reason. Random intervention is a paradigm case of arbitrariness. It is the cruel irony of Stalinism that in the year 1936 Stalin handed over a rather generous constitution with an article (128) that said: "the inviolability of the homes of citizens and privacy of correspondence are protected by law." He then proceeded to launch the most appalling terror by the random selection of victims. It was the epitome of arbitrary interference with home, family, and correspondence.
    But arbitrary does not just mean random. It means interfering for no good reason, and in our case I would add, for no good moral reason. Indeed, a good moral reason can select correspondence randomly. Military censorship during a war can randomly select letters for inspection. So the issue is not randomness as such, but lack of a good reason, which makes interference arbitrary.
    In the Jewish tradition I come from, privacy from an unwanted gaze is as old as the Talmud (codified in the fifth century C.E.). Damage from an unwanted gaze was recognized as a compelling reason to force the hand of your neighbor, with whom you share a common ground, to share the expense of building a barrier between him and you to block the possibility of unwanted gazes. Privacy of correspondence in this tradition comes in the High Middle Ages. A ruling not to be privy to private correspondence without permission was attributed to the highest rabbinical authority of European Jewry in the eleventh century, "Our Rabbi" Gershom, nicknamed "Light of the Exile."
Privacy both at home and in correspondence is thus not that new, at least not in the tradition I know a little about. As I have indicated already, a distinction should be made between having the concept of privacy--which, I maintain, is quite old--and exercising privacy, which depends on the conditions of living. What comes in article 12, after ruling against arbitrary interference with correspondence, is a strong ruling against attacks on one's honor and reputation. All these are subsumed under the cover of privacy--at least according to my interpretation of article 12.
    Many regard the idea that the concepts of honor and reputation are tied to privacy as a problem for celebrities and public figures only. Elton John is a good singer and even a better composer. He worked hard to project a glitzy image with his fanciful Versace suites, kitschy white piano, elaborate wig, and sunglasses. He had a reputation to maintain. I well remember seeing one day in the London tube, on the front page of one of the tabloids, Elton John timidly climbing down into his swimming pool, looking paunchy, bald, and rather pathetic. He is far from being the only celebrity who received such rough treatment from papparazi predators. But then the idea is that since celebrities make their reputation and living from the attention they get from the public, they cannot complain when they are exposed in public. This, I maintain, exhibits the same logic as the argument that prostitutes are free game for rapists because they make their living selling sex. There is no issue of reputation and social honor in the case of the prostitutes, but a terrible violation of their human dignity, which consists in their right to choose their client and to be the owner of their body. In the case of celebrities, it is not predominantly their reputation and social honor that should be protected against an invasion of their privacy, but their human dignity.

ON BEING WATCHED AND KNOWN
    BY GEORGE KATEB
    MUCH of the time, discussion of the subject of privacy is centered in worry over easily recognizable effects on people when their privacy is violated. If a court finds that a right to privacy includes the right of married or unmarried couples to use contraception, the government's prohibition of it is judged to be a serious harm. If a person's house is entered without a valid warrant, a court will usually find that the government has seriously harmed that person's privacy.
    These are just two of numerous examples where the stake is protection of privacy against state intrusion that is deemed unacceptable. A person's entitlement to be fenced in against invasion is affirmed. But when government does not honor that entitlement, and no court provides a remedy, citizens may still say that a person has been harmed in his or her vital claims. In any case, some claims are so vital that we call them constitutional rights, not only moral rights, and not merely legal rights. In the abstract, we say that by violating (or trying to violate) constitutional rights, government is treating (or is disposed to treat) people in such a way as to inflict serious disadvantage on them, thus impairing their ability to make major decisions in life freely or to remain unmolested. These are grave harms. People in a democracy need little coaching to say that they have been harmed or injured or violated, though they may need trained lawyers to formulate their claims jurisprudentially. People know that some significant interest of theirs has suffered, even if they do not always reach for the language of rights in which to express their grievance.
    Now if people, by some chance, do not complain when their rights appear, in the judgment of the observer, to be violated, or if they consider the matter insignificant, or even think that they deserve to be treated as they have been treated, the spirit of the laws--if I may reify--would admonish them. It would say that when a person is treated in certain ways, even if the harm is not felt as harm or felt at all, that person has nevertheless been harmed. A person is obliged to guard his or her rights by knowing when they are violated, or suspecting that they may have been, even in the absence of a judicial declaration to that effect. Every citizen must be extremely sensitive to actual or threatened or even arguable violations. That is the heart of democratic citizenship.
    By guarding one's rights, one is guarding not only one's own vital interests, but by the force of example or precedent, the vital interests of everyone else. In that sense, we are each other's keepers. Every valid assertion that my right has been infringed is simultaneously the same assertion on behalf of everyone else. Basic rights are general possessions. There is a further complication. By guarding one's rights, one is also guarding one's own personhood or human status as well as everyone else's. (Personhood and human status are rough synonyms.) I mean to say that every violation of a basic right, just by being the suppression of a vital claim or interest, is also a failure to respect the personhood of a human being. In being improperly coerced, a person is also being held in contempt. A person is being treated, say, as if he or she were a child rather than an adult, or were a mere means to an end; or has forfeited all rights because of some offense. These forms of contempt are injuries or insults to persons and should register as an additional harm. Every basic right thus has a double meaning. The spirit of the laws--that is, the spirit of the U.S. Constitution and other comparable charters--reveres personhood, reveres the human status of every individual. Indeed, the substance of specific basic rights, such as free speech and religion, or the prohibition of self-incrimination and double jeopardy as well as, of course, the various rights clustered in the idea of the right of privacy, may be said to derive from an initial idea of personhood. Or if the practice of a given right preceded the articulation of the idea of personhood, then it is this idea that provided the rationale for the right when, for example, the codification we know as the Bill of Rights was framed, and that still provides the deepest reason for it.
    But what has recently become clear (yet again) is that even if courts hold, and with a putative if disputable correctness, in one or another case, that no basic constitutional right is violated, a person's human status may still be injured. The idea of human status contains more than the imperative that basic rights, as currently interpreted, be respected. It also includes the imperative that no policy, seemingly within the scope of rightful state policy, can have the effect of treating a person as if he or she were a child rather than an adult, or as a mere means to an end; or has altogether forfeited consideration as a human being because of some crime or alleged crime. If a policy has this tendency, but at least appears to violate no basic constitutional right, then it should still be condemned as injurious to human status, even though most people, for the time being, do not perceive the injury to their status, and courts do not yet recognize it. In sum, every violation of a basic constitutional right is an injury to the human status of individuals, but not every injury to human status is, at least initially and in appearance, a violation of a basic constitutional right. Indeed, injury to human status can be inflicted even if no basic constitutional right is violated: it is probable that not every such injury lends itself to formulation as a violated constitutional right. But fundamental moral rights remain even in the absence of constitutional rights.
    I mean, then, to hold that the subject of protecting privacy extends to more than the violations, so far judicially acknowledged, of the constitutional rights clustered in it. To be sure, these acknowledged violations and their remedies comprise the leading part of the subject. But I would like to make theoretical room for infringements of privacy that do not apparently violate constitutional rights, or are not yet held to violate them, or that may, properly, never be held to violate them. I believe that some recent technological developments have presented us with a situation in which infringements of privacy injure our personhood, and yet courts allow these infringements to proceed. At the same time, many people do not feel that their right of privacy has been violated and that their human status has therefore been injured. The technological developments that I have in mind show steady growth in capacities of watching and knowing, such as ubiquitous surveillance cameras in streets, transportation terminals, malls, stores, banks, and so on; and the computer-facilitated accumulation, storage, and retrieval of information on the body, health, habits, and tastes of everyone from infancy onward. Obviously, these are only two of many new capacities.
    Intensely aggravated expressions of the capacity to watch and know are two U.S. government programs: Carnivore, which permits the FBI to record all email communications; and yet another program (shared with the U.K.), Echelon, which permits government agencies to monitor various kinds of communications worldwide. I don't pretend to name, much less technically understand, all the devices of watching and knowing that recent technology has contributed, or to be able to anticipate new ones, though I am sure there will be new ones. In this paper I will confine myself to camera surveillance and the accumulation of personal data. The agencies that try to watch and know with ever greater completeness and precision include state bureaucracies and, more commonly, private enterprises. This means that whatever may be true with regard to other rights, privacy is a right that can be infringed by private groups--private groups that war on privacy--and not just by the state. The state, by not prohibiting camera surveillance and data accumulation, sanctions it, and thus becomes the ultimate source of formal violations of the right of privacy--to leave aside its own, ever-increasing violations.
    I am aware that the activities of watching and knowing, whether undertaken by states or other authorities or by public opinion or particular groups in society, are as old as social life itself. Yet in ubiquitous camera surveillance and in computerized data accumulation, we have a temporary logical culmination of perennial aspirations. We should not be surprised that when techniques are available they will be used; and we should not be surprised that the techniques have become available. The dynamism of modern technology has included, from the beginning, development of techniques of surveillance and knowledge about people because scientists and technicians have never discriminated among contradictory projects: relieving the human condition, controlling human populations, and performing marvels of destruction. Nevertheless, in being the logical culmination, these new devices represent the inception of a qualitatively new social system. What we are dealing with is not a tribal or village society, as once existed, made up of a few hundred or thousands of inhabitants who lived their whole lives in one another's sight. Nor are we dealing with a society like the ancient city, where a fairly strict demarcation between private and public life guaranteed at least some private darkness as a refuge against the glare of publicness. Nor, yet again, are we dealing with a society in which tens or scores of millions of strangers lived in the same country and could watch and know one another only on certain terms and in certain ways. This was the situation of civilized life--to leave aside police states--until the closing decade of the twentieth century. Rather, we now find ourselves in a condition in which scores or hundreds of millions of strangers, who live in the same society, can be watched and known not only by the state but also by private enterprises and by a scattering of technical wizards. In such a society, a few strategically placed people can know most of the rest of the population in detail that is at once close and impersonal, and unprecedented in scope. American society has become a confused mixture of public and private violators of some aspects of the basic constitutional right of privacy--or if these aspects are not part of a constitutional right, then they remain part of a moral right that befits persons in a free society.
    I maintain that one is being harmed when one is being observed by a surveillance camera or when detailed information about oneself is cumulatively and permanently available to state agencies, businesses, and other groups and individuals. The harm is to one's right of privacy. But the emphasis so far cannot be on actual rights violations, grave assaults on the ability of the great majority to make major decisions in their lives or to remain free of manifest molestation; instead, it must be on injuries to those elements of personhood that may not lend themselves to formulation as constitutional rights, but only as moral rights. The trouble is that in the absence of grave injuries, it is not easy to articulate one's feeling that one is being harmed, and it may not be possible to seek legal redress on constitutional grounds.
    Let me initially put the issue this way: one is insulted, and insulted deeply, because one loses all possibility of innocence. Nothing I do under surveillance is innocent when I know that I am under surveillance. It is worse to know or not to know that I am? Is it worse to be afflicted by inappropriate self-consciousness or to be duped without being aware of it? Then, too, there is no innocent detail in one's life when the anonymously curious can know it. Instead, one is crudely treated as interesting and even as presumptively or potentially guilty, no matter how law-abiding one is. Or, one is treated simply as an ambiguous or pathological specimen to be observed. The power to observe, by itself, induces in the observer the sense that the observed is ambiguous or pathological. One is placed under constant suspicion just by being placed under constant watchfulness and subjected to the implicit interrogation that exists when the accumulated information on oneself is seen as a set of integrated answers that add up to a helpless, an unauthored autobiography. Such a loss of innocence just from these two sources is so massive that the insult involved constitutes an assault on the personhood or human status of every individual.
    The difficulty of talking about the harm involved in being watched and known so continuously is, to repeat, that no palpable hurt is felt. Now, leading an observed and fully recorded life, thanks to the panoptical TV set, can be the condition of life in a tyrannical police-state, as memorably portrayed in Orwell's 1984. There the aim is to intimidate, inhibit, spread fear and docility, mobilize masses for essentially spectatorial purposes, and, ideally, catch a few offenders and practice on them new experiments in altering the character of even those who have the greatest initial integrity. However, what I am discussing here is not yet the total and pitiless extremism of sadistic domination for its own sake, but rather the condition that has become normal life in, of all unexpected places, constitutional democracy. The very political system that stands for the principle that personhood must be respected turns out to be a system that contributes very effectively to menacing it. A free society has unleashed a set of technologies that help to undermine the condition of spirit that sustains a free society. The paradox is worse than unpleasant--if it is a paradox. May it be that democracy itself is the great instigator of technological advance of every sort just because democracy is (or has become) inescapably consumerist?
    I believe that such devices as ubiquitous camera surveillance and computerized detailed information about everyone's life--and there are of course other comparable phenomena and will be more--are forms of so far painless oppression, of barely sensed degradation. This oppression and this degradation, just because they are so far painless to most people and barely sensed, are hard to complain about, even hard to talk about. One runs the risk of being thought dated, out of touch, eccentric, hyperbolic, perhaps paranoid, in merely worrying about such issues. I know that there is a burgeoning literature about these issues; and to that literature participants in this conference have made and will continue to make invaluable contributions. But does this literature register on public opinion with a telling and lasting effect? It is all too easy to be told that if you have done nothing wrong and if you have nothing to hide, you should let being watched and known roll off you like water off a duck's back. Isn't such a sentiment still prevalent?
    So let me add some other considerations to what I have already said about the insult, the so far mostly unfelt or unperceived insult, the painless oppression and barely sensed degradation. I admit that these points may not register even on those who are willing to listen. The first consideration is the sheer involuntariness of living under surveillance and having all the details of one's life on deposit and in the hands of the state and other interested groups or individuals. A person is, for the most part, powerless to avoid capture. A retreat into the woods and a life spent without most conveniences can, I suppose, reduce the quantity of being watched and being known. But some of the conveniences are not mere conveniences; the computer, for example, is a marvelous addition to the human repertory. You pay a terrible price if you give it up. Then, too, one tries to respect the privacy of others; but, in return, one's privacy is invaded. One feels a fool to care about privacy too much. If, however, one is sensitive to what is going on, one is aware that one is living on the wrong side of a one-way mirror, yet, as a democratic citizen, would not want to switch positions with the watchers and knowers.
    The second consideration is that a person is not, at any given time, fully aware of the extent of the coverage. How much one has been observed and tabulated is rarely apprehended by anyone. Just before, I asked whether it is worse to know or not to know that one is watched and known. Knowing for sure is intimidating, "chilling." But an intermediate condition exists between knowing and not knowing. I suggest that uncertainty is perhaps worse than knowing for sure that in public one is scrutinized by unknown eyes and that not only the main facts but almost all the facts of one's life are recorded permanently and are forever retrievable. If, to begin with, one is sensitive to invasions of privacy, one tends to a paranoid inflation of one's predicament, but then may receive recurrent confirmation of one's dark suspicions, and then sink deeper into what is not paranoia after all. Such is the logic, when not the precise aim, of the panoptical principle.
    The third consideration is the overall inequality or asymmetry that is inherent in the situation. The world is divided between those who watch and know and those who are watched and known. Even without sinister purposes, those who watch and know are able to objectify the rest. Knowing that one is being objectified, one should feel that an attempt has been made to diminish oneself. Before one tries to rise above objectification, one should see it for what it is. Each of us is treated like a lab animal, a creature that excites the curiosity and probably the desire for further techniques and projects of those immersed in the process of watching and knowing.
    This last consideration is the most comprehensive: that the new and ever more numerous techniques of watching and knowing human beings--and they are, with a cruel irony, most advanced in constitutional democracies--can lead to a fundamental revision in a person's self-conception. The revision is sharply at odds with the self-conception that a democratic individual, a democratic citizen, should have, and has so far usually had. In a constitutional democracy, in which everyone is guaranteed certain basic individual rights, personal and political, a sense builds up of oneself as precious, as a whole world, as an end in onself. I have already referred to the idea that rights aim at denying the state the power and authority to treat adults as if they were children or to reduce them to mere means, mere instruments or machines. Part of the built-up sense yields the thought and corresponding sentiment that one owns onself, which means that one is not owned by the state or by some superior caste or by society as an abstract entity. One is enabled to freely treat oneself as autonomous, to an important extent and in many respects. Woven into that notion of self-ownership and in the cognate notion of autonomy is that one is inviolable. That means not only that a person should not be invaded by forces that try to use him for purposes not his own, but also that we should think of a person as having boundaries that should not be breached.
    The appropriate self-conception of a rights-bearing individual is that one thinks of onself as not being at the disposal of others. One must freely choose to work with others for common aims, which are preferably restricted and temporary. Only where there are bonds of affection or duties of love or duties to the vulnerable can one be at the disposal of others; but then we would no longer speak of being merely at the disposal of others. I am not supposed to be folded in effortlessly in some plot or plan or strategy of others. I am not supposed to be mobilizable, either knowingly or unknowingly, for goals that I have no power to help to initiate or control. The new techniques of watching and knowing cross my boundaries, and by doing that, they injure the sense of myself as inviolable. Inviolability is an important aspect of human status. I am not inviolable when I am made to blend even more than is now the case into a social mass of individualized targets of attention and scrutiny. I become just one more creature being observed, part of a continuous spectacle consumed by a few. I become an involuntary detail for technicians who live to make over the whole world into one picture.
    I become merely permeable. I lose true anonymity and become either painfully known or presumptuously categorized. Invisible powers make me visible against my will. I am involuntarily disclosed (not that I want to live in a closet). I just want to be known by those who have a right to know me. In being known and watched with ever increasing facility, I no longer can say approximately or metaphorically that I own myself. My autonomy, at best precarious or even episodic, is wounded further, my boundaries further effaced. As Robert Frost (in "The Constant Symbol") said about earlier erosions of individuality: "no more invisible means of support, no more invisible motives, no more invisible anything." He was not asking for the ring of Gyges, for the power to be invisible in order to acquire impunity and thereafter commit heinous crimes. No, not at all. How can I think that my human status, part of my dignity as a human being, is respected if I am too often visible, and if some machine knows more about me than I myself know, because it does not forget, but I do? The machine is not like someone who out of fondness for me recalls some flattering detail about me that I had forgotten, or has observed some nice trait of mine that I doubted I had possessed. At the hands of the watchers and knowers I become a child again, but now an unloved foster child, even if not yet abused. I am victimized by a loss of moral rights, even if my constitutional rights are respected. But can constitutional rights really be respected when cognate moral rights are violated? Are constitutional rights safe then?
    On the specific matter of being known in accumulated detail that is instantly retrievable, and transferable to who knows how many agencies and groups and for who knows what purposes, two other consequences are worth mentioning. The first is that accumulated detail about people has the effect of defining them and locking them in that definition. The identity of each is established by imputation, and the identity is equated with an exhaustive account. A person is thought to be known through and through, and without appeal, until perhaps that person has to mount a legal or political challenge to that assumption. The second consequence is that a detailed record follows a person through life, growing old with him or her, yet not losing memory as the person does. A person will not be able to start life over again, free of some of time's filthy load. A person cannot run away or hide, unless prepared to abandon everything familiar and find some alien refuge. There is no escape from a recorded identity, no escape from deeds done long ago that, if wrong, were paid for, or were not wrong but somehow technically incorrect or forgivably careless.
    There is no doubt that the storage and dissemination by police agencies of lifetime records improve the capacity of these agencies to determine the identity of criminals with greater certainty. Not so long ago, The New York Times (March 3, 1999, p. B3) published an account of how a man who was later accused of murdering three people betrayed himself when he was arrested in an unrelated misdemeanor theft case. Detectives had the man, already suspected of murder, unknowingly provide a DNA sample just by drinking from a soda bottle or glass. He was charged with murder on the basis of DNA obtained from his saliva sample.
    I am happy that a murderer was caught. But the story of his self-incrimination distresses me. Not only may the spirit of the Fifth Amendment have been violated by the police technique, but the power of other new techniques that seduce an individual into giving himself away is alarming. This is being watched and known in an extended sense. I think that the greater ease of tracking down criminals through new techniques may reach the point where the struggle against crime has tilted so far in favor of the police that the very texture of life in a supposedly free society is radically altered. I hazard to say that if criminals were always caught, especially with their own cooperation, so to speak, we would no longer be living in a free society, a society where the human status is paramount. What would become of the spirit of the Fourth and Fifth Amendments--these precious and, yes, counterintuitive amendments that mean as much to personhood as any other amendments in the Bill of Rights? Such a society is not yet a police-state, but it erects so sharp a division between the innocent and the guilty that the innocent become too grateful that they are not guilty. They become too anxious to stay that way. There must be a blurred middle ground between guilt and innocence, if innocence is not to become too proud and hence censorious, and punitive or vindictive. Democracy is antithetical to moral rigor; the concept of individual human status cannot survive it. Not that there can ever be perfect deterrence: a new thrill is added to breaking the law when policing is armed with increasingly potent devices of watching and knowing. But the perfection of the apparatus signifies the willed diminishment of human beings. We can be sure that authorities in the United States are working to achieve a world where everyone at birth is fingerprinted and made to leave a DNA deposit, not only a world in which every communication is recorded and can be retrieved. What is left of respect for the human status in all this?
    Suppose I am told that this insistence of mine on personhood, on the human status, sounds adolescent. Only adolescents, some could say, care so much about their dignity and feel insults and degradations when none are intended and none would strike an adult as insulting or degrading. Adolescents worry about insubstantials because their sense of independence is so fragile and their experience of freedom so brief. Why carry on in a way, as some could say I do, that only encourages the adolescent strain that even grown-ups all too often retain? Even worse, why judge society's arrangements from an adolescent perspective, when an adult perspective should be decisive?
    In answer, I would refer to Peter Weir's film, The Truman Show, a film that is sometimes discussed when new technologies of watching and knowing are the subject, and when their full potentiality to control human beings, allegedly for the sake of happiness, is projected. The horror for Truman in a hitherto pleasurable life comes when he realizes that his entire life has been shaped for a mass TV audience. He has been continuously watched and known by an audience; for that to be possible, he has been subjected to complete conditioning by a demiurgical film director who employed a cast of actors to help Truman live out his life to the point of married adulthood as if it were a spontaneous life, and in an uncannily attractive setting, or at least in a very photogenic one. When he learns the truth, despite all precautions, he rebels. He rebels against his pleasurable life because it is a lie. He goes from painless oppression and unsuspected degradation to righteous indignation. He rebels for an adolescent principle, instead of settling for a pleasurable life. He rebels not because he has been badly treated but because he has been "treated." He must overthrow authority because it is authority, benign in effect, but inhuman or superhuman in method and both mercenary and power-drunk in ambition. His relationship to the director is an extreme asymmetry.
    Truman rejects manipulated adulthood and by acting like an adolescent he becomes an adult for the first time. He insists on his personhood or human status. By physical and psychological courage he escapes his enchanted confinement. The irony is that when he gets to the other side of his confinement, when he is able to leave Plato's cave, he finds himself magically deposited in a bar where an audience has been observing him on the screen, and they greet him now with screams of delight at his escape into genuine adulthood. But what shall we say about the audience? Are they manipulated by their entertainers? And are they adults? Do they have a sense of their human status? Or are they children--forever children--who are so enthralled by watching and knowing that they cannot progress to eruptive adolescence? They are safely preserved in a simulacrum of adulthood. I think that an adult version of a disposition toward adolescent sensitivity must be perpetually available if the mentality of personhood is to be safeguarded. We are not really adults otherwise; we are not even democratic citizens. As Emerson says in his essay "Politics," "Good men must not obey the laws too well."
    I have so far been talking about social and cultural tendencies, and I have just isolated a few of them. All go in the direction of enhancing the ability of others to watch us from a certain angle; and to know us so that, above all, we may be known, if not to ourselves. One might say that the result is a world transparent to those who watch and know, and who themselves remain often in secrecy or obscurity. I have talked in a general way, and quite speculatively. You might think that I have talked with a metaphysical vagueness. But the sketch I have offered, if done with serious imperfection, can be done better by others, who can probably provide more than a sketch. All I am sure of is that, the risk of vagueness notwithstanding, the subject of new techniques of watching and knowing is, in part, a philosophical subject. It must be treated philosophically, but of course not only so. The stake is, to say it again, the self-conception that emerges when a society's institutions and practices try to respect personhood. If gradually, but with an apparent inexorability, the spirit of these institutions and practices is undermined by technical advances in watching and knowing--and of course there are many sources of threat to that spirit, not only techniques of watching and knowing--we would have a calamity, even if we were spared other and worse calamities like a police-state or some kind of tyranny or despotism. Insensitive now to painless oppression, however, we may become less sensitive to some future blatant oppression. Whether or not that can happen, there is such a thing as an unfelt or barely sensed calamity, odd as it may seem to speak in this way.
    What are the motives in play of the watchers and knowers? Obviously, the new techniques serve a range of practical purposes, increasing efficiency in achieving some of the standing purposes of state agencies and business enterprises. Or at least that is the usual claim. But does the pursuit of efficiency serve as a cover for other motives, without replacing them? "Lust of the eyes" as the First Epistle of St. John (2:16) puts it? Some voyeurism, some prurience, some profound condescension? Or some insatiable curiosity? Or a nearly all-consuming will to knowledge, a form of rationalist aestheticism? A greed for asymmetrical relationships? Or a pursuit of proficiency for the sake of proficiency, animated by a love of overcoming obstacles in the way of attaining ever greater proficiency, with virtuoso proficiency desired because it stands as a symbol of an extraordinary superiority to ordinary humanity?
    The questions are largely rhetorical. I think that we would tend to agree that these motives are in play. All I ask is that we not assent or stay quiet when others say that all that is involved is the motive of enhanced efficiency. We may not completely understand Heidegger when he says in "The Question Concerning Technology" that the essence of technology is nothing technological. But we must have a glimmer of what he means. Technology, technique, the proliferation of devices--all this is not only problem-solving. It is also problem-creating, challenge-creating, and more than that, it represents an attempt to rise above the level of ordinary humanity. It is semiconscious complicity in hubris, an insolence shared among a few, and distantly admired by most of us.
    But these motives to which I just referred, aren't they motives we all have? Aren't we all prurient, curious beyond our business, in love with power and our own proficiency? Yes, certainly. Yet looked at from the outside, the new techniques take on the appearance of obsession. If there were one mind guiding the development of these new technologies, we would call that mind obsessive. Of course, there is no one mind; there is, instead, a historical cultural project in the West, the labor of many minds with the same commitment that is sustained over time. Few of the participants were or are themselves obsessive in any strict sense. But a cultural project of obsession does not need obsessive practitioners. All that is needed are devoted practitioners who supply their increments of expertise, and who also never stop to examine the nature of the project in which they are engaged. In contrast, most of us are not obsessively bent on watching and knowing countless strangers, however similar to some degree our motives are to those of the new watchers and knowers.
    Suppose, however, it is said that watching and knowing are not only part of the ingrained equipment of any human being but also the specialty of philosophers and poets and novelists--to leave aside journalists. Is there a qualitative difference between the new technicians and our great and good writers? I would answer that the difference is qualitative even though not total. On the one hand, the philosopher, defined as the contemplator of the scene and spectacle of existence, is consumed by the passion to understand so as not to be taken in, and also to be the one on whom nothing is lost. The philosopher does not want to be duped, nor to miss out on what is worthy of attention; the aim is not to feel superior, whatever the philosopher may eventually come to feel, when he observes that most people are much less intensely or comprehensively observant than he is. Similarly, for the novelist who is the creator of characters in patterns of action, and the poet who is the creator of voices and perspectives: they do not watch and try to know human beings to feel superior in secret, but rather to disseminate their discoveries and strengthen their readers, as if writers existed, as Keats suggests, in order to be the friends of their readers.
    We should probably say that the new watchers and knowers are parodies of the philosopher and novelist and poet rolled into one. And just as the philosopher, novelist, and poet is each Godlike in the disposition of intellect, so the ensemble of new techniques, and of techniques irresistibly to come, add up to a parody of God as omniscient, the parodistic realization of God on earth. In an old theological characterization, God can watch and know everything that has happened and is happening and embrace and keep it to mind in the same instant. It is obvious that no single human mind can begin to approach this state. As Jeffrey Rosen puts it in "The Eroded Self," "Even the most sophisticated surveillance technology can't begin to absorb, analyze and understand the sheer volume of information" that is available instantly, much less, cumulatively (2000). Our technological god knows all without knowing that it does so. But it knows enough for its purposes, alas. With regard to a given individual, the watchers and knowers can let nothing go forgotten or undetected; everyone is searched in every religious and secular sense of the world; all the particulars for the day of judgment are assembled. And the state is the god of lesser gods as well as master of us all. It aspires to become a combination of the unmoved mover and the unmoved unmover.
    I have already said that if oppression is not felt as pain, and degradation is not felt at all, the human status of individuals can be seriously assaulted without protest. But suppose that somehow a persuasive public case could be made to convince people that apart from any abuse they feel as abuse, especially as abuse of a guaranteed right already declared, their personhood could still be impaired. There is at least one serious obstacle that remains. I refer to an obvious fact, which is that almost all of us, some of the time or with some part of ourselves, welcome being watched and known by people whom we do not reciprocally watch or know. There may be a loss of appetite in society for remaining private and a consequent unconcern with the new techniques, and techniques still to come. There may be an ebbing appetite for having secrets or even confidentiality, for being invisible or anonymous, for being innocent or hidden. It is as if almost everyone, if only in some moods or phases of life, has an increased desire for exposure and confession to strangers, whether casually met or heaped together in some kind of mass audience. It is as if everyone says to himself or herself, "I don't want knowledge about myself confined merely to those I know and trust. I don't exist unless I'm being watched and unless I'm known in detail by invisible or unnameable or unaccountable forces. They make me feel important; they add bulk or ballast to my ego; they give me a more intense sense of being alive or being me."
    What is involved here? I suggest four elements. First, innate human sociality; second, democratic gregariousness; third, democratic exhibitionism; and last, democratic theatricality. Let me take up these points in order.
    The aspect of innate human sociality that is relevant to our discussion is brought out when we answer the question, Who is the beneficiary of the right of privacy? The judicial answer is every individual person, and by extension, relationships that rights-bearing individuals freely form, such as couples, families, friendships, and various voluntary associations. This means that a person wants to be protected in the right of privacy, as we have been discussing it, not for the sake of one's uninvaded solitude but, instead, for the sake of being in mutually self-chosen company. But that means, in turn, that one defines one's mode of life as living in the attention of others. I believe that this is the way in which most people envisage the right of privacy--to leave aside the Fourth and Fifth Amendments of suspects and defendants. In the public mind, therefore, the case for the benefits of a protected right of privacy is not a case for the inviolability, invisibility, or anonymity of the individual as such so much as it is a case for intimacy and selectivity of company. The case is felt to rest not so much on the integrity or precious mystery of anyone's personality or selfhood as on the right to disclose oneself only to individuals one has chosen, and to set the terms on which one will be known and by whom. Such a right can of course be self-limited by a person's secrecy, hypocrisy, or abandonments. The upshot is that almost all of us want to be watched and known. The ideal though perhaps too flattering assumption of those who framed the right of privacy is that we want to be watched and known only appropriately. In contrast, it is only in an infrequent moment that we respond sympathetically to Rousseau's notion that our degeneration begins when we are seduced away from solitude. (Perhaps a few more such moments would be healthy for the maintenance of the right of privacy.)
    The unit of privacy in practice, as it is often conceptualized, is thus not the individual but the couple, first of all, and then the family; the domain of the right of privacy is the sphere of intimacy, especially, and then the sphere of voluntary associations, which are commonly felt to matter much less. But once we acknowledge this background assumption we then have to make another acknowledgment, namely, that most people would rather be watched and known by anonymous and invisible forces than remain unwatched and unknown altogether, if they had to choose. Because most people cannot live to themselves, their resistance to being watched and known by such forces is not likely to be strong in the absence of some specific abuse of a right or harm to some other important interest. Given our innate sociality, just barely and only occasionally held in check, the idea of personhood or human status must appear vaporous when stated abstractly and becomes real only in the face of abuse and violation. Of course, some people have a strong wish to draw the line and remain watched and known only by those they choose. But even they, if they have no taste for solitude, may find a guarded pleasure in being watched and known nonselectively and will surely find little trouble in putting up with unfelt or painless invasions of privacy for the sake of the immense advantages of the new techniques of communication, information, and entertainment.
    The second clement that facilitates acceptance of being watched and known by invisible and anonymous forces is democratic gregariousness. I say democratic gregariousness because I think that democratic culture encourages easy contact with strangers and not only with, say, neighbors or even fellow citizens. Exchanges of intimate details with perfect strangers, casually and even anonymously, is an everyday occurrence, and not just with travelers. Such quick, easy, and rarely remembered intimacy, which almost every democratic person engages in, has undeniable charm. Perhaps it has more than charm: it is a sign of immediate acceptance of another human being on experientially equal terms. Lines of class, ethnicity, color, and religion are crossed with such frequency and rapidity that they grow fainter and, in the long run, somewhat less important. Greater tolerance ensues. (The line or lines of gender may still be harder to cross in this respect.) Furthermore, such exposure to strangers, when they willingly receive and even return it, manifests a democratic trust in others, just as a conditioned reserve may indicate a fearful guardedness.
    One complaint about gregariousness is that another line is crossed that should be respected more often. Democratic culture encourages people to act in public settings as if they were in the privacy of their homes. A certain slovenliness characterizes conduct in theaters, restaurants, and public facilities of various sorts. (I do not, of course, refer to places where crowds gather, such as amusement parks, beaches, sports stadiums, where people think they are supposed to respond to the offered activity or spectacle with a maximum of collectivized individual display.) People act as if it does not matter that they are being watched and their unaesthetic details known as they relax entirely into private personae. People in small groups--not people who are alone--behave as if others around them exist minimally or abstractly. These people either are begging for attention or are unaware that the strangers, in whose midst they find themselves, are as real as themselves. They privatize public spaces. In this privatization lies an obliviousness of the very idea of publicness and of the idea, also, that others are strangers. As strangers, they should retain some aura, some distance, some sense that they have a moral right to fences and boundaries against invasion by gross indecorum. But what if the strangers do not mind? What matters to my argument is that when so many of us behave in this fashion--when manners are deemed odious because they are experienced not only as affectation but as impediments to doing what one wants and being as one happens to want to be--then an aversion to invading and being invaded by others who have no relationship of intimacy or association to oneself is greatly weakened. The slovenly side of gregariousness makes it harder to defend the right of privacy in the absence of abuse and violation.
    The third element is democratic exhibitionism, a tendency that is often remarked and talked about these days. I have nothing to add, except to say that a phenomenology of this sort of exhibitionism is needed and probably not as easy to produce as is sometimes thought. What shall we make of the delight that some people take in displaying their secrets as well as their obvious oddness on talk shows? For our purposes, one point to make is that when the worst is disclosed to an audience of millions, what room is left for privacy, what need for it? I admire the kind of courage these participants possess. But if they volunteer their secrets and ask to be watched and known, to be discussed and even envied, as they go about baring themselves, as they go about converting themselves with a quiet desperation or deliberation into freaks, the disquiet occasioned by such concerns as ubiquitous camera surveillance and the storage and retrieval of accumulated detail about everyone seem almost lightweight phenomena in comparison. What really matters is the motive for such displays.
    To call the participants exhibitionists gives them a pejorative name without explaining why they act as they do. I do not mean that a single explanation covers all the participants, or even one of them. Surely, a desire for celebrity on any terms and no matter how fleeting is commonly present. Is it possible to say more about what culturally drives them? Is this kind of exhibitionism only an exaggerated form of gregariousness, or something mostly discontinuous? In either case, it seems to go well with democratic culture at its most demotic. Is there a necessary linkage between democracy--in its demotic, not yet democratically enhanced nature--and shamelessness? In Reflections on the Revolution in France, Edmund Burke says that a perfect democracy is the most shameless thing in the world. Let us say, instead, that an unperfected democracy is just about as shameless as we could want. By unperfected democracy I mean a democratic culture that is painfully struggling to give birth to itself in a hitherto authoritarian and hierarchical society, or an established democratic culture that always holds within itself atavisms and anomalies, or just plain forgetfulness of or indifference to its own best potentialities. Talk shows grow out of democratic culture, but where the culture is still struggling to rise, not above itself, but into itself. The danger of the demotic, which is only proto- or pseudo-democratic, and which is vividly illustrated by talk shows, is that it injures the human status--not in the sense that the participants in talk shows are undignified in the usual sense, but in the root sense that if their behavior were the best that people were capable of, the idea of the equal human status of every individual could not have arisen, and with it the theory of rights, including the right of privacy. Personhood is attributed to every human being, apart from all admirable or only meritorious conduct; but if the great majority of human beings had never shown traces of at least meritoriousness, how could the idea of equal human status ever have emerged? If all that democracy ever was or could be was demotic, how could it have inspired and continue to inspire such devotion? If the new techniques of watching and knowing owe some part of their tremendous development to the spirit of democracy, must not the distinction between the demotic and democratic be insisted on? Must not objection be raised when the demotic asserts itself so vigorously, and consequently throws its weight behind the assaults on the fundamental right of privacy that we are discussing? When talk shows abound, reinforced by so-called reality TV and comparable phenomena on the Internet, the difficulty of objecting to being watched and known by invisible and anonymous forces on the grounds of personhood or human status becomes greater.
    A fourth element that may help to account for the ebbing of an appetite or taste for privacy is democratic theatricality. There may be continuity between theatricality and exhibitionism as there is between exhibitionism and gregariousness. Now, if democracy intensifies innate human sociability in the direction of gregariousness and exhibitionism throughout an entire society rather than confining them to particular classes, it introduces its own kind of theatricality. Common to all elements that I have mentioned is a dislike of too much privacy, understood as either solitude or company that is chosen and selective. We might say that all these elements crave audiences of one sort or another, audiences that are larger and grander than oneself or oneself together with a few others. But I find in theatricality a disposition to which I am, consistently or not, quite sympathetic. In an authoritarian and hierarchical society, a person plays one's role as a member of a class or caste; in a democracy, one plays oneself as an individual personality, converts oneself into a style or role. This latter is the democratic sort of theatricality. (Peter Weir's Truman played himself without knowing it.)
    But what does it mean to say that one plays oneself? Democracy is supposedly committed to being oneself in naturalness and spontaneity. That may be true in some parts of life, especially the intimate ones, but I would not exaggerate the presence of either spontaneity or naturalness in intimacy, either. Be that as it may, the sense I infer is that most people think that only by effort is one able to appear as one's real self because one's real self can only be one's best self. To be real to oneself one must be real to others. One can be real to others only if one puts on a performance, only if one performs oneself. This is not hypocrisy; it is not an artifice of feigning. It is too exuberant for that. One is oneself when one gives as it were a theatrical imitation of oneself. One tries to have moments when one conducts oneself as if one were presenting oneself on a special occasion. Much of everyday life is otherwise too routinized or fragmentary to call oneself out of one. This mentality is not mere narcissism, but a craving for the aestheticized reality of one's self. Even the examples of gregariousness and exhibitionism that I gave partake perhaps of the sentiment of theatricality; namely, unless one sometimes imagines oneself at the center of the attention of others, innumerable and unknown others, one would be obscure to oneself, not just to others. But if I am near a truth, then we can see that being watched and known by invisible and anonymous forces, in the absence of abuse or molestation, can be thought to be very serious with only great difficulty. The prevalent feeling in a democracy is that each of us exists as a self to be watched and known, almost as much as possible. Being watched and known is democratic discipline and the preliminary to making oneself worthy of attention.
    Paul Romer, the producer who developed the Big Brother reality TV program, compared the European and American contestants. He is reported as saying, "In the American house, our contestants never forget they're on camera.... In Europe they stopped thinking of the camera very quickly." How to account for what the Times's reporter Bill Carter calls the "extreme media awareness of the United States contestants"? Another producer had the answer: Americans "are all trying to produce themselves" (The New York Times, Sept. 4, 2000, pp. E1/9). Why make a fuss, then, about being watched and known by the practitioners of the new techniques, unless and until some substantial, not metaphysical, menace presents itself? I've tried to give the answer to that question throughout this paper.
    I am left with the thought that a fallback position is needed. If you think with me that personhood or human status is damaged by the simple fact that a propitiously situated few place us under camera surveillance and acquire and store countless details on each of us without our permission or even knowledge, then we must be prepared to think tactically. We must sketch an argument in whose truth we believe but that does not rely on the idea of personhood or human status in the absence of felt oppression or abuse. The postulate would be that the powers of surveillance and accumulated information, and exemplified not just by camera surveillance and databases, will inevitably be used to oppress whole populations and violate their rights, and thus deny their human status. The tactical argument would seek to present a comprehensive picture of what these new powers have so far achieved, and then project them. The underlying thought is that every power is eventually abused, and if crises do not favor power's use, pretexts will be found. I offer a version of the slippery-slope kind of argument. The terminus ad quem is totalist tyranny. But there are intermediate steps between what we have now and the worst possible outcome. The trouble is that democracy, in the opinion of Tocqueville, Mill and others, even before the technological enhancement of the powers of surveillance and information, tends to a condition that Tocqueville calls democratic despotism, which is not a cruel and grinding despotism, but rather a fairly pleasurable one. Tocqueville says, "It would seem that if despotism were to be established among the democratic nations of our days, it might assume a different character; it would be more extensive and more mild; it would degrade men without tormenting them.... Among this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate.... For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness.... The principle of equality has prepared men for these things..." (1954). Aspects of the welfare state already show more than traces of such a despotism. To be sure, the subject is worried about, and not just by people whose only concern is not to be taxed as much as they are. We have experiences of being smothered in a bureaucratic blanket. Democratic despotism is brought closer in time to us in Roderick Seidenberg's remarkably prescient book, Post-Historic Man (1954 [1950]). It is not, however, the worst condition. In an increasingly crowded world, we could imagine what D. H. Lawrence calls a "soft hell," a strict regimentation that hems everyone in and rations goods and feelings carefully. The soft hell is conveyed best by Eugene Zamiatin's futurist novel, We (1959 [1924]), or in an even softer way by Aldous Huxley's Brave New World (1953 [1932]). And at the end of the journey lies total domination, undisguisedly tyrannical, if not necessarily bent on totalitarian exterminationism.
    The powers for total domination are insidiously being heaped up, not with total domination as a conscious purpose but as an expansive, incrementally adjusted, and not fully intended or admitted purpose. But a trauma can make the means of control irreversibly tyrannical. In fact, what exists potentially for an entire population is already actual for quite a number of types of people: naturalized citizens, immigrants (legal and illegal), suspects, and prisoners. Frequently, they are subjected to abuse that violates their personhood with judicial acquiescence, and we are tempted to say that they are being experimented on so that authorities may learn how to dominate a whole population in the future. We are entitled to make much of the fact that officials in a constitutional democracy can be so alienated from the spirit of the laws as to treat any person with such calculated (more calculated than impulsive) disregard of the human status. What does such disregard, even though selective, indicate about the authenticity of the political system? How can a supposedly authentic constitutional democracy contain pockets of tyranny or despotism, not to mention the atrocities it commits abroad? In any case, we cannot prophesy; we can only have our dreads. But, to repeat, the human record is clear on one thing: every power or capacity is eventually abused. The tactical truth is that present dangers are pregnant with future disasters. The tactical truth is the most important truth. We may not be heard when we say that the present situation is in itself, without further technological change, a grave assault on the human status, even though violations of an extended right of privacy have not yet been declared or even felt. But we can be heard if we make much of the potentiality that already exists for general and unmistakable oppression.

REFERENCES
    Huxley, Aldous. Brave New World. New York: Bantam, 1953 [1932].
    Rosen, Jeffrey. "The Eroded Self." The New York Times Magazine, April 30, 2000: 66.
    Seidenberg, Roderick. Post-Historic Man. Boston: Beacon, 1954 [1950].
    Tocqueville, Alexis. Democracy in America (1835, 1840). Vol. 2. Trans. Reeve/Bowen. New York: Vintage, 1954.
    Zamiatin, Eugene. We, New York: Dutton, 1959 [1924].

PART VII

IS PRIVACY NOW POSSIBLE? A DISCUSSION

INTRODUCTION
    BY KENNETH PREWITT
    THE question before the panel is of course rhetorical. Privacy is simultaneously possible and impossible, depending on shifting legal norms, public expectations, and technological developments. It also depends on whether our own social status invites intrusion. Criminals, though they try to escape scrutiny, are more vulnerable to surveillance than the law-abiding. Privacy then varies, depending on what actions, or traits, are "criminalized"--for example, being HIV positive? Or, a different example, the "shop until you drop" crowd is vulnerable to the commercialization of information about their buying habits. Those who shop less, because they are poor or because they don't want stuff cluttering up their life, are less interesting to marketers and presumably their buying habits are less scrutinized, repackaged, and sold.
    Perhaps a useful way to frame the issue is to consider the borders that separate three spheres: the market economy, the state, and what is now called civil society. Public policy is largely the ongoing negotiation among the three spheres with respect to how much of what activity will be performed or provided where, and how resources are shifted from one sphere to another. The boundaries between these spheres are continually being renegotiated, with rather large shifts under way at present as state-controlled economies give way to liberal, that is, private for-profit economic activity; and as the democratic transition reduces the scope of authoritarian state power in favor of a greater role by nonstate civil society actors.
    Of course, smaller-scale negotiations and modifications are continually at play, illustrated by the privatization surge in many advanced industrial states. Medical services, long dominated by the public and the nonprofit sector, are increasingly managed by the for-profit sector. The boundary between church and state was not fixed once and for all by the Reformation, but remains in flux as, for example, in the current debate in United States politics about whether faith-based organizations should receive tax dollars to provide social services.
    Attitudes toward and protection of privacy are caught up in these constant negotiations at the borders of market, state, and society. Consider the market. The new knowledge economy is information hungry. Information is its infrastructure just as farm to market transport was the infrastructure for the agricultural economy or the telegraph and railroads became the infrastructure for the emergence of the industrial economy. The information density of the knowledge economy is in large part based on assembling millions and millions of discrete facts about individuals: where we live, what we buy, how we travel, what we watch. The knowledge economy inevitably shrinks the sphere in which privacy flourishes.
    Or consider the state. Its appetite for detailed information about individual members of society derives from two of the most critical functions we assign to government: security from foreign threat or from criminal assault on person or property; and, ever more targeted provision of social services. When it is time to collect your social security check, you want the state to have maintained an accurate accounting of your earnings history and disabilities.
    It is at the borders each of us shares with the market and with the state that we depend on the law--which defines the borders and regulates transactions across them--to keep up with the rapid changes in technology.
    With these notions in mind, we might reframe the title of this session as follows: What laws and policies are called for to make privacy possible given the interaction of new information and surveillance technologies with shifting understandings of what is the market, what is the state, and what is civil society?

IS PRIVACY NOW POSSIBLE? A BRIEF HISTORY OF AN OBSESSION
    ANITA L. ALLEN
    The question I am asked to address is whether privacy is now possible. Privacy is still possible, of course. It is still possible to spend an hour alone with a book behind closed doors, an hour in a garden secreted in the corner of a backyard, an hour in bed with a lover. Economic class may determine whether one can buy a book or a garden; gender may determine whether one is nursing as one reads; and religion may determine how guiltless the tryst. But privacy is still possible.
Privacy is also still possible, unfortunately, because the sick die alone in hospital rooms crowded with machines; the seemingly incorrigible languish in solitary prison cells; the vulnerable are harassed and abused at work and in their own homes. Privacy is still possible, though, to some extent, one must wish that privacy were less possible, accountability more exacting. Those who injure and abuse should be exposed and brought to justice. We need to reexamine institutions and practices that encourage inhumane social isolation.
    Although, for better and for worse, privacy is plainly still possible, this is an age characterized by anxious discourse about "the end of privacy" being upon us. I find peculiar two aspects of this end-of-privacy anxiety.
    The first peculiarity is that the anxiety sometimes seems out of proportion to the threat. The affluent occupy 4,000-square-foot homes nestled among mature trees in bucolic suburbs; they work in those homes and in spacious private offices; they drive alone in commodious sedans; they stroll about anonymously in urban centers; they vacation at remote resorts; they date, marry, and divorce whom they please. And yet they decry their loss of privacy. To be sure, the Internet compromises informational privacy, and there are limits on certain important choices (try to marry your lesbian lover in South Carolina). But in the United States, the affluent, and a great chunk of the middle and working classes, have considerable physical privacy and personal autonomy.
    The second peculiarity about the anxiety of the age is that all the talk about the involuntary loss of privacy coincides with a good deal of voluntary waiver and alienation of privacy. One wonders sometimes if Americans are losing the taste for privacy (Allen, 1999a). Scarcely any topic, from diseases to divorces, can be discussed at the water cooler. The family secret, on behalf of which Louis Brandeis and Samuel Warren invented the right of privacy, is just another commodity, an eventual disclosure awaiting a lucrative media contract (Warren and Brandeis, 1890). A hundred years ago a woman might have sued to ease the shame of a stranger witnessing the birth of her child; today she might give birth live on the World Wide Web (Allen, 2000).
    As a culture, we are obsessed with privacy, and so we express outrage when others invade our privacy; but we are equally obsessed with the private, and so we are mass consumers of other people's private lives and willing purveyors of our own. How did we come to be this way?
    The obsession with privacy began in the 1960s (Westin, 1967). That decade saw the United States Supreme Court popularize the idea of legal rights to privacy. The court relied on the concept of constitutional rights to privacy to set the standards for lawful search and seizure (Katz v. United States, 1967), and to overturn laws criminalizing birth control (Griswold v. Connecticut, 1965), interracial marriage (Loving v. Virginia, 1967), the use of pornography in the home (Stanley v. Georgia, 1969), and abortion (Roe v. Wade, 1972). These precedents inspired later efforts to establish sexual privacy rights for gays and lesbians, including Bowers v. Hardwick (1986).
    The escalation of the Cold War, the conflict in Vietnam, and racial turmoil over civil rights led Americans to express concern about the government's techniques of espionage, surveillance, and social control. The surveillance technologies used for spying--which could potentially be used to monitor the behavior of ordinary citizens and suspected criminals--raised concern about the fate of freedom and democracy in a society in which the details of private life could be discerned with the help of covert wiretapping, and powerful lenses, microphones, and cameras (Alderman and Kennedy, 1995). Congress enacted the Omnibus Crime Control and Safe Streets Act in 1968, permitting--but setting limits on--wiretapping and certain other forms of surveillance. The problem of electronic surveillance was addressed again in major legislation, the Electronic Communications Privacy Act, in the 1980s.
    By 1970 some Americans had come to see high-speed computers as potential threats to informational privacy (Agre and Rotenberg, 1997). Concerns over "data banks" containing personal profiles emerged. The potential for the unfair use of personal information and misinformation stored in commercial and government data banks led to federal laws, including the Privacy Act of 1974, the Family Educational Rights and Privacy Act of 1974, and the Right to Financial Privacy Act of 1978. A national commission formed by federal lawmakers, the U.S. Privacy Protection Study Commission, published its two-volume report, Personal Privacy in an Information Society in 1977. The report recommended that "fair information practices" govern the collection, storage, and use of personal information about individuals (Schwartz and Reidenberg, 1996).
    A further development in the decades of the 1960s and 1970s increased interest in privacy: advances in medicine and health care. Advances in these areas enabled physicians to prolong the lives of terminally ill and critically injured patients and fragile newborns. The ability to extend life created difficult bioethical questions regarding the allocation of decision-making authority about matters of life and death among patients, health care providers, family members, and insurers. Conceptions of privacy and autonomy were adduced by some ethicists as relevant to the assignment of authority and responsibility. Medical advances in the 1960s and 1970s also enabled women and their physicians to prevent and safely terminate pregnancy. Access to birth control and abortions was defended in the courts, legislatures, and on college campuses, and championed as a matter of women's privacy rights. The AIDS epidemic and the Human Genome Project have also increased interest in the use and abuse of medical information (Allen, 1997).
    These developments put privacy on the radar screen. Further changes have kept it there. One is the popularity of the Internet as a social and commercial setting that exposes us to privacy losses. Another development is the aggressive, sensational, and confessional television journalism that gained in popularity after 1990 and that has raised concerns about the privacy that is stolen and the privacy that is given away.
    The sexual revolution, the feminist movement, and the entry of women into the workforce and the academy resulted in a greater emphasis in public life and the media on what were traditionally private matters. After Congressman Wilbur Mill's altercation with an exotic dancer in the Washington, D.C., tidal basin, the media no longer turned a blind eye to the personal lives of public officials (Allen, 1999b). The Watergate scandal had established investigative journalism as a major political force within American life. After Watergate, however, the scope of investigative journalism broadened and took on a more commercial slant. Journalists engaged in made-for-prime-time undercover efforts to reveal corporate and professional wrongdoing. Camera-bearing journalists rode along with law enforcers and medical rescue personnel. In addition, daily television shows aimed at women during which guests reveal family problems, medical concerns, and personal relationships gained in popularity. These spawned evening programming aimed at men and women in which ordinary people confront one another about unresolved interpersonal conflicts.
    Other popular television programs featured the personal challenges and conflicts of children at camp and adults living together in communal houses. A number of programs based on European models appeared in 2000, in which people lived in isolated settings with cameras trained on them 24 hours a day for extended periods. Thanks to television, events, including the Clarence Thomas hearings, the O. J. Simpson murder trial, the impeachment trial of President William J. Clinton, and the deaths of Princess Diana and John F. Kennedy, Jr., made the intimate lives of public figures and public officials everyone's business. Important ethical issues about the value of privacy and celebrity were raised by these developments.
    I began teaching and writing about privacy 15 years ago, before the Internet was in our homes and before privacy was a household world. At that time my main concern was how best to address the unequal distribution of privacy and autonomy in our society. Women, I thought, had too little of the privacy and private choice they needed to live up to their potential as the equals of men (Allen, 1988).
    The current obsession with privacy and its twin obsession with the private have led me to two principal queries. First, is the taste for privacy declining to intolerable limits? Should the liberal and civil libertarian even care? My view is that both the unwanted gaze lamented by Jeffrey Rosen (2000) and the wanted gaze are problems for any brand of liberalism that takes privacy--the experience of it, not just the choice to experience it--as essential for the independence of mind and spirit called for by a robust democracy. Second, granted that privacy is important, is accountability not important too, as Amitai Etzioni (1999) has stressed (though on grounds and in contexts with which one might take issue)? For all the talk about privacy, we are in fact held accountable for nearly every aspect of private life--if not by the general public or our employers, then by our families, friends, and ethnic and religious groups. The justifications for accountability for personal life merit further study. In the meantime the obsession with privacy and the private continues.

REFERENCES
    Agre, Philip E. and Marc Rotenberg, eds. Technology and Privacy: The New Landscape. Cambridge: MIT Press, 1997.
    Alderman, Ellen and Caroline Kennedy. The Right to Privacy. New York: Random House, 1995.
    Allen, Anita L. Uneasy Access: Privacy for Women in a Free Society. Totowa, N.J.: Rowman and Littiefield, 1988.
    Allen, Anita L. "Genetic Privacy: Emerging Concepts and Values." Genetic Secrets. Ed. Mark Rothstein. New Haven: Yale University Press, 1997.
    Allen, Anita L. "Coercing Privacy." William and Mary Law Review 40:3 (March 1999a): 723-57.
    Allen, Anita L. "Privacy and the Public Official: Talking About Sex as a Dilemma for Democracy." George Washington Law Review 67:5/6 (June/August 1999b): 1165-82.
    Allen, Anita L. "Gender, Privacy and Cyberspace." Stanford Law Review 52:2 (May 2000): 1175-1200.
    Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.
    Rosen, Jeffrey. The Unwanted Gaze. New York: Random House, 2000.
    Schwartz, Paul M., and Joel R. Reidenberg. Data Privacy Law. Charlottesville, VA.: Michie, 1996.
    Warren, Samuel and Louis D. Brandeis. "The Right to Privacy." Harvard Law Review 4 (1890): 193-220.
    Westin, Alan. Privacy and Freedom. New York: Atheneum, 1967.

IS PRIVACY STILL POSSIBLE IN THE TWENTY-FIRST CENTURY?
    JERRY BERMAN AND PAUIA BRUENING
    Is privacy a realistic possibility in the twenty-first century? Will the "Digital Age" be one in which individuals maintain, lose, or gain control over information about themselves? Will it be possible to preserve a protected sphere from unreasonable government and private sector intrusion?
    Without question, the growth of government and commercial transactions and the increase in technological developments over the last 50 years have heightened threats to privacy. Today the Internet accelerates the trend toward increased information collection and facilitates unprecedented flows of personal information. Cellular telephones and other wireless communication technologies generate information about an individual's location and movements in a manner not possible until now. Electronic communication systems generate vast quantities of transactional data that can be readily collected and analyzed. And law enforcement agencies, particularly at the federal level, place increasing emphasis on electronic surveillance.
    Confronted by these challenges, there are still grounds for optimism. While dangers to privacy capture our attention, they sometimes lead us to understate the unprecedented gains in privacy protection that have also been achieved over the last half of the twentieth century. In many cases the legal system has laid a foundation for privacy protection through court decisions, state and federal legislation, and self-regulation. For example:
    * tapping personal telephone calls without a warrant was not considered unconstitutional until 1967;
    * national security surveillance gained considerable oversight in the post-Watergate era; during the Vietnam era millions of citizens were watched by federal authorities;
    * important privacy protections were provided for electronic communications in 1986; and
    * although records have never been given constitutional protections, Congress has stepped in to protect privacy by passing legislation that includes the Fair Credit Reporting Act, the Privacy Act, and the Video Privacy Protection Act.
    In many instances, users of new technologies have taken their privacy into their own hands. They have demanded and availed themselves of powerful new technologies to protect their privacy. And individuals have found--and used--the avenues afforded them by new communications media to make vocal their demands for privacy. New technologies and standards that enable users to protect their privacy are on the way.
    These privacy gains can be augmented and many threats to privacy can be overcome if citizens band together for reform and enlightened policy. The hope for progress, in sum, lies in the hands of engaged citizens who avail themselves of the legal, technological, and political opportunities to act in the marketplace and the political arena. Advocates, committed to reform, must communicate that promise to the public. To do otherwise risks convincing individuals that they are powerless in the face of the rise of digital technology and that their only choice in the era of information is to do nothing. Recent history, technological developments, and the action of an informed public make the case for something different: given the necessary legal and technological tools and a clear voice, citizens can demand and achieve good privacy protection. The answer to whether privacy can still be protected is an emphatic yes. What is critical in making privacy a reality in the twenty-first century is the conviction of citizens that privacy is possible.

WHAT DO WE TALK ABOUT WHEN WE TALK ABOUT PRIVACY?
    In the United States, the concept of privacy has evolved since it was first articulated by Justice Brandeis in 1898. His definition of privacy--"The right to be let alone" (Brandeis and Warren, 1890)--has been influential for nearly a century. In the 1960s, 1970s, and 1980s, the proliferation of information technology (and concurrent developments in the law of reproductive and sexual liberties) prompted further and more sophisticated legal inquiry into the meaning of privacy. Justice Brandeis's vision of being "let alone" no longer suffices to define the concept of privacy in today's digital environment, where personal information can be transported and distributed around the world in seconds.
    At the end of 2000, ideas about privacy are more complex, reflecting the rapid and remarkable advances in computing that have made possible both unprecedented monitoring and the unprecedented collection, storage, manipulation, and sharing of data.
    Today, when we talk about privacy, we are often talking about personal autonomy as it relates to information about an individual. Privacy entails an individual's right to control the collection and use of his or her personal information, even after he or she discloses it to others. When individuals provide information to a doctor, a merchant, or a bank, they expect that those professionals or companies will collect the information they need to deliver a service and use it for that sole purpose. Individuals expect that they have the right to object to any further use. Implementation of principles of fair information practices--notice, choice, access, security, and enforcement--is key to preserving this autonomy by ensuring that an individual's privacy interests in his or her personal information are protected.(FN1)
Privacy today also refers to protection from government surveillance. The Fourth Amendment, originally intended to protect citizens from physical searches and seizures, establishes an expectation of privacy in communications as well. New technologies that enhance the ability of law enforcement to monitor communications and compile an array of information about an individual test the limits of Fourth Amendment protections and require that we revisit and redefine our established ideas about this constitutional protection.

THREATS TO PRIVACY
    Advances in communications technologies over the last half century significantly challenge individual privacy. Deployment of rapid and powerful computing technologies has vastly enhanced the ability to collect, store, link, and share personal information. This ability to manipulate information has played a critical role in reshaping the American economy, making it possible to predict consumer demand, manage inventories, serve individual consumer requirements, and tailor marketing techniques. But to do this successfully, businesses require and use information about individuals, which means that the demand for personal information, and business efforts to acquire it from customers, constantly increase.
    Undoubtedly, the Internet has made this kind of data collection and analysis easier and more efficient. Rather than rely on secondary sources of consumer information, or engage in cumbersome telephone and mail-in information collection practices, companies can collect data online, through registration and as a transaction is carried out. Technologies such as "cookies," written directly onto a user's hard drive, enable websites to collect information about online activities and store it for future use. Using cookies, companies can track a consumer's online activities, creating a wealth of behavioral and preference information. This information can be collected over multiple websites, potentially creating a rich dossier about consumers, including their preferences and their online behavior.
    Cellular networks generate data by collecting information about the cell site and location of the person making or receiving a call. Location information may be captured when the phone is merely on--that is, even if it is not handling a call. Both government and the private sector are interested in this location information. While the government seeks to build added surveillance features into the network and ensure that it can access the increasingly detailed data the network captures, the private sector is using this new information to provide emergency "911" services and is considering its potential for advertising.
    Enhancements to law enforcement surveillance capabilities also raise serious privacy concerns. Wireless services provide phones that are readily tapped at central switches. Wireless phone location information generated when a person makes or receives a call can be obtained by law enforcement by subpoena or court order. Email messages are in some respects easier to intercept than regular mail. Technology has freed law enforcement intercepts from the constraints of geography, allowing intercepted communications to be transported hundreds or thousands of miles to a monitoring facility. And computer analysis allows agencies to review vast amounts of information about personal communications patterns far more easily.

A LOOK AT HISTORY
    Although threats to privacy have loomed large in recent decades, advances in privacy have also been significant. If, when we talk about privacy, we mean personal autonomy and protection against unwarranted government surveillance, recent history gives us reason to be hopeful about the future of privacy.

LIMITS ON ELECTRONIC SURVEILLANCE
    In the landmark Berger v. New York (1967) and Katz v. United States (1967) cases, the Supreme Court ruled that electronic surveillance constituted search and seizure and was covered by the privacy protections of the Fourth Amendment. In Berger, the court condemned lengthy, continuous, or indiscriminate electronic surveillance,(FN2) but in Katz, the court indicated that a short surveillance, narrowly focused on interception of a few conversations, was constitutionally acceptable if approved by a judge in advance and based on a special showing of need. Congress responded to these rulings by regulating wiretapping, establishing a system of protections intended to compensate for the intrusive aspects of electronic surveillance. According to the Senate report, the legislation had "as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized" (U.S. Senate, 1968: 66).
    In 1972, the government took first steps to address the collection and storage of information through computer technologies. Elliot L. Richardson, secretary of the Department of Health Education and Welfare, appointed an Advisory Committee on Automated Personal Data Systems to explore the impact of computerized record keeping on individuals. In the committee's report, published a year later, the advisory committee proposed a code of fair information practices. These principles form the basis of the Privacy Act of 1974, a response to privacy concerns raised by Watergate-era abuses that addressed collection of information by the federal government. Creating the principles of fair information practices proved to be seminal work; they have formed the basis for all subsequent codes and laws related to information collection at the state and federal level and in international agreements and treaties.
    Congress acted to regulate wiretapping in national security cases in 1978 through another statute, the Foreign Intelligence Surveillance Act (FISA). In 1986 Congress addressed the challenges to privacy presented by the emergence of wireless services and the digital era with the adoption of the Electronic Communications Privacy Act (ECPA). ECPA addressed wireless voice communications and electronic communications of a nonvoice nature, such as email or other computer-to-computer transmissions. ECPA was intended to reestablish the balance between privacy and law enforcement, which had been tipped by the development of communications and computer technology and changes in the structure of the communications industry.

LEGISLATIVE ADVANCES IN INFORMATION PRIVACY
    While gains in privacy protection in the 1970s focused on limiting government surveillance, the rapid advances in computing and in Internet communications and commerce have turned the focus toward information privacy. In the late 1990s, individuals achieved new gains in the privacy of personal information. More work toward legislative protection remains to be done.
    Medical Information. In the early 1990s society witnessed tremendous changes in both the collection and the use of health information. The transition from fee-for-service health care to managed care led to demand for unprecedented depth and breadth of personal information. At the same time the environment for information began to move rapidly from paper forms to electronic media, giving organizations a greater ability to tie formerly distinct information together and send it easily through different sources. To address theses concerns, the Clinton administration issued new rules under the 1996 Health Insurance Portability and Accountability Act to protect the privacy of medical records. This set the first comprehensive federal standards for transactions that, until then, were regulated by a patchwork of state laws.
    Children. Congress passed the Children's Online Privacy Protection Act (COPPA) to protect children's personal information from its collection and misuse by commercial websites.(FN3) COPPA, which went into effect on April 21, 2000, requires commercial websites and other online services directed at children 12 and under, or that collect information regarding users' ages, to provide parents with notice of their information practices and obtain parental consent prior to the collection of personal information from children.
    Consumer Information. The late 1990s brought the first steps toward protection of information collected from consumers online. Efforts on the part of government and business to require that companies doing business online comply with fair information practices represent an unprecedented step toward empowering consumers to protect the privacy of their personal information. In the past, information collected from consumers online or offline was not subject to fair information practices--consumers received no notice about a company's information policy, were afforded no choice about how the information might be used, and had no recourse when the privacy of their information was not respected. Importantly, consumers had no avenue for redress when information about them had been used improperly. The advent of the Internet brought a new focus on information collection practices and new self regulatory oversight.
    As the debate continues about protecting consumer information, growing effort is being directed toward baseline legislation requiring companies to comply with fair information practices and to submit to a dispute resolution process. For the first time, we are on the way to investing individuals with rights in their information and with an avenue of recourse for privacy violations.

THE PROMISE OF TECHNOLOGICAL TOOLS FOR PRIVACY
    Progress in law is only one area in which privacy has been enhanced in the last century. Applications of technology that limit the collection of transactional information that can be tied to individuals has proliferated, giving individuals tools to protect their own privacy. From anonymous mailers and web browsers that allow individuals to interact anonymously to encryption programs that protect email messages as they pass through the network, individuals can harness the technology to promote their privacy.
    Some tools developed to protect privacy exploit the decentralized and open nature of the Internet. These tools may limit the disclosure of information likely to reveal identity, or decouple this identity from other information. Others create cashlike payment mechanisms that provide anonymity to individual users, vastly reducing the need to collect and reveal identity information.
    Encryption. Encryption tools provide an easy and inexpensive way for a sender to protect information by encoding information so that only a recipient with the proper key can decode it.
    Encryption is particularly important because of the inherent difficulties of securing the new digital media. The open decentralized architecture that is the Internet's greatest strength also makes it hard to secure. Internet communications often travel "in the clear" over many different computers in an unpredictable path, leaving them open for interception. An email message from Washington to Geneva might pass through New York one day or Nairobi the next--making it susceptible to interception in any country where lax privacy standards leave it unprotected. Encryption provides one of the only ways for computer users to guarantee that their sensitive data remains secure regardless of what network--or what country--it might pass through.
    The recent relaxation of export laws in the United States should ensure that stronger encryption technologies will be built into commercial products. As this begins to occur, it will be important to educate consumers on how they can protect themselves using these tools.
    The Platform for Privacy Preferences. Developed by the World Wide Web Consortium, the Platform for Privacy Preferences (P3P) is emerging as an industry standard that provides a simple, automated way for users to gain more control over the use of personal information on websites they visit. P3P-enabled websites make information about a site's privacy policies available in a standard, machine-readable format. The P3P standard is designed to automatically communicate to users a website's stated privacy policies and how they compare with the user's own policy preferences. Users are then able to make choices about whether to visit a website on the basis of the site's privacy policy.
    P3P does not set minimum standards for privacy, nor can it monitor whether sites adhere to their own stated procedures. However, P3P technologies give control to web users who want to decide whether and under what circumstances to disclose personal information.

THE VOICE OF EMPOWERED INDIVIDUALS
    Equally important to the strides in privacy is the voice of individuals.
    Using email, websites, listservers, and newsgroups, individuals connected to the Internet are able to quickly respond to perceived threats to privacy. Individuals protested when Internet advertising company DoubleClick's plan to link personally identifiable information collected offline with that collected online was revealed. Negative media coverage, coupled with plummeting stock prices, forced DoubleClick to pull back from its plan. Similarly, when Intel released its Pentium III microprocessor with technology that facilitates the tracking of individuals across the World Wide Web, outcry in the Internet community prompted Intel not only to install a software patch that disabled the technology but also to discontinue its installation in the next model, Pentium IV. Clearly the Internet provides users with a wide forum for discussion and a powerful platform from which to spread their message. Through the Internet and other media, the active vigilance of individuals can and does force the government and the private sector to reckon with a growing and vocal privacy constituency.

CONCLUSION
    Recent history has presented enormous threats to privacy, but the public has also made significant gains in privacy protection through legislation, technological tools, and action in the marketplace and the political arena. Privacy is a work in progress, and more work remains to be done. In particular, baseline legislation to address the collection of consumer data is a critical resource that would assure individuals consistent application of principles of fair information practices and an effective redress mechanism. Industry must continue to develop and refine privacy-enhancing software so that they keep pace with new business models and new technologies. In the debate about privacy, individuals must continue to use the Internet and new communications technologies to make their views clearly heard and understood.
    Is privacy something we can reasonably hope for in the twenty-first century? If recent history is any indicator, it is. But whether or not we achieve the kind of privacy we want ultimately depends on whether citizens are willing to organize and act as they have in the past. That will happen only if the public believes privacy is possible.
    Equally important is the newfound voice of individuals. Through the use of email, web sites, listservers, and newsgroups, individuals on the Internet can quickly respond to perceived threats to privacy. Whether it is a proposal before the Federal Reserve Board requiring banks to "Know Your Customers," or the release of a product like Intel's Pentium III that could facilitate the tracking of individuals across the World Wide Web, Internet users have a forum for discussion, and a platform from which to spread their message. This active vigilance can and does force the government and the private sector to contend with a growing and vocal privacy constituency.

FOOTNOTES
1 Under principles of fair information practice, an individual must first receive adequate notice about what information is being collected about him and how it is to be used. Second, the individual must be able to make choices about the use of information collected about him. Third, the individual must be allowed reasonable access to information maintained about her. Fourth, information about an individual must be secured, so that its accuracy and integrity is maintained. Finally, collectors of information must be subject to an enforcement mechanism that assures their compliance with fair information practices and provides individuals with a means of recourse when their rights in their data have not been respected.
2 See Berger v. New York 388 U.S. 59 (1967); Katz v. United States, 389 U.S. 354-59 (1967).
3 The Federal Trade Commission promulgated the Children's Online Privacy Protection Rule in 1998.

REFERENCES
    Brandeis, Louis D. and Samuel D. Warren. "The Right to Privacy." Harvard Law Review 4 (1890).
    U.S. Senate. Omnibus Crime Control and Safe Streets Act. Rept. No. 90-1097 (1968).

THE NECESSITY OF PRIVACY
    JEAN L. COHEN
    My answer to the question posed to participants in the round-table discussion as to whether privacy is now possible, was and remains "Yes." This "yes" is not naive: it is proclaimed in full awareness of the theoretical difficulties plaguing attempts to articulate a coherent and normatively compelling concept of privacy and to justify constitutional protection for a right to privacy in the current epoch. My affirmative is also intended to stand up to a range of serious critiques of the oppressive effects (past, present, and potential) of privacy discourse.
    My work on privacy has been in the area of intimate association: indeed I have just finished a book to be published by Princeton University Press entitled Sex, Privacy and the Constitution: Dilemmas of Regulating Intimacy. There my concern is not the threats to informational privacy posed by recent technological innovations. Rather, I focus on the implications of profound cultural and social changes in the understanding of sex, gender, and sexuality that have informed the development of the new line of constitutional privacy analysis discussed by David Garrow in his contribution to this issue of Social Research. It is these developments that are behind the intense controversies over how to regulate intimacy that we see erupting in a variety of areas--ranging from reproductive rights and the legitimacy of homosexual relationships to sexual harassment.
    To put it simply, for the first time in history women are being recognized as full legal persons and equal citizens. They are also beginning to insist on their own agency and happiness in the domain of intimacy and elsewhere. Shifts in the cultural imaginary regarding the meaning of gender and sexuality inform and follow from these developments, as does contestation over gendered roles, the appropriate forms of intimate relations, the ethics and responsibilities of intimacy, and the gendered division of labor.
    Indeed, the rights revolution begun in the 1960s vis-ý-vis race and class has had its impact in the area of sex/gender and intimate association. National legislation and the constitutionalization of key rights protecting the privacy and equality of individuals in the "domain of intimacy," both hotly contested, are the expression of this trend. Just how intimate relationships at home and at work are to be regulated by law has become a key stake in the culture wars of the late twentieth century.
Privacy analysis has long been suspect in this domain, not only because the legal decisions have been poorly reasoned (as Garrow points out), but also because privacy discourse has been used to shield unjust gendered power relations in the family and elsewhere. I argue that privacy is nevertheless an important value for much the same reasons as Charles Nesson articulated in his keynote address, and that the idea of a general constitutional right to privacy remains a good one. Garrow is certainly right about the strategic choices behind the development of constitutional privacy analysis in this country. But this genesis does not ipso facto have to mean that justifications for a constitutional right to privacy covering key aspects of intimate association must be arbitrary, flawed, or incoherent.(FN1) Rather, it means that the theoretical and legal reasoning behind privacy analysis needs to be carefully rethought. A right to privacy accords decisional autonomy, control over access, and freedom from public judgment to the rights holder: it neither requires secrecy nor involves shame. Privacy rights do not silence; instead they protect communicative liberty: the freedom to choose whether, when, and with whom one will discuss intimate matters. Moreover, such a right absolves the person from having to justify, in terms that everyone can accept, the actions and decisions covered by such a right. Instead, it protects difference--ethical, evaluative, aesthetic--while providing space for creativity and experimentation in the domain of intimacy.
    As we all know, privacy is an enabling condition for intimacy. A constitutional right to privacy covering intimate association and decisions is meant to position the rights' holder as an ethically competent person and to shield her intimate decisions and relationships from arbitrary regulation (public power) and from oppressive restrictions in the exercise of her rights (whether they stem from private or public power). One can of course openly follow one's sexual orientation and discuss intimate choices with others, provided this does not violate the trust of intimate associates. The choice to do so, or not to do so, is what a privacy right protects.
    Yet constitutional privacy rights shielding intimate relationships involve conceptions of privacy and of legitimate intimate association and decision making that can shift over time. We are in the midst of one of these seismic shifts: disputes over the reach and function of privacy protection (i.e., over which intimate relationships and decisions are to be covered) imply that the formerly hegemonic conception of privacy has been destabilized.
    It is no longer possible to restrict privacy protection to a "conjugal family" construed as an entity constituting the "domestic sphere" deemed off limits to legal intrusion within it. Nor has the corollary of this conventional approach remained acceptable: state "morals" legislation aimed at controlling non- or extramarital intimacies through prohibition or direct regulation on the assumption that they are, by definition, immoral. The naturalness of the old private/public dichotomy along with the gender assumptions that informed previous strategies of regulation have collapsed. So have some of the theoretical understandings of the presuppositions of privacy analysis.
    It had long been assumed by legal and political theorists that privacy analysis must perforce operate with an essentialist understanding of what is intrinsically private and that it posits a prepolitical natural domain of liberty in which the state must not intervene. The two dominant approaches to the regulation of intimacy share this assumption, although their assessments of privacy analysis differ. The classical liberal insists that intimate relations should be a matter of personal choice protected by privacy rights (see Richards, 1998: 233-287; Tribe, 1988: 1302-1435). Intimate relationships involving sexuality are construed as central to any contemporary conception of what privacy must cover. Provided there is no force or fraud, the less state regulation and legal interference in this domain, the better.(FN2)
    Feminist criticism has, however, shown that intimate association is pervaded by power relations and that sexual intimacy can be a medium of injustice. The "sex equality" approach thus rejects privacy analysis for allegedly entailing the idea of a power-free domain of personal autonomy immune to the demands of justice. Direct substantive regulation of intimate association to protect equality should replace privacy claims that shield injustice within the family. Legal regulation of sexual expression at work or at school is also required to prevent the use of sexualization to perpetuate gender hierarchy and gendered exclusions.
    Thus, when the law enters to protect women from injustice in order to secure their equality (be it in the form of regulating domestic violence or sexual harassment in the workplace or in schools), it seems that privacy has to be sacrificed. Accordingly, privacy and legal regulation to ensure equality and to protect against injustice seems to be in a zero-sum relationship. Either privacy entails nonregulation, including the absence of any valid claim to state support, or regulations for the purpose of protecting equality involve intrusive intervention and the sacrifice of privacy. We are left with the following paradox: legal regulation of sexual expression and intimate personal interactions in the name of justice can undermine the personal autonomy and privacy that is constitutive of intimate relationship and thus interfere with the pursuit of happiness, which is its purpose. Yet nonregulation permits injustice to go undeterred and unpunished.
    This paradox appears inexorable in two key areas of innovative jurisprudence: the development of constitutional privacy analysis covering intimate personal decisions regarding reproductive rights, and the development of sexual harassment law out of civil rights legislation oriented by the constitutional principles of equal protection and nondiscrimination on the basis of sex. In both, liberty and equality values seem to clash and an unattractive choice between legal regulation or nonregulation appears unavoidable. Let me briefly explain.
    Initiated by the landmark decision in Griswold v. Connecticut in 1965, in which the Supreme Court explicitly recognized a constitutional right to personal privacy for the first time (covering the use of contraception), what is referred to as the "new privacy jurisprudence" has developed around matters of reproductive rights, abortion, and intimate personal relationships generally.(FN3) What is new in this jurisprudence is not the application of the concept of privacy to the marital relationship or to the family as construed as an entity. The innovation lies in the court's articulation of the constitutional grounds for protecting the personal privacy and decisional autonomy of individuals vis-ý-vis "intimate" personal concerns whether or not these arise within the marriage.
    Previously the common law doctrine of family privacy protected the authority of the (male) head of household over everyone within the family unit against outside interference. Two assumptions underlay this jurisprudence: state legislation could not violate "natural orderings" of intimate relationships in the "private" sphere; and the regulatory police powers of states were limited to matters involving an accepted public purpose in the public interest.(FN4) This model of regulating intimacy had a clear logic: the public purpose was to promote reproductive sexuality within heterosexual monogamous marriage, and to shield the family unit constituted by it. This meant that "privacy" protection was limited to the nuclear family. States had wide latitude to regulate non- or extramarital intimacies or "public morals."
    The new privacy jurisprudence turns this approach on its head. It articulates the concept of a constitutional right to personal privacy as an individual right of ethical autonomy (to pursue one's conception of the good) along with a conception of individual privacy that now applies to important aspects of the domain of "morals" formerly the special preserve of state regulation. A trend has thus emerged toward the individualization and constitutionalization of matters that in the past had fallen under the rubric of "family law" and morals legislation by the states. The recognition of the full legal personality and civic equality of women informs this trend. Pluralization of the acceptable forms of intimate association is one of its effects. The certainty that there is one morally correct way to pursue intimate relationships has been undermined along with the raison d'ýtre of a large part of the states' "morals" legislation. The constitutionalization of individualized privacy rights construed as "fundamental" in the domain of intimacy ascribes to the intimate associates themselves the competence to choose the forms in which they pursue happiness and attempt to realize their conceptions of the good life. The value of personal autonomy in the domain of intimate association has been acknowledged, as has the necessity of fostering and shielding the diverse purposes of intimacy: happiness and experimentation on the one side, solidarity, mutual care, and responsibility on the other.
    But the "discovery" of "fundamental" privacy rights in the "domain" of intimacy raises important philosophical, sociological, and legal-constitutional issues and it certainly has not gone uncontested. Indeed, it seems paradoxical that privacy and autonomy rights are being asserted as "fundamental" just when the foundational philosophical arguments that served in the past to justify such ideas have lost their ability to convince.(FN5) Notions of natural rights or natural liberty antecedent to and that limit government have an antiquated air to them after the linguistic turn in philosophy. The argument that there are essentially private matters that constitute a domain beyond justice is hard to defend. So is the sociological image of a natural, private, prepolitical sphere in the age of the interventionist state. Constitutional privacy analysis seems to entail a shift of large areas of what was once the province of state-controlled family law and a state-regulated status regime to private contractual ordering. Yet many argue that contractualization of intimate association involves a pernicious form of privatization in which those with less social power than others are bound to lose when the norms of intimate association are violated or when that association breaks down. Fears of this sort lead some to argue against fundamental constitutional privacy rights altogether. They claim that since the state legally constitutes the domains of action subject to its regulatory power, even the decision not to regulate a particular activity is a political decision, not the expression of a fundamental right. The autonomy or privacy the law claims to recognize is its own creation. The entire discourse of nonintervention, of fundamental privacy rights protecting the individual and her negative liberty against the state, seems anachronistic.
    A similar conundrum pervades the area of sexual harassment law. Here too it seems that regulation aimed at deterring gender injustice in the workplace that occurs through the medium of sexual expression entails the sacrifice of privacy (both of harassee and harasser) and autonomy. Sexual harassment itself violates the privacy and autonomy of the harassee by imposing unwanted intimacy on her and by sexualizing her while blocking her equality. Yet rules regulating harassment claims in private corporations and in lawsuits often force people to submit to invasive questioning about their sexual past, to risk public exposure of the intimate details of their lives, to accept censorship of erotic expression, and intrusive regulation of consensual as well as unwanted relationships between coworkers. Here, too, freedom and privacy seem to be traded off for equality.
    If one rethinks the assumptions informing the various legal paradigms orienting the regulation of intimacy, it is possible to avoid many of the paradoxes and to break out of the dichotomy I have articulated.(FN6) The first step involves disassociation of the concept of a privacy rights from false assumptions about what it allegedly entails: the positing of natural liberty, essentialist conceptions of privacy, the idea of natural, private orderings, the opposition between legal regulation and personal liberty; the positing of a sphere beyond justice, a shift from status to contract. These are artifacts not of privacy rights per se, but of the liberal paradigm of law.(FN7)
    In other words, one can concede that privacy is socially, culturally, and legally constructed without abandoning the notion of a right to privacy. We may argue and fight about where the boundary line should be drawn between the zone of intimacy and other aspects of life, but we do have to draw such a boundary. One can find ways to protect personal autonomy and control over access as well as the freedom for imagination and creativity that privacy symbolizes and shields while ensuring equal liberty. What is needed is not only a cogent conception of privacy that is cognizant of the political dimensions of various constructions of it, but also awareness of the effects of particular forms of legal regulation on people, values, and behavior.
    It is possible to answer both the feminist and jurisprudential critiques of privacy analysis. The solution is not heavy-handed state regulation typical of what is called the welfare paradigm of law.(FN8) Instead, the shift away from the old oppressive and inegalitarian status regime governing intimacy must involve the recognition of the need to publicly regulate new forms of self-regulation. Constitutional privacy analysis ought not and need not entail a wholesale delivery of the "domain of intimacy" to private contractualist orderings. Rather, if one reasons from the standpoint of a reflexive legal paradigm, one can acknowledge a pluralism of legal forms, become aware of the diverse effects of forms of legal regulation, and allow for reflection on the appropriate form for each domain. In short, reflexivity toward forms of legal regulation allows one to take a nuanced approach to these matters. "Reflexive law" is a form of law that regulates self-regulation by articulating standards, procedures, and principles that cannot be violated by private ordering, yet it refrains from prescribing outcomes. The reflexive paradigm lets one choose among liberal, welfare, and reflexive legal forms. Those areas of intimate association that should be protected by classic liberal negative liberties, left to private ordering, or shielded by privacy rights need not be construed as beyond justice but as subject to the regulation of self-regulation when necessary.(FN9) Privacy and autonomy can be protected without resuscitating the anachronistic assumptions of the liberal legal paradigm. I cannot go into detail here but will close by saying that it is well worth the effort to try to rethink the normative and theoretical importance of privacy rights in the domain of intimacy and to develop a nuanced analysis of the legal forms that would be required to protect everyone's liberty and privacy equally. I hope to have contributed to this project.

FOOTNOTES
1 Garrow argues that it was not possible to invoke substantive due process because it was discredited in the aftermath of the New Deal. Thus the court had to find another way to protect the right to use contraception and it came up with privacy. This analysis is correct so far as it goes. I would argue, however, that turning to privacy was not as arbitrary as it seems because privacy has taken on rich symbolic meaning formerly attached to property, which, after the New Deal, became a purely economic concept.
2 For a libertarian argument along these lines, see Posner (1992). See Fineman (1995) for an argument in favor of the de-legalization of marriage.
3 See David Garrow's essay in this issue of Social Research.
4 See Gillman (1993) for a general and excellent discussion.
5 See Habermas (1981: 1-143, 339-403; 1987: 294-327). See also Foucault (1974).
6 A legal paradigm is a set of cognitive and normative background assumptions informing legislative and jurisprudential interpretations of the appropriate relationship the law should establish between state and society. For a discussion see Habermas (1996: 398-446).
7 The liberal legal paradigm sees threats to freedom as coming from the state and its intrusive jurisprudence. One is free where one is not subject to law. Accordingly, negative liberty--freedom from regulation--is the heart of liberty. On this approach, the state should guarantee the negative liberties of everyone equally, including their privacy. People should be restricted as little as possible. Law must be formal, general, and limited to the function of defining the abstract spheres of action for the autonomous pursuit of interests.
8 See Habermas (1996). Among feminist equality theorists, Catharine MacKinnon is the most noteworthy example of this orientation.
9 There are also areas of intimacy that do require direct substantive legal regulation. Laws against marital violence or rape are a good example.

REFERENCES
    Fineman, Martha. The Neutered Mother, the Sexual Family, and Other Twentieth-Century Tragedies. New York: Routledge, 1995.
    Foucault, Michel. The Order of Things. New York: Pantheon, 1971.
    Gillman, Howard. The Constitution Besieged: The Rise and Demise of Locher-Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press, 1993.
    Habermas, Jýrgen. Theory of Communicative Action, Vol. I. Boston: Beacon Press, 1981.
    Habermas, Jýrgen. "An Alternative Way Out of the Philosophy of the Subject." In The Philosophical Discourse of Modernity. Cambridge: MIT Press, 1987.
    Habermas, Jýrgen. Between Facts and Norms. Cambridge, England: Polity Press: 1996.
    Posner, Richard A. Sex and Reason. Cambridge: Harvard University Press, 1992.
    Richards, David A.J. Women, Gays, and the Constitution. Chicago: University of Chicago Press, 1998.
    Tribe, Lawrence. "Rights of Privacy and Personhood." In American Constitutional Law. 2d ed. Mineola, N.Y.: Foundation Press, 1988.

IS PRIVACY NOW POSSIBLE?
    THERESA M. MCGOVERN
    Most of my legal work over the last decade has involved violations of medical privacy. As the founder and, for more than ten years, executive director of the HIV Law Project, I have witnessed the violent impact of medical privacy violations on an extremely vulnerable client population. When health or social services personnel, family members, neighbors, or acquaintances inappropriately revealed a client's HIV status, the disclosure often led to domestic violence, eviction from housing, or a multitude of other types of abuse for my gravely ill patients.
    In the late '80s early '90s, I represented many children who faced discrimination because their teachers had revealed their HIV status to other staff and parents. There were instances in which very young children were prevented from attending classes with other HIV-negative children. In one case, all the parents removed their children from a preschool swimming class because the facility had revealed the three-year-old's HIV status.
    I also represented many tenants who were dying of AIDS but facing eviction because a landlord had learned that they had AIDS. Perhaps most sadly, I worked with many HIV-positive individuals who faced severe abuse and even eviction by family members who had learned of their HIV status. The source of the unauthorized disclosure was often a social services or health-care provider or a neighbor who had spotted the client on the AIDS wing of the local hospital. The great majority of my clients lived in constant fear of having their illness discovered.
    But through the early years of this epidemic, public health officials made a concerted effort to avoid such disclosures. However, the importance of privacy diminished as the demographics of affected populations shifted. In the early public health literature responding to the emerging AIDS epidemic, privacy and confidentiality were considered the cornerstone of the fight against the epidernic. But as the years passed and the numbers of women of color, injection drug users, and gay men of color infected with HIV continued to rise, the emphasis on privacy was replaced by a trend toward mandatory testing and partner notification methods as well as criminalization of HIV transmission.
    So, to return to the original question, "Is Privacy Now Possible?" I would have to answer "no"--at least not for pregnant women who are HIV positive in New York State or for anyone living with HIV in New York State.

MANDATORY HIV TESTING OF NEWBORNS AND MOTHERS
    On February 1, 1997, New York became the first state in the nation to institute a controversial mandatory HIV newborn-testing program. The law was opposed by a broad coalition of medical providers, advocates for HIV-affected populations, and women and civil liberties groups. To pass this law, the New York State legislature amended a long-standing HIV confidentiality law prohibiting an HIV test without the written informed consent of the recipient except women giving birth from its protection (Public Health Law 2500-f).
    While at first glance the legislators' action may seem quite reasonable, close analysis shows this policy to be suspect. The HIV test of the newborn is only an HIV test of the mother. An infant who tests HIV positive at birth has been exposed to HIV but the mother is HIV positive. All infants born to HIV-positive mothers will test HIV positive at birth because they are born with the mother's HIV antibodies. Without any medical intervention at all, however, two-thirds of these infants will convert to HIV-negative status in the first 18 months of their lives. Thus, the mandatory test of the infant is a mandatory test of the mother and simply an exposure screen for the newborn. The test does not constitute lifesaving treatment for the infant.

DISMISSING THE PRIVACY RIGHTS OF MOTHERS
    The context of this legislation is fascinating. For years providers had failed to offer HIV counseling and testing to affected women. I examined the medical records of hundreds of women who had never been offered an HIV test, despite strong evidence of immunocompromise. These women had visited city hospitals for years and had never been offered an HIV test. I represented many mothers with children who learned of their own HIV status when their child became sick. Again, despite constant visits to healthcare providers, they had never been offered an HIV test. I never encountered a refusal to test among any of my female clients.
    For years advocates had been asking the Department of Health for regulations requiring prenatal counseling and an offer of HIV testing, but to no avail. In fact, a regulation requiring prenatal HIV counseling and testing was only implemented after litigation by several advocacy groups representing women with HIV (Chanele Mathews et al. v. Pataki, Index No. 107912/96).
    The focus on testing newborns was strange for a number of reasons. In fact, various regimens administered during pregnancy had been found to reduce the likelihood of HIV transmission by the mother to the infant by one-third. In the late 1990s, it was discovered that administering medication to the infant immediately after birth could also reduce the likelihood of transmission. But when New York State implemented its newborn-testing law, the state did not return HIV positive infants' test results for approximately a month. Representing women who had never been offered a prenatal HIV test and had breast-fed for a month only to learn that the baby had tested HIV positive, we went to court to demand that this so-called infant lifesaving mandatory testing scheme have some medical significance (R. Z. v. Pataki, Index No. 97-112960). We argued that the mother's privacy right to medical decision making for herself and her child could not be overridden if the state failed to provide lifesaving information or treatment for an infant tested pursuant to this scheme. In this instance the constitutional intrusion on the mother's right to privacy would be justified only if the information were delivered in time to affect the medical outcome. In response to the litigation, the state was forced to implement a rapid HIV-testing scheme as part of the mandatory HIV newborn-screening program (R. Z. v. Pataki, Index No. 97-112960).

CONSEQUENCES OF MANDATORY HIV TESTING
    By all accounts, prenatal therapy is the best route for the reduction of mother-to-infant HIV transmission. Because the newborn-testing scheme was implemented before all hospitals and providers had begun to routinely offer prenatal testing and counseling, many women who were tested through their infants without consent asked why they had not been offered prenatal testing. Other mothers were informed of the positive newborn screen in crowded clinical settings. In one case, hospital staff informed a mother's partner, placing this mother and child in imminent danger.
    No independent mechanism is in place to monitor testing and privacy abuses related to mandatory newborn testing. In this instance the state of New York decided that the medical privacy of the mother and the right to make medical decisions for herself and her child were outweighed by the need to identify HIV-exposed infants.
    The legislative and media debates surrounding this controversial policy demonized opponents of the mandatory testing law. Proponents of mandatory testing characterized opponents as crazed civil libertarians who valued a mother's right to privacy over the infant's right to live.

PARTNER NOTIFICATION
    As of June 1, 2000, when an individual tests positive for HIV or has a laboratory result that indicates the presence of HIV, his or her name and the names of all contacts, sexual partners, needle-sharing partners, or those who may have been exposed in an occupational setting during the last ten years who are known to your physician, lab, health provider, or blood bank are reported to the Department of Health (Chapter 163 of the Laws of 1998 amended, PHL Article 21; 10 NY Code Rules and Regulations, Part 63). Health-care providers are mandated to report such names. The provider must ask you for names and if you refuse or even if you comply, the provider can search your medical records for evidence of such contacts. A doctor must also inform the HIV-positive patient of his or her options for notification. A public official can do the notification or the individual can do it as long as such notice is verifiable. The health-care provider is not supposed to reveal your identity and he or she is supposed to determine if the disclosure may create a risk of violence. The counseling does not tell you that you have a right not to disclose the names. Again, the state Department of Health deemed privacy of HIV-positive individuals less important than any partner's right to be informed of exposure. And although this may seem to be a sound policy at first glance, the potential for abuse is great for many individuals infected by the very individuals who are now being notified about exposure (Chapter 163 of the Laws of 1998 amended, PHL Article 21; 10 NY Code Rules and Regulations, Part 63).

CONCLUSION
    We have moved from the protection of privacy as a key component in the control of this epidemic to the enactment of laws that emphasize tracing and tracking of transmission. The efficacy of these new laws remains unproved. At this time no independent mechanisms have been set up in New York State to track related privacy abuses. In fact, when one advocacy group attempted to set up a hotline where women could report abuses related to mandatory newborn testing, the state Department of Health refused to allow the posting of the hotline number in its HIV clinics. This allows proponents of such measures to claim that there are no negative consequences to such approaches. Many would argue that the enactment of such measures and the devaluation of the medical privacy of HIV-positive individuals is tied to the demographic shift and the relative political power of affected communities.

SECRETS FOR SALE
    MAGGIE SCARF
    The answer to the question being addressed at this conference--"Is Privacy Now Possible?"--would surely be a resounding "Yes" if the general public were fully alerted to the range of threats posed to every man, woman, and child in this nation by the increasing ease of access to our personal medical information. This is not an abstract issue--it's an "in-your-face" issue--but too few people are as knowledgeable about it, and therefore as concerned, as they ought to be. If this frightening genie does fully escape the bottle, we will surely never get it back inside again.
    Why should anyone want to see our medical records? The answer is that the information they contain is (like our credit information) a very marketable commodity. A long struggle has been taking place to make this information legally available to those who want to sell it. Indeed, immense profits can be reaped from aggregated medical records, and a number of computer database companies (Equifax, the huge credit-reporting agency, is at the forefront) have been moving relentlessly forward to stake their claim to this highly lucrative data.
    How would this personal information be used? An advertising agency handling a pharmaceutical company's account might be interested in knowing the ages, ethnicity, and economic backgrounds of the users of a certain antidepressant. Or an employer might want to know the medical and psychiatric status of a present or future employee. Insurers could make use of detailed mental health records to exclude especially vulnerable applicants from their pool. Once such information is online, and accessible, it can be obtained (for a price) at the touch of a button.
    Let me pause here to say a word about medical privacy, something we all take for granted. What is it? It is the ability of a person to go into a doctor's office and talk about his or her most personal, private matters--matters such as sexual concerns, spousal abuse, a teenage child's use of drugs. These may be problems that we wouldn't discuss with our closest friends, so do we want them freely accessible to people other than our physicians--perhaps without our consent, or even our knowledge? Would we be able to trust in the confidentiality of the medical encounter, which is so deeply ingrained in us now (it has existed throughout the history of medicine), or would we come to see our physicians as potential informants and therefore censor what we told them?
    Let me cite a famous example of what can happen in situations where gross privacy loopholes exist. This is the case of Ann Linehan, a Boston woman in her early sixties who went to her health maintenance organization for routine treatment of a urinary tract infection. The doctor she saw that day (someone she had never met before), glanced over her medical file, then said flippantly, "I can certainly help you with your medical problems, but I can't help you with your mental problems." At the time Linehan was being treated for a stress disorder that had erupted in the midst of a wild family dispute--a legal battle to gain access to an out-of-wedlock grandchild--and she believed her talks with her psychiatrist to be completely confidential.
    To Linehan's dismay, she discovered that detailed notes on every session had been stored in a computerized medical record that was accessible to anyone--doctors, nurses, clerks, assistants--within the huge health plan to which she belonged. This incident reached the desk of a Boston Globe reporter, who began to write about this and other privacy violations; the ensuing series of articles raised a storm of controversy in that city. The upshot was that the Massachusetts legislature enacted more stringent and effective privacy laws--which is the outcome one would like to see at a national level.
    But unless the public becomes sufficiently aroused, events are likely to keep moving in the opposite direction; our medical data is likely to be stored in an electronic library where an awful lot of people have legal access to a library card. This will be particularly true if some federal regulations the Clinton administration floated should ever become the law of the land.
    These regulations, which were an eleventh-hour amendment to the popular Kennedy-Kassebaum health care law (The Health Insurance Portability and Accountability Act of 1996), upheld a Supreme Court ruling that psychotherapy records are privileged information. Under the terms of the 1996 bill, Secretary of Health and Human Services Donna Shalala was ordered to submit to Congress within one year "detailed recommendations on standards with respect to the privacy of individually identifiable health information." She was also mandated by the provision to issue regulations that were to become law if Congress had not passed satisfactory legislation protecting medical confidentiality by August 21, 1999. If Congress had not acted by then (at the time, approximately five or six different privacy bills were being floated on Capitol Hill, but the issues involved were so contentious that none had gathered sufficient steam to move forward), Shalala would have six months in which to draw up federal directives regarding the electronic transmission of medical data. As a result, by February 2000, she would have been empowered to enact important federal regulations regarding patient privacy protections by default.
    The institutional machinery was certainly in place for her to do so; but for privacy advocates, the prospect did not prove to be a heartening one. In September 1997, Shalala sent an initial, 90-page report to Congress. In the report she did "talk the talk"--she asserted that there exists an "age-old right to medical privacy" upon which the quality of health care is highly dependent--but when it came time to "walk the walk" in terms of solid pro-privacy legislative recommendations, Shalala and her advisory committee put forth some proposals that sounded downright alarming.
    Their report proposed that "the traditional control on use and disclosure of information, the patient's written authorization, be replaced [my italics] by comprehensive statutory controls on all who get information for health care and payment purposes." In other words, Shalala and her committee (which was dominated by members of the health information industry) simply dumped our historic, long-held ethical views regarding informed patient consent.
    Indeed, they advocated making everyone's personally identifiable medical data available "for health care and payment purposes." This would create a situation in which we would not necessarily know if and when someone was accessing our intimate health information for "health care and payment purposes." The information could be used 1.) for banking and payment processes; 2.) for research where there has been a waiver of patient consent by a designated "privacy board" (whatever happened to informed consent?); 3.) for public health functions as authorized by law; and 4.) for judicial and administrative proceedings in response to an order from a court or administrative tribunal as authorized by law. These are but four of the thirteen important "exceptions" to the rules purported to secure our confidential medical information. The bottom line is that many people--perhaps your local dogcatcher included--will have legal access to information you may have told your physician in the strictest of medical confidence.
    Another scary piece of legislation lurking in this late amendment to the Kennedy-Kassebaum Act is the "unique health identifier," which is a record, from "sperm to worm," of any contact with a health care provider--whether paid for out of pocket or through a health plan--that an individual has throughout his or her lifetime. This personal identifier has been dubbed the "national tattoo." If use of this identifier ever becomes mandated by federal law, the days of back-alley abortions will be gone; instead, there will be back-alley medical appointments!
    At the time that this new provision was reported on in the newspapers, I should note, the reaction of the public was immediate and indignant; Vice President Al Gore called for a moratorium on the development of the unique public health identifier until such time as strong patient-privacy legislation was securely in place. Congress, not to be outdone, put real teeth in the recommendation by cutting off all resources for the implementation of the unique health identifier until the close of the fiscal year. At present, the idea is still in limbo, but the concerted corporate push for a "personal identifier" has by no means been abandoned.
    Yet another privacy concern that has recently arisen is known as OASIS: not the pure lagoon in the desert, but the "Outcome and Assessment Information Set." This is an effort sponsored by the Health Care Financing Administration to gather personal, invasive information--answers to some 80 questions--about individuals receiving home-health care. At first the intent was to force the nurses sent to residences by home-health care agencies to fill out this questionnaire for everyone who received such care (even daily bed baths). "However, after an article about this enterprise appeared in the Washington Post, there was such an outcry that the effort was scaled back; at present it is only Medicare patients who are required to answer the questionnaire.
    It must be said that some of the questions included in the OASIS questionnaire are really off the wall. Does the patient use profanity? Does the patient have thoughts of suicide? Does the patient make sexual references? Does the government need to know these things to cut the cost or improve the quality of care?
    We have recently also seen the emergence of a new breed called "pharmacy benefits managers." These are people who study which medications we are taking (who said they could look at them?) in the interest of turning a profit. Here is an example of why this kind of intrusion should cause concern. A short while ago a local doctor with whom I chatted at a dinner party told me that he had received a list of his patients who were using a certain antidepressant. The pharmacy benefits manager who had sent the letter was trying to get this physician to switch these people to a newer antidepressant, sold by his own company. It's a hell of a nerve in any case, but in fact several of the patients who were on the list were not among this physician's clientele! I should add that we live in a small university city, and the doctor did know several of these individuals socially. These people are completely unaware that their privacy was violated.
Privacy experts tell me that much more secure confidentiality safeguards could be put in place were it not for the money to be made from our medical information. As things stand, a lot of corporate interests are slavering to gain legal access to our personal and identifiable medical data. This is just a rough idea of the scope of the privacy problem that we, as a society, face. I think that at some level many of us are denying and avoiding this problem because we respect and trust our doctors, and we want them to make us better! However, unless we're watchful, the government could force them into the role of informers, a kind of internal Stasi. "Above all, do no harm" is a part of the Hippocratic oath; but this situation can do us and the medical profession a huge amount of damage. Privacy will only be possible if we insist upon it.