history tv, historians on people's right to privacy and the tensions between privacy, freedom of the press, convenience, and national security. also it look at recent internet surveillance cases and people's privacy today. the organization of american historians hosted this 90 minute event at their annual meeting in new orleans. >> this is a panel on modern privacy doctrine, problems, conceptions, conflicts. there's interesting details and stories in the short papers people have produced. we want this to be as far as possible, a conversation. c-span restricts that a little bit because they would like us to be in a row rather than in the community. [laughter] but we will take questions and conversation, and try to produce relationships, as well as some

information. unfortunately, one of the speakers, leeann wheeler, could not to get here because of the air traffic control issues of yesterday. et, from bowling green, university, who is a friend is going to channel leeann wheeler. very grateful he is something for us. -- subbing for us. i will quickly introduce the speakers. then, they will each give small talks. then i'm going to do a short, and then we will open it up to conversations.

a phd fromler holds minnesota. her first book was against of sanity, reform, and the politics of womanhood in america. more recently she published how sex became a civil liberty, which followed several pathbreaking articles on the same subject. us holds a phd from uc berkeley and a jd from stanford. she teaches at buffalo law school and is the author of three books in cultural legal history. "the laws of image," a very fine book on exactly on our theme, "newsworthy," on the supreme court and privacy, and movie crazy, an earlier work on films which also intersect with questions of privacy.

a phd in princeton is professor of history and director of the american studies program. , atverlap on that question vanderbilt. her first book, "the average american," was and remains a much celebrated work. she is completing a cultural history of modern privacy. thank you. >> andy, thank you. >> andy leeann. >> this is actually my great privilege to be leeann today. she is such a wonderful scholar and colleague. i have no objection to anyone's sex life as long as they don't practice it in the street and frighten the horses. so said mrs. patrick campbell, a british stage actress commenting flirtationsde's with men in the 1890's. what he actually said may have

-- what she actually said may have been a variation on this version, but her point was clear. one's sex life should not concern the public, unless carried on in public. 20th century americans have not been so concerned about scaring horses, but they still access obsess over what sexual behavior should be confined to the private sphere and which could safely appear in public. my last book aimed to explain how sexual material and behavior became constitutionalized as civil liberties. i very quickly became a mashed -- enmeshed in questions of sexual privacy. i found that even though as many 20th century americans challenge the victorian separate spheres that have drawn strict and ultimately unsustainable boundaries between public and private, they continued to wrestle with questions about sexual privacy. should sexual privacy be available only to married couples, or also enjoyed by individuals?

must sexual privacy reside only in the home or might it extend to a rented public gymnasium? onto a city sidewalk? how about the workplace? and what is sexual privacy anyway? can sexual privacy include a right not to be confronted with sexual expression? so far, my research on privacy has focused on activists in the american civil liberties union, the aclu, and advocacy organization founded in 1920 by former antiwar progressives turned greenwich village civil libertarians. aclu founders first floated a notion of sexual privacy when defending nudists in the 1930's. they argued that a new your law criminalizing mixed sex family nudity invaded the privacy of the home.

an invasion by the state that merry risk in text defined for the aclu, resented quote as a wife and mother of two children. these arguments would not gain approval among lower courts until the 1950's. and a handful of cases that began to introduce the notion that a right to privacy might include mixed sex nudity. behavior that many associated with sexuality. it was birth control, of course that brought in the u.s. supreme , courts. the court found in griswold , 1965, annecticut right to marital sexual privacy in the constitution. a few years later it extended that privacy right to singles in eisenstadt versus baird 1972. and in roe v. wade, 1973, 2 that -- to a pregnant woman's limited right to obtain an abortion. these stories are well known. what i have found interesting are the ways that even as a

constitutional right to sexual privacy was developed around issues of women's -- reproductive rights in the 1960's and 70's, many people were expressing a decline in their experience of sexual privacy. frank trivets, an award winning journalist published in 1970 article on this issue in the popular magazine, "look." what's happening to sexual privacy, he asked. is it dying, he wondered, in a world where quote, public sex pops up everywhere. cricket was far from alone in suggesting that public sex could violate sexual privacy. in the 1960's and 1970's, many individual citizens, and even for a time some aclu leaders tried to establish a version of

, sexual the that would recognize unwanted exposure to sexual expression, whether in public or private lives in violation of sexual privacy. junk mail raised these issues in the 1960's and 1970's. debates involved a wide range of people including individual mail recipients, aclu attorneys, politicians, decency activist, newspaper publishers and advertisers. direct mail advertising had taken off in the postwar era. in the early 1960's, publisher ralph ginsberg used it to reach millions of potential subscribers to "eros", a new magazine devoted to love and sex. 10,000 people who received ginsberg's circular responded angrily. meanwhile in 1966, the post office received 200,000 complaints from postal patrons

who objected to finding unsolicited sexual material in their mailboxes, even on the floors of their entryways. postal officials testify before congress to demand a law that would allow individuals to refuse mail from any concern that had sent sexual material in the past. the counsel for the post office pointed out that when sexual displays are quote, "thrust up upon us, our privacy is invaded," and the patron must have the quote, right to secure to privacy of his home, end quote. people could not receive without their consent graphic as for strippers schoolbook, men only, scanty panties, and the vibrofinger. without the proposed law, postal

patrons cannot maintain their privacy. aclu attorneys fought back, arguing that the proposed law would violate the first amendment. the right of privacy may be one of the most precious rights of man, they conceded, but it must nevertheless "yield when it comes in conflict with the paramount right of freedom of speech." in the end, the aclu lost. patrons who demanded privacy through protection from unsolicited sexual mailings, won. congress passed a number of protective laws, and in 1970 the u.s. supreme court upheld many office row and the post v. postwin -- rowan office 1970. in miller's right to communicate, the court declared, most quotes, stop at the mailbox of an unreceptive addressee, in order to protect the privacy of homes. the home was one thing, but what

about sexual expression thrust an unwilling individuals in public spaces? in redrop v. new york 1967, the court overturned the conviction of a new york city newsstand clerk prosecuted under state law for selling sexually explicit books, but suggested it might have upheld a more narrowly drawn statute designed to protect children or prevent an assault upon individual privacy. one that made it quote, "impossible for an unwilling individual to avoid exposure." then, in stanley v. georgia, 1969, the court endorsed the individual's right to read or observe what he pleases in the privacy of his own home. together, redrop and stanley charted a new task for privacy

as a civil liberties that could draw constitutional boundaries for percent to law. in the wake of these decisions, aclu attorneys began to grapple with the issue of what they called thrusting. they rely heavily on thomas emerson, a leading first amendment scholar who helped craft the aclu's privacy argument in griswold. emerson advocated laws against thrusting, arguing that they would protect the public and captivate audiences from exposure to uninvited sexual messages and material. unwanted sexual communication functions like action than speech, he insisted, because of the shock effect it was capable of producing. others supported laws against thrusting as protections for children, or as necessary, to preserve or restore a public sphere free of sexual images. their opponents insisted that "there is no right of privacy for people in the public arena,"

and that anti-thrusting laws violate the first amendment. but 1970, the aclu vote boarded -- voted by a razor thin margin to accept narrowly drawn laws that would "prohibit the thrusting of hard-core pornography on unwilling audience." meanwhile, in 1970, the president's commission on obscenity and pornography can he johnson,under lyndon issued its report. like the aclu, it recommended the elimination of most of -- obscenity laws except those that protected , children and prevented quote, assaults upon individual privacy by offensive public displays. the commission was, widely and roundly denounced by the senate and senator who called for commission and by the new president richard nixon, who condemned the report as quote "morally bankrupt." of course, even as the nation's political leaders demanded

ongoing and increased restrictions on sexually explicit material, journalists and consumers moved the culture in the opposite direction. the former by receiving x-rated movies in mainstream newspapers in the latter -- by patronizing them in droves. thus, the golden age of pornography arrived in the middle of an electoral turn toward the right. in this context, the aclu reconsidered its policy on thrusting. national board member and first amendment scholar franklin haman ridiculed the concept of thrusting. individuals had the right to -- no right to privacy from sexual speech. privacy will be added really safeguarded he insisted, as long we protect our right to escape from one another after the first exposures unwelcome communication. others continue to argue that obscenity in public places is like a physical assault on a captive audience.

but they were now on the losing side. at least until now and for seeable future, the notion of thrusting as an impermissible display of sexually explicit material to an unwilling audience would never again inform aclu policy. it appeared only a few times and a handful of lower court cases in the late 1970's and early 1980's. but like samantha, i have found that "by the 1970's, freedom of the press had practically eclipsed privacy". even so, the law continues to even so, the law continues to this day to empower postal patrons to put a stop to sexually oriented advertising. the survival and endurance of these postal laws seems directly related to their emergence out of the demands of patrons. those ordinary citizens, whose experiences of embassy are so privacy are so

difficult to recover. by comparison, the notion of thrusting had a short shelflife, less than a decade. still com, public life remains governed by rules about sexual to ways. what they are as far from clear. the extremes to which they might go remains equally unclear. we can safely say about protecting about protecting the sensibilities of horses. what law keeps x-rated magazines from appearing in supermarket checkout lines? today, it is zoning laws aimed mainly at protecting property values, sexual harassment laws designed to prevent sex discrimination, and range of laws that attempt to -- protect children from exposure to sexual

material, and the mysterious community standards that remain at the core of obscenity law. but i would suggest that our public life has become one shaped less bylaws than by -- less by laws than by corporate assessments of and efforts to shape consumer pallets. how, i wonder, do these efforts related to the privacy experiences of ordinary citizens ? and finally, what does it mean to turn -- what are the risks and benefits of turning a public sphere over to corporate assessments of public taste ? [applause] >> ok. just about one year ago in an invasion of privacy case that made headlines, the wrestler hulk hogan won $140 million against the gossip website gawker for publishing a sex tape without his consent. the massive judgment stirred and heated national discussion around the right to privacy and freedom of the press. to many, it seemed intuitively right that hogan win the lost. -- the lawsuit.

it was an explicit video, anyone would be horrified and humiliated by such intimate exposure. on the other hand, this was true , and doesn't the first amendment protects truthful truthful speech? i was fascinated by this issue, this tension between privacy and freedom. in two recent books, i've have written about how americans in the past entry have struggled to balance these values. the story about how privacy made a start in american law, but receded in the face of the increasing priority that courts began to place on the freedom of the press and what has been described as the public's right to know. by the 1970's, freedom of the press had practically eclipsed

privacy, which is why the hogan verdict was surprising and could eventually signal new directions in the law. i want to tell you a little bit about this history. unlike the legal actions for libel, which deals with false facts, the legal actions or invasion of privacy deals with true but embarrassing personal facts. this came into being in the late 1800's in response to the rise of the mass media. the mass circulation got the columns and printed photographs, which were meant to threaten a person's ability to control his public image and his right to be let alone. in 1890, two lawyers in a famous harvard law review old proposed legal action that would allow people to sue the press for publishing true, but embarrassing and intimate facts or images and to recover damages for emotional distress. framed as a right of dignity, a right that was generally not protected under american law at the time, this right to privacy was controversial. it resonated deeply with a

public that had become and served with a threat to the individual posed by unwanted exposure to the public gaze. within a few decades, this right to privacy would be recognized in most states. so, even though protections for freedom of speech weren't as extensive back then as they are today, they were nonetheless constitutional problems with privacy laws that would allow people to sue the press just because they found materials invasive or offensive. if the right to privacy were not limited in some way, a politician upset with the press coverage of a scandal might be able to successfully sue for an invasion of privacy, and it would have a chilling effect on the press. so, to protect the press, courts adopted a privilege for publishing matters of public interest or concern. sometimes they were described as newsworthy material. matters of public interest were defined as topics that -- served the public interest in the sense of the common good.

fallacious gossip, although interesting, was not a legitimate matter of public interest. a news story about a politicians 's sex life could be a legitimate matter of public -- hist if it shed light personal traits could be a matter of public interest if it shed light on his fitness for office. a story about his sex life would not be a privileged edge public and the public courts said they had no need a right to know such intimate personal details. by the 1950's, it began to o steadily broadened, tracking the rise of more speech protected first amendment

jurisprudence of the courts. some courts were deferring to the media on the newsworthiness question. there is a shift from a normative question of matters of public interest. a matter of public interest was what the public should be interested in. a matter of public interest is what the public was interested in. something appeared in a publication that claimed to be a news outlet, it was, by definition, newsworthy. the press published only what the public was interested in and willing to pay for. and it wasn't the business of the court to be passing judgment on public cases. a too narrow view of newsworthiness would infringe on what was being described as the right of the public to be informed. to have the information it needed to engage in public discussion of affairs, which was described as the foundation of participatory democracy.

this more expansive view of newsworthiness rent outcomes -- led to that some critics outcomes that some critics thought is just thought of as disturbing. there is interest in celebrities ' public lives. courts, even ordinary citizens -- they were involved in newsworthy events. the sued for invasion of privacy. lawsuits failed on the grounds that victims became a part of the newsworthy event, unwillingly, and lost the right to privacy. metal courts were willing to go -- but, not all courts were willing to go so far. as somebody put it, some revelations might be so intimate

and unwarranted as to outrage the communities notions of decency. in cases where women's modesty was compromised, courts often permitted recovery for invasion of privacy. when a newspaper published a picture of a woman whose skirt had blown over her head. , as now, the privacy norms were tendered. -- gendered. the conflict between privacy and freedom of the press intensified after the second world war for several reasons. a competition for audiences, not only among print publishers, but also radio and tv broadcasters, led to increasingly sensational and invasive material. more generally, the public was becoming conscious of privacy in all of its meanings and senses. privacy emerged as a major issue of public concern after the war. i think there was a panic around privacy, brought on largely by the advent of new technologies. not unlike today's privacy panic.

so, privacy was besieged not only by the media, but by governments, employers, researchers, advertisers, marketers, and pollsters, armed with new communication, data processing, and surveillance technologies, including the first primitive computers. so, in this environment, courts began to create and expand -- extend protections for privacy in a variety of contexts a 1965 court case . they claim to find a constitutional right to marital privacy and penumbral stand -- of the bill of rights. at the same time, protections for privacy were expanding -- so . they rolled back restrictive

laws around publishing pornography and libel. as a supreme court stated in its 1964 decision in new york times versus sullivan which gave the press a broad first amendment right to criticize public officials, uninhibited robust debatee open political was the essence of a free society. so, within this context and the heels of sullivan versus griswold, the supreme court decided to take a case that directly pitted privacy against freedom of the press -- this is a subject of my most recent book. the court in this privacy conscious environment, recognize a broader right to privacy against the media question mark a? when the recognition of the constitutional right to privacy in griswold have any bearing on the individual's right to recover against the press? this case involved the hill family, victims of a harrowing hostage crime who had been

publicized in life magazine three years after the crime in 1955. they claimed that they had a right to be left alone, that life violated when it wrote about them. life is published by time inc. they won a large judgment to trial, upheld on appeal. this went to the u.s. supreme court. richard nixon, a practicing lawyer at the time, a year before he ran for president, and a few after his disastrous failed attempt to run for the governorship of california, argued the hills' case before the supreme court. nixon's involvement in this case, which he saw as a chance to rebrand himself before the public and to exact his long-standing war on the press, as a whole interesting story that i described in the book. the court initially decided in favor of privacy. a justice wrote a strongly worded opinion, in which he

stated that the new life article was not news. and that the constitutional right to privacy is recognized in griswold bolstered the hill'' claims to a right to be left alone by the media. but, his opinion was not issued. at the last minute, several justices, swayed by the first amendment absolutist justice hugo black, switched their position. a majority opinion by justice william brennan issued in january 1967 suggested that the press had a first amendment right to publish on all matters of public concern, defined broadly, and that a person should have no expectation of privacy when it came to media exposure, in conjunction with newsworthy events. so, foreshadowing our 21st century panoptic society, the court suggested that a person waived his right to privacy by virtue of living in a media saturated environment, where it

was possible to be recorded and publicized at any time. so, this case marked a turning point. it seemed to give constitutional validation to the broad interpretation of newsworthiness that had been adopted by many state courts. as a result of hill and later cases, it has become extremely difficult to win a privacy case against the media. among items deemed newsworthy -- included the names and addresses of rape victims, sexual orientation of a man to try to an who tried to keep it private, facts surrounding a suicide, a doctor's psychiatric history among other personal facts. technically, the hill decision was narrow, limited the particular new york law that the case was brought under.

this question of the boundary between privacy and press freedom is one we must resolve soon in our age of surveillance and voyeurism, on on the the instability and social media overexposure. this legal battle is uniquely american. europe has a much stronger right to privacy. european law protects free expression but it also has protections for dignity that the u.s. is not. -- does not. i think american law has tended to downplay the harms of media invasion. traditional stances that people should develop a thick skin. besides, doesn't everyone love publicity? one reason the right to privacy has failed to take off in immediate context is because it arose alongside the development of modern free space law and also the growth of powerful media companies with the resources to beat private claims.

-- privacy claims. one obstacle i faced that we all may face in our work is gauging how ordinary citizens actually felt about privacy. there have constantly been opinion polls tracking the public attitude toward media invasion of privacy. the public has always thought that the press is to basis. -- too invasive. there are other sources. there is also this paradox to grapple with. how can people say they value privacy and be so willing to disclose personal fax? -- personal facts? how can the public claim to be outraged by publications like gawker and yet they draw in millions of viewers? there are many interesting legal and cultural questions around gauging public attitude toward privacy. how we can get to those feelings. ultimately, the range and diversity of those feelings is a challenge.

in the and, i will say that as a historian and lawyer, the real question is where do we go from here? how can we resolve our very deep conflicts between privacy and free expression and how might history inform the choices that we need to make today? i wonder if we are at it a critical moment like the 1960's when both personal, privacy and press freedom presented themselves as values of critical importance. i wonder what choices we will make today. thank you. [applause] co-panelists.o my this has already been such an interesting point-counterpoint on privacy. i will try to add to it by

picking up another strand of privacy discussion, i will mostly talk about what we think of now as data or information privacy. i want to try to connect it to some of the things that the other panelists have talked about and samantha's last point about how we engage public attitudes is really what i have been interested in. not so much the history of privacy law, but the privacy sensibilities overtime. -- over time. i will try to speak to that a little bit. we know that american concerns about the state and fate of personal privacy are at a very high pitch. i don't think that is news to anyone. on the one hand, we have edward snowden's revelations about nsa spying. we have google glass, drones, commercial algorithms that seem to know is better than we know -- know us better than we know ourselves. on the other issue that samantha

raised, we have the rise of what seems to be the opposite -- tracking, quantified cells. reality-based entertainment and individuals' relentless quest exposure in an expanding universe of social media. these developments may be contradictory or they may be connected. i lean toward the latter. either way, they tell us that privacy is not at all private. privacy has become an essential category, sometimes i think the central category of american public life. so many things come under the banner. for the last several years, i have been wrestling -- i don't use that term lightly, i have been wrestling with this history and the history of the concept of privacy in american life. it turned into a history of how privacy came to fit at the center of u.s. politics and culture over the last century. privacy is important to note is not always a matter of public

import. beginning in the late 19th century, increasing numbers of citizens both claimed a right to privacy and believe their privacy to be endangered in one form or another. this is a story that is still unfolding. what i think makes it especially complicated but also intriguing for historians is the dizzying range and diversity of topics that gather under the banner. as my co-panelists have already suggested, privacy is one of those concepts that spans very unlike domains. the mass media, public sexuality are just two of the places that urfaces.se americans have turned to the language of privacy to debate everything from national

security to public health, suburban architecture, psychological experimentation, official data banks, professional memoirs, reproductive rights, that is a short list. it could drive a historian of privacy a little crazy. so, there is one strategy for thinking about this, philosophers, legal thinkers, social theorists address the progress by trying to formulate precise taxonomies of its spatial, bodily, decisional and informational strands. the interesting historical questions lie elsewhere. not what privacy really is, what it is made of, what is but thedients are, recourse to privacy in such variable circumstances might reveal. what has fascinated me along

these lines is that when americans invoke privacy, they always also express common sense philosophies about the modern social order. all of those institutions and forces, both public and private , that place pressures on the individual person. put simply, to appeal to privacy and invoke it in a public setting or on a private one was to make an argument about the proper boundary between citizens and the larger society. i want to emphasize that they are not the state. there is a range of different kinds of social institutions. my instinct is to treat privacy less as a thing or a measurable quality than as an index to changing ideas about social life itself. the history of privacy is not reducible to any single storyline. i suspect that if prominent in -- its prominence in the modern united states is linked to the emergence of what i would call a knowing society. a society that saw constantly changing ways to understand, govern and minister to its

members by scrutinizing them in fuller and finer detail. privacy talk could mediate the perils and promise of being known. this could help make sense of that contrast. the demand to be sheltered from worldview in some circumstances but in others the desire to be shared and be seen. it accounts for why privacy has moved so insistently to the foreground of u.s. political culture. it indicates that it will remain there for the foreseeable future. across the 20th century, americans became known by all kinds of agencies, state bureaucracies, law enforcement agents, by the popular press, financial institutions, marketers, private corporations, scientific researchers, psychological experts, data aggregators, also by their own doctors, employers, teachers and neighbors.

the proliferation of techniques for making citizens knowable from credit reports could also offer opportunities and security. well could to wo also threaten personal autonomy. undermining the notion of a freestanding individual. likewise, we have to remember that to be unknown and to remain unknown could be in some ditexts a form of sempowerment, although, in

others, it was a sign of a privilege. the identifiable to a social welfare agency, the social security administration that received benefits for unemployment or retirement with a different matter than the traceable in a national, criminal or database. given the number and range of parties that aim to know them, modern americans rightfully wondered what parts of the own -- one's personality, identity, biography, psyche they had ultimate claim to. how much should the society be able to gleam about its own members? how much should oneself willingly revealed themselves to others and make public? what aspects were worse knowing and which aspects were truly one's own? what would a knowing society mean for the people cause -- its embrace? these would touch every asset of american life in the 20th century. the history of the noncitizen is -- known citizen is quite

winding and unpredictable. it is a challenging history to plot. a couple of examples are the case of something rather mundane, the social security number in american culture. assignedan item first to the u.s. workers. the plan was to give individuals a unique identifying number. it kicked up some political controversy. this rather quickly subsided. the rewards of economic security seemed to outweigh your answer. of one's history being visible to the u.s. government. the social security number would become a badge of inclusion. even a mark of economic citizenship, and belonging. although it is hard to fathom now, there was a flourishing

market for bronze social security number plaques and plates. they embedded with their individual numbers, rings and necklaces. somewhat further than this, permanently inking social security numbers on their size or their biceps and what newspapers heralded as a boon for the tattoo industry. >> i bet that ended after world war ii. >> soon after world war ii. although not immediately, interestingly. through the 1950's, social security numbers had a white quite public face. specific numbers were broadcasted in radio contests. a reversalr 1960's, was at hand.

social security numbers were increasingly recognized as the linchpin of a vast network of data banks that house personal information. decades after their debut, social security numbers are up to does a political issue, prompting the creation of a federal tax force, multiple congressional hearings. as social security's commissioner would concede, the agency's record constituted one of the world's largest concentrations of personal data. much of it is instantly retrievable from computer records. the social security number would then become swept into a larger critique of what some called the records of prison. a brand-new threat to american civil liberties.

the very same item can be transformed from a semi public badge into a highly private piece of information as the technological, political and bureaucratic ground shifted. in other cases, the traffic moved in the opposite direction. at the very same moment, the social security number was becoming private. what was once closely guarded secrets, sexual, emotional and autobiographical were moving out into the open. prodded by watergate, therapeutic culture and the air of social movement, many by the 1970's clamored for transparency in law, politics and even private life. this was a hallmark of second wave feminism. it was evident in many other places in american culture. in documentary film, for example, lawmakers voluntarily disclosing their tax returns.

in the emotional tenet of television talk shows. eventually in the outing of gay public figures and celebrities and in the publishing phenomenon of the 1990's. the personal memoir. secrets -- the -- ity currency became would become known as the decade of revelation. marked by what one critic called the inexhaustible eagerness of people to tell their life story. some critics say that even more worrisome than improper prying into american private lives by authorities was the extrusion of personal matters into public places.

when one observer lamented that the destruction of privacy is the great collective project of our time, this is what he was referring to. pleaded another, is there not something to be said for the unexamined life? this new insistence on revelation accompanied heightens concern about citizen's ability -- it does suggest how potent privacy talk was in helping americans to navigate the pole ull and push of a knowing society. its rewards as well as its risks. what remains to be seen is whether we can interweave these various streams of five c talk into a deeper and more satisfying account of how privacy has come to matter in a modern america.

how to chart these shifts in american thinking about american intrusion and is quickly changing social web. matters as different as sexual relationships, personal data, political rights and do theytual items -- move in concert or have they almost uncertain tracks? what relation does the privacy that citizens claim as a constitutional right. this is on my mind right now as i finished a book on this topic. it is not only for my own sake that i hope historians will be

open to tackling this question. i think our history is not of privacy but political culture. thank you. [applause] >> give me a moment. this is on my ipad. it is what i wrote last night. on a very long plane ride. or longer than it should have been plane ride. thank you. this is a reflection on the wisdom and the knowingness of these papers by someone who is less wise and less knowing. but, take it for what it is worth. illustrate givers the protean quality of privacy. sex, protection from sexual attack. what is it all about? let me use these illuminating papers to make two suggestions,

very much, i mean them as speculations. both come out of my peculiar background and my interests in some recent ratings. these suggestions are stimulated by these papers, not founded on anything like expertise. the first is that we think of privacy through the lens of property law. we work to track its dimensions in ways that paralleled the growth and elaboration of property law. as it moved in the 20th century out and away from land to incorporate information and images in the body. best and the -- images and the body. as private spaces disappear and private dominions and relationships become contested, . if we think about privacy through the lens of property i make that suggestion because one conventional starting point for privacy -- it

would be with the home, the 17th century conceptions captured and incompletely in the fourth amendment, some people possess private spaces. to borrow the civic republican discourse that possessing and properly governing a household became entitled to self-governance in a public sphere. and to protect from things thrust upon them. the story of privacy is largely about what happens when such claims move outside of the home towards images of the self and when such claims attached themselves to bodies that should have remained in private. women preeminently, but also children and others. bodies that became unprotected from patriarchy. bodies engaged in new relationships. the story of privacy, like the

story of property law explodes in response to technological and commercial and governmental changes that are the conventional wisdoms of 20th century history. to the automobile. toward sex, obviously, but also toward various forms of intellectual property. and ultimately, to the extent that one owns one's information , like the social security number. my new colleague has written brilliantly about how privacy gets tied up with involuntary movements and behaviors. involuntary facial expressions. the taking of that which could not be controlled. as with other -- sex is a surrogate for that but she means more the facial expressions of early photography.

as with other property claims, other assertions of private dominion, privacy always generates contrary and competing claims. this is to appeal to privacy and make an argument. to invoke what duncan kennedy once called the fundamental contradiction, every claim to isolation or protection from others is always matched by a competing need for connection and for relational identities. modern americans want many things, only some of which are satisfied by privacy times. just privacy claims. -- by privacy claims. there is a public than wants to know many things, there is a government that things a contempt or public ends by knowing many rings. there are commercial interests that understand themselves as a right to thrust into public spaces to violate privacy. there is a claim that we feel safer when much is known about others, when privacy is limited or violated. a student of mine is about to

finish a senior thesis about and obscure prison rights case in the mid-1970's that took place after a riot in the bedford hills women's prison, it is called -- would prisoners privacy rights? -- would male guards in the prison violate the prisoners privacy rights? feminists were split on this question, radical feminists against liberal feminists, a classic debate. eventually, the aclu women's rights project led by ginsburg took the side of the union and the male guards and one equality trumps privacy. it was a very close and complicated question. i could go on borrowing examples that the panelists raised a so paper givers would agree with -- raised so brilliantly.

i don't think any of the paper givers would agree with this formulation but that is the provocation. do these papers and the books , to use the familiar cliches of historical practice, a lost world, and will we have a lost, foreign country? was there an age of privacy? perhaps one that began as property conceptions were free from land in the late 19th century. as information became of value in addition to the war. you can look to the ins versus a peak is from 1919 which may be important. also, the automobile as this weird private space that has lived on public spaces that is subject to pervasive regulation. not to mention photography.

as corporations like to create an satisfied a demand for information and the right to privacy group and flourished for a time, let's call the 20th century, eventually became constitutionalize at least around sex. drawing on the suspicion of the state that developed on both the left and the right. the aclu was a crucial actor in this on every side. and then, it ended. when, i think that is a metaphor -- a matter for historical inquiry.

a certain familiar sensibility that i think is actually in all three of the papers is maybe gone today. that is the surveillance that was the foundation for a great john mack of paranoid filmmaking in the 1970's. think of gene hackman in the conversation or three days of the condor. or any number of spy films, is today a ho-hum cars of everyday life? we imagine the cia and the fbi as the good guys. not how i grew up. i spend most of my childhood out of sight of my parents. living in the privacy of boyhood in the 1960's. they would not have wanted me to buy pornography. i could go and buy and read it in the gully behind my parents ' home and no one would know. i never worried about a camera recording me. my grandchildren will never have that experience. ta great political theorist publishing wonderful essay about how meaningful the right of

privacy is for human flourishing, the heart of the piece is a reflection on the affront he feels when he walks through a park or public space knowing that somewhere, surveillance cameras are watching him. he doesn't have to see them to experience what they are doing to his sense of well-being. george is well into his 80's. i fear his world is gone. as any reader of the news knows. when the age of privacy and it -- i think it is worth thinking about. i have a suggestion of what to look at first. the moment beginning in the 1980's and 1990's but increasingly after 2000 when we voluntarily gave up information for convenience and for things. when all of us signed the boilerplate language that allows amazon.com to sell and aggregate our information about what we read and what we buy in exchange for quick turnaround.

the easy pass tool, those of us who live on the east coast that allows us not to wait in line on the turnpike. my paranoid friends on the aclu have refused to get there easy easy pass. i think they're crazy because i hate to wait in line. there is more to be said and written about habits of self exposure as sarah mentioned both on the web and in memoirs. there is more to be said about the desire for security and safety that leads to acquiescence in pervasive surveillance. resistance seems futile but i might start with corporate america. my points are those of a historian. and someone who thinks in terms odization, not a moral ist.

when privacy was a value to fight over and argue over. that era had a beginning and it has now ended. during that, much, if not all that was thought to be privacy closely tracked a change in domain of property law. or, so it seems to be. i will stop there. [applause] >> i am reluctant to speak on behalf of leeann even though she was very disappointed not to be here. although, i will say, just in response to what he said, one of the inspirations for her recent book was conversations with her students and she was asking them about whether they watch pornography and what really surprised her was that students, both female and male, just

assumed that pornography was a first amendment right. which shocked her as a scholar of obscenity law. in fact, we have a phd student in our program on how we just so -- doing a dissertation on permission and how we just so easily give up our permission to all of our information, that that does sort of give credence we generationally, historically, we need to contextualize what privacy is in different generations. it's a very cogent point. >> i have all kinds of responses to what you laid out there. i really appreciate it.

a quick thing on this -- the property law point, which is i think that it's right that american notions about privacy have never totally untethered from a property understanding so that ownership gets entangled with ideas about privacy, even as those claims are kind of virtualized to move out to image and information. which is really interesting. i've been thinking a lot about how people become owners of their personal information. we think that we own it but it was always owned by other agencies and it's only recently that we have owned that stuff or claimed to own it. that was something people never had access to before the 1970's. this is such an interesting issue. i might argue not that this is the golden age of privacy.

-- that there was a golden age of privacy. i don't think i would agree. i might argue that the beginning s of our current moment -- i will argue that -- in fact, exactly at the moment that there is a public discussion about the loss of privacy is when something new begins. so, the beginnings of the end of privacy are in fact the beginnings of our modern conception of privacy. i don't think we are at the end. i think there's a very important and new, though historically

informed discussion about privacy going on right now. i think our conventions around it are changing as we adapt to a new technological, bureaucratic, political, cultural landscapes. i do think that surveillance -- people have argued, are we at the tipping point, are we about to tip into something completely different? they've been arguing that for a long time. are we at the end of something when what was predicted as science fiction in the 1970's is all around us or are we reimagining what privacy can mean in that world? can i say one more quick thing? one element of our current landscape is the use of surveillance against the survey ilors.

these new words that keep getting invented like doxxing and so forth, they're tools that everybody's got, allowing people to enact surveillance. maybe something that's new in our current moment. >> my response to your comments would be to kind of project this -- reject this whole idea of beginnings and ends. i think it's ongoing and it's just about shifting the balance. if we think about, do we have more privacy today? the instinctive answer would be no, we have no privacy today. but think about the way with which you could live in your home all of the time and not have to go outside and interact? is there some kind of privacy that affords us at the same time it's stripping us of our privacy? people say we all want to publicize ourselves. if you look at the very contentious debates over information privacy that we read

about in the news, the whole verdict was wildly popular. it spurred national discussion on how the media has gone too far and how aspects of life would remain private. we stick privacy in a different balance in different historical periods contingent on technology and other factors. to say there is a golden age or it's gone now doesn't really capture this tension and nuance that i think more accurately describes the story. >> i will take names. would you please identify yourself? >> great, great panel. great discussion. i think a point across all three you start to move a

little bit away from a legal concept or even a part of the public culture and get to the complexity, which i think, sarah, you're wrestling with, all the changes in the economy, technology, business, someone somewhat incoherently but formed into things that are more solidified. i think another way to make some sense of this would be to think in terms of -- kind of abandoned something that is impossible to abandon. the moral sense about privacy. privacy and surveillance are essentially power struggles between different actors. of course, i can shield myself from corporate intrusiveness through privacy but then they say, we can't comment on that.

universities do it all the time. that is a personal matter, we can't comment on that. it's constantly going back and forth. i think it is important not to allow privacy to be seen as the golden child. and surveillance as this dark thing. ,here's counter surveillance there are ways in which privacy shields people in terms of public figures. you look across the world -- in brazil and england and france , there's privacy laws keeping personal information out of public hands.

[indiscernible] >> i wanted to get in on this before we go. the process by which the information that is made public that violates privacy is really slighted in the history of privacy in a way that makes it difficult to put together. by the time we got to the end, we were talking more about surveillance. exactly where that started in our previous discussions of privacy, it wasn't clear. surveillance is an interesting disruption event.

it seems that there was never surveillance -- we talk about whether there was ever privacy. it's clearly not the case. our discussions focus on technology. surveillance without technology. a lot of that periodization of privacy gets screwed up. because we are drawn too much to the technology. we have had surveillance for a time. people following people and writing things down. that continues. you talked about the history of privacy, parts that nobody else does. i would be really interested in hearing you all talk about why where you see surveillance and

conflicting and why we find it so hard to talk about surveillance at the same time as privacy. it is interesting in that you are not often perceived as violating privacy because they don't publish the information that they find, they share it with a client, and therefore, they are not invading privacy in the classic sense that the law deals with it. i find it challenging to attach my narrative of surveillance to the narrative of privacy because it's not public information. i'd really be interested in hearing how you think of the relationship between surveillance and privacy and why we have such a hard time managing to talk about those two things at the same time. people are always watching people. >> sure. i've also been looking a little bit at private investigators who certainly, in the 1950's, as they roam around suburbia and in cities, are considered a privacy

threat by people because they are giving up all kinds of information, whether working for insurance agencies, credit agencies, people looking for cheating spouses, or whatever. i don't see a way to really think about the history of privacy without thinking about surveillance. i think there might be a difference between thinking about surveillance in our contemporary sense and surveillance practices which of course have always been around. helpful for's been me to think about practices of prying as adding up to something that, by the late 1960's, early 1970's, it's called a nd announced as a surveillance society. i think it might be useful to think about when those practices come to be recognized that the people who live in a society as a really important framework for how the society runs based on processes of monitoring and

observing citizens' behaviors, actions, so forth. i know there are some people who work on surveillance who really don't like the word being attached to all those earlier practices. there's maybe an interesting debate to be had. i do think a surveillance society might be something different than the fact that we know that people are always seeking to know about different people in all periods, eras, places. that may just be a response based on -- >> i would say that there is a surveillance aspect of the privacy story in america in that 20th century. that is the 1950's. there was a lot of public concern not only about state surveillance but also private detectives and the new

technologies that were coming out, new hidden cameras, recording devices. also, consumer surveillance. department stores, restaurants installing hidden microphones, two-way mirrors. so, there is a moment where surveillance, not only by state actors but a variety of parties, emerges as a panic. >> that sounds to me like a story of the middle class. it belies the population of the united states to be surveilled. pinkerton intruding in working-class populations across the country on a massive scale. the state would take that over in the 1930's. private organizations doing

surveillance dwarfed what happened after the 1950's. i think the problem with that narrative is that's a middle-class story. the middle-class experiences surveillance. working-class americans, african-americans, radicals are subject to a surveillance state from well back in the 19th century. i think we have to be wary about the middle-class experience being somewhat distinctive. both of those narratives work really well. the corporations that i think you were talking about in an interesting way who ruled surveillance in the first half of the 20th century. the story of pinkerton has to be part of the story. >> sarah, vanderbilt law school. i want to ask about some of the comments about property and corporations.

i want to ask about the other connotation. the approach to government, public sector investment. the reason this came into my mind is, when you're talking about the gawker case, and that we don't get to talk about the question because gawker went bankrupt and they dropped the lawsuit, it speaks to how these are determined through private litigation, so we don't necessarily have an open, deliberative process. i think the gawker case has even more layers to it then your -- than your description hints at, because peter thiel was funding this because he was angry at gawker. you basically have private wealth, people can find

litigation, being able to pull questions off the agenda. i'm curious if you can talk -- is some of the anxiety that because we have a government structure that makes all of those questions kind of subject to private deliberation or corporate decision-making or private litigation rather than a more open public debate, which might explain the differences in europe? >> thank you. my question touches on the earlier discussions. namely, i'm interested in thinking about the corporation and the state, how similar and different they are about privacy. in both cases, you need the state to know you, recognize you, such as a social security number.

people who have no id can't access health care or anything. that is a huge problem. yet, at the same time, part of the worry about state surveillance, because the state has authority and power. i think there is an interesting question about corporations in that way. ads that don't have anything to do with me. don't you know me better than that? you have so much data on me. duelinghave these anxieties -- corporations are able to profit in a way from unintended uses, where i give up certain data because i want to use facebook messenger. >> i spent six years as a board member of the new jersey state aclu board. there was a retreat at one point

after 9/11. clearly, there was a whole series of issues. the retreat was to decide which does -- decide what should be the policy priorities of the state aclu board. i was then put on the privacy subcommittee. i tried to argue that amazon.com ought to be a privacy concern, this sort of giving up of data. it was a fundamentally older group of civil liberties litigators, they just didn't believe it. for them, the state information was the problem. the voluntary giving up of information just didn't resonate. that's now a decade ago and i would be curious if a similar moment, you would have the same

they did in 2006. >> i'll try to make a quick response to that. one thing that has really intrigued me at looking at this question is the blurriness between corporate and state, especially from the perspective of people worried about privacy. there's not a lot of drawing of lines between those entities in how people think about privacy. a credit report is just as bad as the federal government knowing this about you and so on. material practices on the ground do not always seem to match up with privacy scares. it's the kind of politics of attention. the things that get attention, of course, have middle-class concerns. we have to think about who the subjects of privacy are. slavery is a surveillance system but we don't think of that in a surveillance way.

to my mind, americans have come late to this issue of corporate invasions of privacy, although in the 30's, my research on social security numbers has shown that americans were much more willing to trust the state iren there -- than the employers with personal information. they saw the state as an intermediary between themselves and their employers. there's a very mixed history. i think our tendency is to say that americans fear the state most, but i don't think that's right. >> could you identify yourself? >> we were having this discussion. a health care company had her come in and they took all of this data.

the carrot is, we'll get lower health care costs if you give us all this data. you put on a fitbit even you go to the gym. to entice you, they give you coupons, they pay for your gym membership, all of this. we talked about that. this corporation, this health care company has all of this. what if the state takes away protections for pre-existing conditions? comes in andstate now tells that corporation, you can use that data not to give that person health care. kind of scary. >> dan woodford, university of texas at dallas. the discussion seems to indicate that privacy is kind of an individual good, or at least that seems to be formulated as an individual good. i didn't hear much about family

distinction between associational rights or family , thinking of any intermediary social formation that is not an individual sort of right. i'm wondering about that, is that just a characteristic that does come to a kind of property law formulation, and is just about individual control, and therefore, everything that is an invasion of privacy and revolves revolves around individual rights? it obviously shapes the discussion. that doesn't mean there could be n't be an alternative. >> you're saying that there haven't been alternatives -- maybe in law, but there haven't been alternative formulations

throughout american history of a different distinction between the public and the private that involves some other association or level of social life that carries some kind of private protection? not the law, necessarily, but in cultural conception. >> public decency has been invoked, so that would be an example. >> also, as derek pointed out, sort of proprietary, 19th-century ideas of household. aggregate privacy. there was no privacy at all for women in the 19th century. but also, corporations have privacy. there are plenty of collections. even social groups. one of the interesting debate s that emerges is about the 1960's is about the rights of groups and how they

will be known in public. african-american residents of a housing project, do they have a kind of collective privacy in terms of their representation? lots of different -- i think the american idiom is very individualistic. our collective rights to privacy -- you see plenty associational or collective rights to privacy arguments. >> you were doing history of public parks and what does it mean to be in public parks. there was always a certain level of private freedom to have a barbecue in a public park which is understood as associational. having sex in public is not on that line. certainly, having gay sex is not a private freedom. that virtue, the collective good -- that version, the collective good of being able to have private space within this public space, i think, the early makers of the public parks thought in those ways. i wonder, just again to play my periodization card, having

cameras everywhere in public parks changes that dynamic. play particular, slightly forbidden games in one corner of the park without thinking someone is going to watch them. it changes the dynamic. and maybe makes it much more sharply felt, the distinction between public safety and children having to be protected, whatever the public rhetoric is and the individual freedom. i do think surveillance is an important one. yes e? >> one of the events of the late 19th century was the advent of the secret ballot. in your historiography, does

that influence the way people thought about that? >> i have an undergraduate student writing on this topic, switched from private balance to fcc transparency, the fair election commission. when does privacy seem to enable public action and deliberation and when does it seem to impede it? i think that's an interesting way to think about political privacy, another interesting strand in all of this. what does political privacy mean, what is it good for? in that sense, i think it's another really interesting dimension in another difficult to get your head around subject. >> one more question. it's 12:30.

thank you all so much. >> thank you. [applause] weekend on american history tv on c-span3, tonight at 10:00 eastern, a 50-year-old cbs broadcast with robert taking and ronald reagan questions via satellite from students in london. >> in england, there's a would the candidates like to comment on this? perhaps other countries may learn from america's experience. >> the minority groups, particularly the negroes, but some other groups, the mexican-americans and indians, we just begun to recognize it and are starting to deal with it. >> georgetown university professor brian taylor on the

military strategy and political goals of emancipation during the civil war. >> the idea that a president in the event of a war over slavery and rebellion of the southern states might have the authorities to emancipate slaves as a military measure predates the civil war. it's articulated by john quincy adams on a number of occasions. polistory professor paul dart talks about the 1790 debate on slavery and race. >>'s series of petitions that generated this heated debate, anti-slavery activists and the pennsylvania abolition society puts forth a vision of a new nation that imagined a racially inclusive republic where the basic rights of enslaved africans were respected. charles on letters exchanged between abraham lincoln and his friend, joshua

steed. encouragedormal and to be expressive about intimacy and connection and even love. as long as the boundary against sexuality was absolutely and starkly maintained. >> for our complete schedule, go to www.c-span.org. >> c-span, where history unfolds daily. created as aan was public service by america's cable television companies. and is brought to you today by your cable or satellite provider. c-span's american history tv is at the william trent house, the oldest house in the state at nearly 300 years old. it is the city's