Professor Amy Gajda on Privacy Rights and Technology

Today, we feature an interview with Amy Gajda on the right to privacy in a digital age. Amy Gajda, Tulane Law School’s Class of 1937 Professor of Law, is a journalist turned lawyer recognized internationally for her expertise in privacy and media law.  Much of her scholarship explores the tensions between social regulation and First Amendment values, particularly the shifting boundaries of press freedoms and rising public anxieties about the erosion of privacy. Most recently, she authored the acclaimed book Seek and Hide: The Tangled History of the Right to Privacy, which we discuss in this interview. We are grateful to Dr. Gajda for sharing her time and expertise with us!

Q1:  Thanks for responding to these interview questions at a time when you must be very busy starting a new law school teaching year and no doubt receiving many requests for comments at this fraught time for privacy as a constitutional right.  Is there a dimension in your own life experience that has drawn you to research and write about the tension between the public’s “right to know” and individuals’ “right to be left alone” discussed in your new book, Seek and Hide: The Tangled History of the Right to Privacy?  

Thank you for having me!  I love this question because it causes me to think about external and internal inspirations.

 

First, whenever I’d give talks about privacy to general audiences, people would routinely come up to me and say, “Privacy doesn’t exist today.”  I found such a disconnect between that sort of belief and what was happening in courts and state legislatures where, since the 1990s, privacy in a legal sense had been on the rise in very surprising ways.  In law, because much can be based on societal norms, the more people think that privacy doesn’t exist, the more likely it won’t exist.  So this book was in part meant for them, to explain why we do indeed have privacy in a legal sense in the United States and always have, why it’s important that it exists, but also why there must be a balance between privacy and other interests because too much privacy can end important inquiry.

 

Second, I worked for a long time as a journalist before I became a lawyer, and in my journalism work I understood that journalism’s ethics principles restricted certain reporting of truthful information.  I’d never learned a thing about the laws that restrict such reporting, however, ones that were in seeming conflict with First Amendment principles, and so when I became a lawyer I instantly found those fascinating.  It’s long been a privacy wrong in the United States to reveal truthful deeply personal facts about someone, for example, or to set up a hidden camera and record them when they are in a private place—and those legal principles in tort often parallel the ethical principles that I learned as a journalist.  When journalists cover fatal car accidents or other tragic deaths, they do not take certain photos let alone use them, so it’s not surprising to me that modern courts have found family privacy interests in death.  The book reflects those parallels between privacy law and journalism ethics because I’ve been fascinated by them for a long time.

 

Finally, I’d started researching the background of the famous law review article titled “The Right to Privacy,” one published in 1890, and pretty quickly learned that there were several intriguing backstories there. That research expanded to include the Founders and their rather shocking embrace of privacy principles, which today is highly relevant to the question of privacy as a constitutional right.  I say shocking here because we hear so much about their embrace of press freedoms, but they believed in and worked for privacy too, sometimes in decidedly self-interested ways.

 

Q2: Seek and Hide has received numerous favorable reviews around the country including in The New York Times which headlined it as “grappling with the complexity of the right to privacy” and called it “wry and fascinating.” Even one of our federal Courts of Appeal recommended it as summer reading!  This is a book by a law professor about legal history that is appealing to a mainstream audience well beyond the legal world.  As you interact with readers, to what do you attribute the popularity of the book?

Thank you.  I’d like to think that the importance of privacy resonates with most people today—and I hope that readers find the privacy-relevant and often twisty tales from the 1700s through to today that I include in the book as intriguing as I do.

 

Q3:  More than almost any book I can recall, I found myself yo-yoing between a desire for vindication of press freedom in the face of powerful men who sought to protect themselves, including all the way back to Alexander Hamilton and Thomas Jefferson, and anger at the abuse of press freedom when it grossly invaded the lives of people with little privilege or power.  How much is power and its protection and abuse the fulcrum of the balancing act courts are constantly doing between the right to know and the right to be left alone?

I love this question too because that’s in part what I hoped to do in the book: to show through these stories that absolutism is dangerous, that there is no way that privacy or the right to know (or truth itself) can win every time.  Like you, I’m horrified that we let President Thomas Jefferson, known in part for flowery phrases promoting a free press, jail journalists in part to help keep his relationship with the enslaved Sally Hemings out of newspapers, and that President Warren Harding used journalism ethics to help keep his continued seduction of an awe-struck teenager in hotel bridal suites quiet.

 

I’m frustrated that public officials today argue for similar cloaks of privacy and sometimes win—and this is so even though law is supposed to offer those people in particular very little privacy protection.  I argue that those modern wins on privacy grounds are more often the result of judges interested in breaking media and its excesses than in protecting the powerful.  The language that courts use in such cases at times treats the public official more like an everyperson and that’s frustrating because I’d rather courts grapple with the issue of newsworthiness than pretend that a prosecuting attorney or a famous person deserves the same level of privacy as the little guy.

 

That’s why I say that the right to privacy, as important as it is, can be dangerous when used expansively to protect the powerful.  It can lead to darkness in places where there ought to be sunlight.

 

But, as you suggest, the media in its broadest sense does need some reigning in.  Websites that exist solely to publish embarrassing deeply personal truths regarding medical information, for example, or databrokers that share people’s secrets without knowing consent should be held accountable.

 

Q4:  The through-line in your book from beginning to end is Louis Brandeis’ and Samuel D. Warren’s 1890 Harvard Law Review article, “The Right to Privacy”, which, as you note, could be said more than any other piece of non-judicial legal writing to uniquely create an important American legal right.  The story you tell of how the article came to be written and promoted by Brandeis, and Warren’s own battles with press scrutiny seem like very modern problems.  Moving forward from that article, you show how the new right they were promoting was a response to yellow journalism of the Hearst era, and then how the Muckraker press in collaboration with Theodore Roosevelt’s reforms and Watergate reporting elevated freedom of the press to a peak, before giving way to increased concerns about privacy in the Internet era.  Are we doomed to a sine wave of more and less privacy as technology and reporting practices it enables interacts with shifting public mores?

It is intriguing that in the late 1800s when Warren and Brandeis wrote “The Right to Privacy,” they were especially concerned about the technology of the day and the ways that it might invade privacy: they used as horrifying examples cameras that could take unwanted photos of Broadway actresses in scandalous tights and newfangled devices that could record and thereafter broadcast family secrets.  The law review article argued in part that technology, including media, had moved beyond the law and that privacy interests had been lost because of it.  That argument reflected the public sensibilities of the day.

 

In other words, worries about that technology is what helped privacy rights blossom in the early 1900s.

 

Today, in the same way, the law is trying to catch up to technology.  This is especially true regarding data privacy, as courts and legislatures try to understand how things work and try to play catch up to protect our data.

 

Through it all, it’s important to remember that we’ve always had certain fundamental protections for privacy in the United States, so the laws may be new and they may target new technologies but the ideals behind them have a very strong foundation.

 

I’ve been talking with privacy professionals about these issues and they’ve suggested to me that ethics is becoming more of a driving force in tech.  If that’s true, that will parallel what happened in the twentieth century too; the law came to trust an increasingly ethical media.  So maybe as tech becomes more ethical, the law will lay off.  Until the next technology comes along and the unethical abuse of it begins, I suppose, and hands start wringing about the potential privacy invasions.

 

 

Q5:  AI and Faith is first and foremost about testing and advocating for the relevance of ancient wisdom embodied in the world’s major religions as a base for ethical behavior in the deployment of technology powered by artificial intelligence.  In your final chapter in Seek and Hide, you suggest that the humanist values most commonly asserted for a right to privacy are human dignity and an interest in liberty.  Similarly though distinctly, many of the faith leaders in our organization would cite individuals’ interest in liberty as growing out of the unique dignity to be accorded human beings as made in the image of God.  Do you see parallels in these value systems for grounding privacy on a firmer foundation than the constant balancing and rebalancing engaged in by courts?

Yes.  As you suggest, liberty and dignity have been used by word or by suggestion in some key information privacy cases throughout the history of the United States.  Shifting more clearly in that direction in information privacy would be a good thing, I argue, because as malleable as these concepts may be, they are utterly fundamental.  Such interests also appear by word or by suggestion in media’s ethics codes and have significant historical support in that way too.  What you suggest about their appearance in religion means that there is significant coalescing from many sides and, as I’ve suggested, societal norms quite literally help define and shape privacy law.

 

The trouble is that some of my colleagues fear that these words can come to harm conflicting liberties and could, for example, come to restrict the reporting of truth.  How would someone’s arrest for murder or a politician’s wrongdoing be reported, as two examples, if the dignity of the individual is paramount?  My colleagues’ worry is that those words in particular can be used to hamper important revelation of truth because they can be used in a dangerously expansive way.  As a former journalist, I’m less worried about this because I know that an individual’s dignity has always mattered in journalism ethics.  And, as a lawyer, I’m even less worried because courts often balance similar competing interests (offensive speech and emotional harm, for instance).  If a focus on the interests in individual dignity and liberty can help combat so-called revenge porn and other hateful privacy-invading posts, I think that’s great. We’ve always tempered speech and expression in some way; the First Amendment has never been absolute.  To make privacy-related wrongs more clearly about an individual’s dignity and liberty could focus judges on the competing side of the scale and that would be a good thing.

 

Q6. In Seek and Hide, you don’t explore in depth the wide range of privacy issues that are emerging in the evolving brain-computer interface (BCI). Is this an area of interest for you?

For sure.  I’m always interested in learning about new technology and how it might reveal more than what the people at issue understand, sort of like how today’s stored DNA test results could maybe one day reveal criminal propensity or some other significant thing that we aren’t thinking about in the moment. Now that I’ve learned more about BCI, I’m excited to discuss it as an example with my students who are already deeply worried about what technology might learn about them without their full understanding.

 

Q7. If so, would you care to discuss the balancing of new potentials of the BCI with privacy concerns? For example, a new generation of “smartcaps” may enable airlines to probe the brains of pilots for signs of depression and suicidal tendencies. That could pave the way for a substantial improvement of airline safety, a clear benefit to the public. It also could pave the way for major intrusions on privacy throughout the workforce. How would Brandeis rule in this case? What do his decisions teach us?

This question is another great one because Brandeis necessarily saw things through both a tort law lens and a criminal law lens.  He represented a major publisher in the first “Real Housewives”-like privacy case, he wrote “The Right to Privacy” that argued for privacy against such publishers, and, as a Supreme Court justice, he helped guide the law toward protection for privacy in cases involving police wiretapping.

 

First, I imagine that in such a situation as you describe the pilots would agree to such intrusion through a contract.  If so, and if they fully understood how the information would be used and decided to work anyway because they too understood the need for safety, I suspect that even Brandeis would be fine with that.  The balancing there between safety and privacy would be fine with him because the pilots would know what they were getting into.

 

But if this were done too expansively in a way that revealed information for its own sake without true consent, then Brandeis would be horrified and would surely rule in favor of privacy.  I say this because of the lines that he and Sam Warren wrote in a torts sense in “The Right to Privacy” about technology and privacy invasions: that the “instantaneous photographs” and the “[n]umerous mechanical devices” in current use and under development would one day reveal a person’s most intimate secrets.

 

But he’d also feel precisely the same way about such technology in a criminal context.  In Justice Brandeis’s important and now highly influential dissenting Supreme Court opinion on police wiretapping, he worried about technology and its potential: that “[s]ubtler and more far-reaching” technological advancements would someday surpass even the “evil incident to invasion of the privacy of the telephone.” He predicted that at some point nefarious people “without removing papers from secret drawers, [would] reproduce them in court” and, in doing so, reveal “the most intimate occurrences of the home.”

 

But what’s even more connected to your question about BCI is that Brandeis suggested that there would come a day when “advances in the psychic and related sciences” would allow others to “explor[e] a man’s unexpressed beliefs, thoughts, and emotions” and he was horrified at that.  Those worries never made it into his Supreme Court dissent because one of Brandeis’s law clerks told him that such a thing could never happen, that it was impossible.  But now, of course, we have BCI.

 

Now we understand even more how very visionary and how very right Brandeis was.  His writings teach us to be wary and to think broadly and beyond the moment about how technology and its advancements might invade privacy and urge us to decide that many times people and their privacy interests are more important than whatever we might learn from a privacy invasion.  Brandeis also reminds us that the Founders, in his words, “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”  And that the “makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness” and recognized the “significance of man’s spiritual nature, of his feelings and of his intellect.”

 

Most relevant here is that he linked all of that with the “privacies of life.”

 

Thanks so much for inviting me to participate in this discussion and to share these thoughts.

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