By the seventeenth century, the phrase “mysteries of state” meant both state secrets and monarchical power and right—not what God knows, and we do not know and must accept, but what the king knows, and we do not. In 1616, in a speech to the Star Chamber, James I talked about his “Prerogative or mystery of State,” proclaiming, “That which concernes the mysterie of the Kings power, is not lawfull to be disputed.” But monarchical notions about the royal prerogative were challenged by the very existence of books like “The Cabinet-Council, Containing the Cheif Arts of Empire and Mysteries of State, Discabineted,” published in 1658. It was an age of political reformation, rich with arguments that knowledge that was once the privilege of the king ought to be revealed, taken out of the king’s cabinet. In the early modern world, a mystery came to mean any kind of secret that could be revealed to an ordinary man. .... In 1844, during the parliamentary debate that followed the report issued by the Committee of Secrecy, some members, believing, with Bentham, that publicity is the enemy of secrecy, suggested that it was fine for the government to open people’s mail, as long as the recipients of the mail were notified that it had been read. (Disraeli said that he would be only too happy to hand over his mail to the Home Office: “They may open all my letters, provided they answer them.”) In “Letter-Opening at the Post-Office,” Mazzini revealed just how much the debate had been informed by Bentham’s arguments about publicity. Diplomats might have their secrets, he granted, but postmen? “Why, who are these men who treat as enemies their fellow subjects of the realm?” he asked. “For public servants, we want responsibility and responsibility cannot be obtained without publicity. Secrecy is but another word for fear. .... Still more influential than Bentham’s ideas about publicity, though, was the growing fetish for privacy in an age of domesticity. (The history of privacy is bounded; privacy, as an aspiration, didn’t really exist before the rise of individualism, and it got good and going only with the emergence of a middle class.) Nineteenth-century Americans were obsessed with the idea of privacy and the physical boundaries that marked it, like the walls of a house, and, equally, with the holes in those walls, like mail slots cut into doors. .... In “The Right to Privacy,” Warren and Brandeis argued that there exists a legal right to be let alone—a right that had never been defined before. Their essay lies at the heart of every legal decision that has been made about privacy ever since. The right to privacy, as they understood it, is a function of history, a consequence of modernity. Privacy, they argued, hadn’t always been necessary; it had become necessary—because of the shifting meaning and nature of publicity. By the end of the nineteenth century, publicity, which for Bentham had meant transparency (the opposite of secrecy), had come to mean the attention of the press (the opposite of privacy). Making public the deliberations of Congress was a public good; making public the names of mourners at Mrs. Warren’s mother’s funeral was not. (The same distinction informed the debate that resulted, in the eighteen-eighties and nineties, in the adoption of the secret ballot. Citizens vote in private; legislative votes are public.) “The Right to Privacy” is a manifesto against the publicity of modernity: the rise of both the public eye (the eye of the citizen, and of the reporter) and the private eye (the eye of the detective). “The intensity and complexity of life, attendant upon advancing civilization,” Warren and Brandeis wrote, “have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.” Modern life, according to Warren and Brandeis, consists of an endless chain of machines that threaten to expose the private to public view: “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” For Warren and Brandeis, the right to privacy was necessary to protect what they called the “inviolate personality.” As a pair of literary scholars has suggested, Warren and Brandeis got part of this idea from philosophers and part from poets. (William James wrote about a “hidden self”; William Wordsworth wrote about “the individual Mind that keeps her own / Inviolate retirement.”) Warren and Brandeis believed that the violation of the right to privacy constitutes a kind of wound—a puncturing of the soul—that might, finally, deaden our minds. The stakes had become, suddenly, very high. Something creepy happened when mystery became secular, secrecy became a technology, and privacy became a right. The inviolability of the self replaced the inscrutability of God. No wonder people got buggy about it. .... Brandeis’s dissent in Olmstead is, in effect, a continuation of the argument that he had begun in 1890. He thought that wiretapping was just a new form of coerced confession—the replacement of “force and violence” by wires and electrical current. At one time, Brandeis said, the government “could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life—a seizure effected, if need be, by breaking and entry.” But, in the twentieth century, he went on, “subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” And the invasion wouldn’t end there. “The progress of science in furnishing the Government with means of espionage is not likely to stop with wire tapping,” Brandeis predicted. “Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” .... One aspect of this story that Congress is unlikely to concern itself with is the relationship, in the twenty-first century, between privacy and publicity. In the twentieth century, the golden age of public relations, publicity, meaning the attention of the press, came to be something that many private citizens sought out and even paid for. This has led, in our own time, to the paradox of an American culture obsessed, at once, with being seen and with being hidden, a world in which the only thing more cherished than privacy is publicity. In this world, we chronicle our lives on Facebook while demanding the latest and best form of privacy protection—ciphers of numbers and letters—so that no one can violate the selves we have so entirely contrived to expose.
Posted on: Wed, 09 Oct 2013 00:49:57 +0000
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