New Republic Editor Discusses Violation of the Right to Privacy
SPEECH: Jefferey Rosen said that privacy rights have eroded over the last 100 years

UCSD Guardian News
May 28, 1998

Jefferey Rosen, legal affairs editor of The New Republic, delivered a speech focusing on the withering right to privacy that permits the public disclosure of private facts, especially in politics on Tuesday at the IR/PS Robinson Auditorium.

"Every violation of privacy seems to spark new invasions of its own," Rosen said.

Rosen cited the example of Rep. Dan Burton, chair of the House Committee on Governmental Oversight, who recently released edited transcripts tapes of Webster Hubbell talking to his wife. Hubbell is currently serving a prison sentence for tax evasion.

When Burton came under fire for releasing the edited transcripts, he released the entire tapes to the public.

"I, like other journalists across the land, recently had the experience of sitting in my living room and listening to Mr. Hubbell and his wife have a private conversation about meatloaf," Rosen said.

According to Rosen, the release of the tape was "a substantive assault on the autonomy of Mr. Hubbell."

Illustrating how privacy rights have gradually eroded, Rosen compared the privacy rights of John Wilkes, an Englishman in the 1700s, and Senator Bob Packwood, censured by the U.S. Senate in the 1990s for poor conduct.

In both cases, Wilkes and Packwood kept personal diaries of their lives. Unlike Packwood's situation, however, when Wilkes' diary was seized by British authorities, he was able to successfully argue that the journal was illegally confiscated.

Rosen said that the U.S. Supreme Court, through its decisions, has whittled away at an American's right to privacy over the past one hundred years.

"It wasn't the Progressive Era Court, and it wasn't the New Deal Court that delivered the last blow against the right to privacy, it would be the liberal Warren and Burger Courts," Rosen said.

Rosen said that this was ironic because of the fact that the Supreme Courts under Chief Justices Earl Warren and Warren Burger are considered to have handed down sweeping decisions on abortion and contraceptive rights.

"At the same time that it was ... exalting the right to privacy in these sit-down cases involving sexual autonomy, the Court was absolutely chiseling away in the cases where privacy was really at stake," Rosen said. "Cases regarding the privacy of papers, houses and persons. It was the criminal prosecution revolution of the 1960s that killed the right to privacy."

At first, the Warren Court made it unconstitutional to admit evidence in court that was confiscated without a warrant. Rosen said that this judgment was too oversweeping and did not give consideration to informal searches, such as metal detectors.

As a result, the Court decided to broaden the powers of law enforcement officials, investigators and grand juries. Rosen said that decisions were made permitting law enforcement officials to access material after it has left a residence, further reducing the right to privacy. Rosen cites examples of garbage, dropping clothing at the dry cleaners and electronic mail.

"The effects of these decisions is chilling and dramatic in an electronic age where we are forced to store intimate personal data from medical records to e-mail to computer files outside your home," Rosen said.

The emergence of the information age has brought forth both possible new privacy invasions and new safeguards against them. Rosen said that Vice President Al Gore recently announced a plan for an "electronic Bill of Rights" allowing for data to be protected from scrutiny.

Rosen argued that there should be a reasonable level of scrutiny for different groups of people. For example, Unabomber Theodore Kaczinsky, convicted of mass murder, would be held at a higher level of scrutiny than Monica Lewinsky, being investigated for perjury in a case that has been dismissed.

Rosen admits that it would be difficult to define reasonable levels of scrutiny for the judicial system and journalists since everyone is interested in the sex lives of other people.

"It leads me to believe that there is a little Ken Starr in all of us -- an inquisitive imp eager to sift through diaries and listen to sex tapes even as he purports to abhor them," Rosen said.

Besides writing for The New Republic, Rosen has published in The New Yorker, The New York Times Magazine, The Atlantic Monthly, Constitutional Commentary and the Yale Law Journal.

Rosen is also an adjunct associate professor at George Washington Law School.