The End of Privacy

by Jeffrey Rosen | February 16, 1998

"It's not their business," Monica Lewinsky allegedly told Linda Tripp, explaining why she was inclined to lie to Paula Jones's lawyers about her relationship with President Clinton, as her friend's hidden tape recorder whirled. "It's not their business." And Lewinsky was, of course, correct. There is something totalitarian about the invasions of privacy that have transfixed the nation during the past week, as lawyers for Paula Jones have issued subpoenas to compel all women who have crossed President Clinton's path to discuss their sex lives under oath, and as Independent Counsel Kenneth Starr has used his subpoena power to compel the president's personal secretary to describe illicit activities in the White House that she may have observed.

Whether or not the Clinton presidency survives the Lewinsky affair, we will look back on this episode as a dark time in which America took on aspects of a police state. How could our Constitution, with its purported devotion to the right to be left alone, permit it? Part of the answer has to do with the dilution of the Fourth Amendment's guarantee against unreasonable searches and seizures--a dilution carried out, ironically, by the purportedly liberal Warren-Brennan Court during the 1960s and 1970s. The erosion of constitutional privacy protections, combined with the intersection of two other illiberal doctrines--sexual harassment law and the Independent Counsel Act--has exposed all Americans to violent breaches of the boundaries between public and private life. And because the president lives and works in the same place, his privacy is even more vulnerable to prosecutorial invasions than that of ordinary citizens.

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and it's no exaggeration to say that prying invasions of sexual privacy were paradigm cases of the kinds of searches that the Framers of the Constitution considered inherently unreasonable. A Boston Pamphlet from 1769 attacked ex officio oaths because they allowed customs commissioners to harass their political opponents with leering and inappropriate questions such as these: "Pray Sir, when did you kiss your maid Mary? Where? And in what manner?... Did you lay with her in a barn? Or in your own house?" (The opponent in that case was Sam Adams, who was, of course, no Bill Clinton.) And, in 1787, a Pennsylvania anti-Federalist gave the following example of a patently unreasonable search: a male constable, he warned, might invade a woman's bedroom, "pull down the clothes of her bed," and "search under her shift."

The late nineteenth century was the high-water mark for constitutional privacy protections. In 1886, the Supreme Court held that subpoenaing a defendant's private papers in order to use them as evidence against him was the equivalent of forcing him to be a witness against himself; thus, it wasn't the "breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense"; instead, the Court held, any " invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life" violated the Fourth and Fifth amendments, which "run almost into each other."

But this robust conception of the right to privacy, as Akhil Amar of Yale Law School describes in his pathbreaking book The Constitution and Criminal Procedure, was undermined in the twentieth century by two forces: the rise of the New Deal administrative state and the criminal-procedure revolution of the Warren-Brennan Court, which turns out to have been far less liberal than most people assume.

During the Progressive and New Deal eras, the Supreme Court concluded that if private papers were absolutely protected from government scrutiny, then the government couldn't require people to keep records in the first place, and the regulatory state would be stopped in its tracks. To ensure that health, safety, and economic regulations weren't impossible to enforce, the Court tended to invent a series of arbitrary exceptions to the constitutional bar on government invasions of privacy. In 1948, for example, the New Deal Court held that the Fifth Amendment wasn't violated by requiring someone to produce records that the government ordered him to keep in the first place, no matter how incriminating or embarrassing the records might be.

But the Warren Court went further still, delivering the coup de grace for constitutional privacy protections. In the sexual privacy cases leading up to Roe v. Wade, the Court waxed grandiloquently about "the sacred precincts of the marital bedroom." But the right to privacy in these cases turned out to be a clumsy metaphor for a very different and far narrower right: the right to make personal decisions about procreation. Meanwhile, in a series of less familiar criminal-procedure cases, the Court dramatically expanded the power of the police to conduct intrusive searches into intimate secrets and, in the process, threatened the privacy of innocent people.

As Amar argues, the Court during the 1960s, exalting the rights of the guilty over those of the innocent, began to focus on the absence of warrants and probable cause--rather than unreasonableness--as the touchstone of a Fourth Amendment violation. By announcing that judges should presume searches without warrants and probable cause to be unconstitutional, and that judges should exclude from trial any evidence discovered in a warrantless search, the Court painted itself into a corner, threatening to make information- gathering impossible. To avoid triggering the onerous warrant requirement for every search, the Court's ill-conceived solution was to pretend that lots of obviously unreasonable invasions of personal privacy weren't really searches or seizures in the first place.

In 1973, the Court held that a grand-jury subpoena ordering suspects to appear in the U.S. attorney's office to record their voices wasn't a "seizure. " The Court's upside-down theory was that because subpoenas don't require probable cause or reasonable suspicion (the whole point of a grand jury is to decide whether probable cause for indictment exists), there couldn't be searches or seizures at all--never mind that it's hard to fathom how ordering someone like Monica Lewinsky to appear before a prosecutor on pain of imprisonment isn't a seizure. And, in a series of related cases, the Court went on to hold that planting microphones in people's clothing, trespassing in people's backyards, and spying on them with binoculars weren't searches or seizures, either. The result was to chip away at constitutional privacy protections at the very moment that techniques of surveillance were dramatically increasing.

Meanwhile, even as the Court was narrowing the scope of impermissible searches, it was expanding the scope of permissible warrants. In the eighteenth and nineteenth centuries, when vigorous protections for private property prevailed, magistrates could not issue warrants for "mere evidence" that a crime might have been committed. "To enter a man's house by virtue of a nameless warrant, in order to produce evidence, is worse than the Spanish Inquisition," thundered Lord Camden in 1763. Only the fruits and instrumentalities of a crime, such as contraband, could be seized, on the theory that they didn't belong to the suspect in the first place. In 1967, however, Justice William Brennan, of all people, issued one of the most pro- law-enforcement opinions in American history: he abandoned the ancient distinction and held that government could use warrants to search the homes of innocent witnesses and seize mere evidence as well as contraband. William Douglas--the same justice who discovered a right to privacy in "penumbras, formed by emanations" from the Bill of Rights in the birth-control cases-- objected that Brennan's opinion threatened "the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses."

Enter Paula Jones. During the 1990s, the vast expansion of the police power to compel innocent people to disclose sexual secrets, combined with the vastly expanded definition of sex discrimination to include "unwanted advances," has led to dramatic violations of what used to be called the " ordinary privacies of life." In this sense, if we need a precipitating agent for the Lewinsky affair, the most blameworthy candidate isn't Judge Kenneth Starr but Judge Susan Webber Wright, the Arkansas judge who permitted the lawyers for Paula Jones to rummage through President Clinton's sexual history in the first place. Even under the relaxed rules for civil depositions, which say that lawyers can use the subpoena power to ask about anything "reasonably calculated to lead to the discovery of admissible evidence," judges can limit discovery when its "burden or expense ... outweighs its likely benefit." Of course, Wright, like the Supreme Court, was bending over backward to avoid the appearance of favoritism to the President, with illiberal results.

In a legal culture that took seriously the value of sexual privacy, subpoenas, like searches, would be subject to a general test of constitutional reasonableness. Indeed, judges might choose to enforce something like a sexual privilege, not unlike the priest-penitent privilege or the attorney-client privilege, that presumptively would shield innocent people from the need to answer questions about their legal, but embarrassing, sexual activities. Presented with a request from Clinton or Lewinsky, according to federal rules, Judge Wright could have issued an order to protect both of them from "annoyance, embarrassment, oppression, or undue burden." But surely the judge should have been sensitive enough to privacy values to limit the scope of discovery on her own initiative; for, merely by asking for a protective order, Clinton and Lewinsky would have disclosed the very secret they wanted to conceal.

One way of thinking about the privacy issues in the Lewinsky affair is to consider privacy in relational, rather than individualistic, terms. Perhaps we should be most concerned about protecting people from being forced to reveal secrets that they have chosen to conceal, and less concerned about protecting information that people voluntarily confide in others. So, in the Paula Jones case, it was a grave violation of privacy for her lawyers to subpoena the widow of Larry Lawrence, the ambassador whose body was exhumed from Arlington Cemetery, to force her to deny rumors that she had been romantically involved with Clinton. And it was inappropriate for the Jones lawyers to ask Lewinsky about her relationship with Clinton, just as it was inappropriate to violate Lewinsky's privacy backhandedly, by asking Clinton about his relationship with her.

In Starr's criminal investigation, the privacy calculations look a little different. It's arguable that, by confiding in Linda Tripp, Lewinsky ran the risk that her conversation would be recorded. In 1971, four justices said that a government informer carrying a radio transmitter could slyly elicit information from a criminal suspect, as an agent glued to a radio receiver secretly recorded the conversation in a nearby room. Because all of us have to assume that our friends might betray our confidences when we tell them about illegal activities, the Court held, the fact that the conversation was taped didn't make the defendant worse off. Since Starr thought Lewinsky was trying to persuade Tripp to lie in a deposition, there's no doubt his decision to wire her would be upheld by the Court today. On the other hand, Justice Harlan, dissenting in the 1971 case, worried that broadcasting private conversations to secret agents might "undermine the confidence and sense of security ... that is characteristic of individual relationships between citizens in a free society."

In any event, it's clear that the "sense of security" Harlan described is dramatically undermined by Starr's apparent effort to persuade Lewinsky to wire herself to record conversations with Betty Currie, the president's personal secretary. (Wouldn't secret bugging in the White House violate federal espionage statutes?) The Supreme Court has held that people have less privacy in their homes than in their offices, but surely the White House, our national home-office, should have more protection than an ordinary apartment rather than less. And rumors of the flurry of subpoenas that Starr would issue to force Secret Service agents and White House aides to answer questions about the president's sexual activity bring to mind visions of, well, the Spanish Inquisition, and it offends the fundamental principle that innocent people shouldn't be compelled to disclose secrets that they haven't voluntarily shared with anyone else.

As the president digs in his heels, one of the many distressing legacies of Watergate and Whitewater is that there are so few zones of privacy within the White House where Clinton can seek confidential advice. Like the rest of us, the president can't be sure that his confidences will be kept except when he talks to his lawyers. If you tell your friend a secret, she can betray you or be subpoenaed. If you tell your lawyer a secret, because of the attorney- client privilege, she can't be subpoenaed and won't betray you for fear of being disbarred. And in the Nixon tapes case, the Supreme Court held that the president's conversations with his confidential aides weren't privileged. This means that, whatever President Clinton's story, he can't unburden himself to his friend Mike McCurry for fear McCurry will be subpoenaed.

But, unlike most of us, the president lives and works in the same place and is constantly scrutinized, even in his private quarters. And in the Whitewater executive-privilege case decided last spring, the U.S. Court of Appeals for the Eighth Circuit further constricted the circle of people to whom the president can entrust his secrets. Even the attorney-client privilege is waived, the court held, when the president's private lawyers meet in the same room as his official lawyers. This means that one of the few people in whom President Clinton can confide safely is his wife, who benefits from the spousal privilege and the attorney-client privilege at the same time.

It was Hillary Rodham Clinton, on "60 Minutes" in 1992, who lamented the fact that there was no "zone of privacy" in which candidates and their wives could seek refuge. More recently, she described the feeling of being " hollowed out" by the erosion of the boundaries between public and private life. We may be on the verge of a national conflagration, as the president and his wife commit themselves to a version of events that may well be untrue- -with no legal opportunity for a sane counselor to talk them out of it--and, at the same time, the leering machinery of the independent counsel is mobilized to ferret out secrets that never should have been exposed to legal scrutiny in the first place. When the privacy of the body politic is violated, we're all brutalized in the process.

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