A Zone To Stay Out Of

By David Ignatius
Sunday, July 15, 2007

Is life "on the record"? Seriously, should someone going out on a date clarify whether the evening's events are on "background"? In conversations with our neighbors, should we specify that we are operating under the Chatham House Rule, in which our comments may be used but not attributed to us by name?

These are journalistic conventions, you say, not applicable to ordinary folks. But nowadays, in the age of blogs, everyone is a journalist: Foreign service officers write blogs about diplomacy; soldiers write blogs about fellow grunts; singles write blogs about their dating lives; high school and college students post comments on Facebook and MySpace that amount to an intimate open diary about themselves and their friends. They are all reporters without press cards and also without professional standards of conduct.

What are the ground rules of life? Can we assume any "right to privacy" in this digital age when everything we say or do can become part of a permanent record that anyone -- friends, enemies, the government -- can access? With cameras sprouting on every street corner in Washington and New York (and have you checked out your nearest interstate lately?) should motorists just assume that their zone of privacy ends when they leave their driveways?

Privacy isn't what it used to be, certainly. A woman known as the D.C. Madam disseminates her phone records to fight charges that her "escort service" is a prostitution ring. The disclosure exposes a first-term senator named David Vitter. Well, fine, you say, Vitter is a noisy "family values" conservative who should be indicted for hypocrisy if nothing else. But what about the thousands of other people whose phone numbers are on the D.C. Madam's call list? Are they fair game?

And what about those whacked-out celebrities who seem to exist to be photographed in embarrassing situations by Us, In Touch Weekly and other high-minded publications? They invited it, you say. They're celebrities!

But surely there is a zone of privacy even for the famous, so that Jennifer Aniston shouldn't have to worry that she will be photographed topless at home. That's what her lawyers alleged in a December 2005 "Confidential Legal Notice" that claimed: "The paparazzo took the photographs covertly from a great distance which we believe to be more than one mile away." (The "confidential" memo, by the way, was published on the Web site the Smoking Gun, which specializes in this sort of interesting dirt. The site currently features pleadings in a lawsuit by a Texas woman against one of her high school pals who allegedly stole her name and used it as a moniker in porn movies.)

A surprisingly modern (if G-rated) discussion of these issues is a famous 1890 article on "The Right to Privacy," by Samuel Warren and Louis Brandeis, who was later a Supreme Court justice: "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.' "

Back then, the intrusive devices were simple cameras and telephones, rather than cellphone cameras that can take pictures anonymously and instantly distribute them anywhere in the world. But the essential point remains the one made by Warren and Brandeis, which is that people have a presumed, common-law "right to be let alone." They warned about a world in which any gossip is deemed fit for print: "Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence."

Seth Waxman, a former solicitor general, makes a similar point about what happens when life is "on the record" and everyone becomes careful about what they say for fear it may be disseminated: "It hampers the ability of each one of us to fully explore ideas."

Journalists habitually argue for broad disclosure of information, bolstering our case with such bromides as "sunlight is the best disinfectant." But major newspapers recognize that people have privacy rights, too. Newsroom lawyers remind journalists that they can be sued for "public disclosure of private facts" in certain circumstances and that newspapers shouldn't publish information about private citizens that would be "highly offensive to a reasonable person" unless the information is independently newsworthy or the subject consents.

Similar standards about privacy should be shared by all the modern varieties of "journalist" -- reporters, bloggers, Facebook posters and the rest. The alternative is a world where everyone becomes so careful about what they say and do that normal life -- including dumb statements, stupid mistakes and general obnoxiousness -- becomes impossible.

The writer is co-host of PostGlobal, an online discussion of international issues. His e-mail address isdavidignatius@washpost.com.

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