5

Codes of Confidentiality and Consent

We are close enough to 1984 … without the science of human behavior being enlisted in this last onslaught on man’s privacy.

—EDWARD SAGARIN,
Review of Tearoom Trade, 1970

In the late 1950s, prominent University of Chicago sociologist Edward Shils suggested that “the deepening of intellectual curiosity about the motives and the very tissue of social life,” apparent across the behavioral sciences, defined modern scholarship. Inquiry of this sort was only possible because of the “diminution of inhibitions on intrusiveness into other persons’ affairs.” Others seconded his analysis about the invasiveness of much social research, one psychologist remarking that “practices which not long ago seemed questionable tend now to be almost fashionable.”¹ Summarizing the techniques that enabled such knowledge—deception, manipulation, collusion, and false rapport, among them—Shils fretted over their consequences. What would this brave new world mean for human dignity, the “autonomy of individual judgment and action,” and personal privacy?² A few years later, Shils’s colleague at Chicago, psychologist John M. Shlien, was scrutinizing newly developed psychological instruments being used to penetrate the secrets of human behavior. Were they as rational as they seemed? More importantly, were they humane? And what of the power they bestowed on a small circle of practitioners? Shlien wondered: Was the applied psychologist the “baby brother” who would “grow into the menacing Big Brother of 1984”?³ The scholars voiced an ambivalence that would grow stronger in researchers’ ranks as well as the wider society in the years to come.⁴

That Big Brother was looming over the research enterprise was a sign of the new wariness attached to a knowing society. It was also a sign of the expansive understanding of the individual rights-holder taking hold in American public culture. Privacy claims were making headway in courtrooms and social movements, and even in the unlikely realms of welfare administration and juvenile justice. They would soon be percolating in psychological laboratories, sociological experiments, and anthropological fieldwork too, where the transactions between researchers and their subjects were drawing new attention. Contests over scholars’ “right to know” in the second half of the 1960s were an early indication of the way privacy concerns were altering the scholarly landscape. By the mid-1970s, the deferential terms used to describe human subjects—“the research participant” and “the patient as person”—telegraphed the shift. Although not as clear-cut as a judicial ruling, public and even scholarly sensibilities about the proper relationship between the observer and the observed were undergoing significant revision. So were assumptions about the place and priority of social knowledge in American life.

The enormous expansion of universities and of state- and foundation-supported scientific and behavioral research in the postwar period laid the groundwork for privacy’s entrance into the scholarly domain.⁵ In that arena, the fledging right of privacy confronted another right: that of investigators to conduct research. While medical researchers attracted attention first, social researchers would also face important challenges to their expertise, including assertions about the autonomy, dignity, and privacy of the people who served as their research material. This was true even as the behavioral sciences in the 1960s attracted unprecedented federal funding and prestige, with academic social scientists’ work often shaping government policies and agency recommendations, blurring the line between state and nonstate actors.⁶

A boon to researchers in most ways, this new public visibility presented novel problems. The fact, one practitioner noted, that social research suddenly “seems to matter—to society and to the subject” alike, invited scrutiny, including queries regarding the kind of knowledge about citizens that it was appropriate and perhaps even legal to pursue.⁷ Some social researchers, Shils and Shlein among them, joined in on the questioning. In what circumstances, they asked, did the quest for knowledge reap not social gain but its opposite: individual or collective harm? And who would be charged with making that determination? A privacy-conscious public after the mid-1960s would in this way unsettle those professions most devoted to “the right to know.”

Social Inquiry as Surveillance

Precisely as the Supreme Court was framing Griswold v. Connecticut and a right to privacy linked to the marital bedroom, a doctoral student in sociology was preparing to undertake a parallel if strikingly different inquiry into privacy, sex, and space. The fate of his study illuminates the complex forces reshaping privacy discourse in the later 1960s: the transformations wrought by contagious rights talk, the new solicitude for citizens’ dignity, and the widening tolerance for difference in American society. Together, these developments—even without the help of laws or the Court—were working to expand the scope of what privacy claims were thought capable of covering and of whom privacy was imagined to protect. Griswold’s limited right to privacy served equally as a barrier and an inspiration to push beyond it. As more and more citizens claimed privacy rights as their own, the attempt to contain that right to particular people or places, whether normative majorities or the domestic sanctuary, would begin to founder.

Laud Humphreys was an Episcopal minister and civil rights activist who over the course of a decade had counseled numerous homosexual men in his parishes in Oklahoma, Colorado, and Kansas.⁸ A married but closeted gay man, he was fascinated by his contacts with the gay community. It was likely these experiences that drew him to graduate study in urban sociology, ethnography in particular, and to Washington University in St. Louis, where he began his studies in 1965.⁹ As a student, Humphreys was “gripped” by the work of leading “symbolic interactionists” like Howard Becker, Erving Goffman, and Harold Garfinkel who used the technique of the participant-observer to decipher the rules of social behavior.¹⁰ Goffman had employed these methods to understand the experience of mental patients in psychiatric hospitals and to probe topics like impression management and stigma in everyday human exchanges.¹¹ But, apart from an aborted attempt in the 1930s—where the researcher in question found “striking up relationships with these people” too distasteful—no one had yet extended such detailed study to homosexual behavior.¹² Humphreys would find Washington University a supportive place for such an investigation. Its sociology department proudly emphasized “a new and radical tradition” in which there were “no taboo topics or forbidden strategies.”¹³ Students there, he later recalled, “were expected to be original, imaginative, and controversial.”¹⁴ The new doctoral student would not disappoint.

The budding sociologist’s first impulse was to decamp to “the most socially visible gathering places for the group he was interested in,” namely the city’s established gay bars and coffee houses. But Humphreys would be prodded by his advisor, Lee Rainwater—intrigued by research on homosexual hustling but also depictions of gay culture in novels—to go where no ethnographer had gone before: into the “tearooms,” or public restrooms, where those in the know went to engage in surreptitious gay male sex.¹⁵ These men, “consumers” but not full participants in the “gay world,” were in Rainwater’s words “the invisible men of the literature on homosexuality.”¹⁶ That is, they were precisely those most heavily invested in sheltering their sexual behavior from view, whether from police officers or their own families and peers. Well aware of this, the police in this era used the tactic of publicizing offenders’ names in the newspaper or, alternatively, keeping offenders “on file,” rather than arresting them, as a strategy of deterrence. “Discovering and divulging secrets,” one scholar writes, “was the very essence of the policing of homosexuality.”¹⁷ Humphreys was cognizant of the steep sociological—if not always the ethical—challenge such a project posed. But he was thrilled by it too. After some preliminary reconnaissance in gay gathering spots, the former minister embarked on his fieldwork in the spring of 1966. The research would form the basis of his 1968 dissertation and then his 1970 book, Tearoom Trade: Impersonal Sex in Public Places.¹⁸

Humphreys’s dissertation, completed a year before Stonewall and the eruption of the gay liberation movement, grew out of a well-established sociological tradition focused on deviance.¹⁹ Pioneered by the likes of Howard Becker and William Foote Whyte, it treated the rules by which gang members or drug users or criminals operated no differently from those of “normal,” law-abiding social actors.²⁰ Rainwater, engaged at the time in a study of “ghetto living” in the infamous Pruitt-Igoe Housing Project in St. Louis, adopted this stance as well.²¹ For Humphreys and those advising him, only an unflinching view could get at the truths of the tearoom and, by extension, the sexual behavior of a “deviant” group. It required a close, even intimate, familiarity with the subjects of investigation. One of his friends recalled that Humphreys believed other sociologists “erred by using only questionnaire data.” To understand a phenomenon like public sex, “Laud felt it was essential to collect direct observational data.”²² And this he would do, first locating active tearooms with the assistance of gay contacts and then “passing as a deviant actor to gain access to the setting.”²³ Humphreys later described taking on the trusted position of lookout or “watchqueen”—a kind of sentinel who enabled sex to transpire by manning the restroom window and signaling if others approached. “Fortunately, the very fear and suspicion of tearoom participants,” he cheerfully noted in his write-up of his methods, had produced “a mechanism that makes such observation possible.”²⁴

Humphreys would come to know the role well. Over the course of two years, the sociologist directly observed sexual encounters in a series of restrooms located in public parks, singled out for their proximity to major commuting routes. This was a highly intrusive, if secreted, variety of ethnography: in all, Humphreys made a total of fifty “systematic observations” (recorded in detail on a standardized form, after the fact) of fifty-three acts of fellatio. These in turn allowed him to dissect the complex, coordinated, and overwhelmingly silent actions of strangers who managed through shared social cues to engage one another in brief, anonymous, but consensual sex.²⁵ In his role as voyeur, Humphreys guarded the temporary privacy of participants in sex acts even as he thwarted the intended visual protections built into the New Deal-era restrooms that served as his research sites: the windows with “opaque glass … covered with heavy screens” and the exterior privacy walls.²⁶ It was a vantage point that permitted him to document the subtle “micro-management of time and space” in the tearooms, the nonverbal system of communication its users employed, the functional fluidity of “insertors” and “insertees,” and the close correlation between age and sexual role.²⁷

This was only the initial stage of Humphreys’s research, however. The next step was, depending on one’s point of view, either ingenious or alarming. Because he sought to know more about the men he watched than was possible from the actual encounters, and because he was certain he could not inquire directly, thereby revealing his true identity as sociologist, Humphreys devised a second phase of the study.²⁸ Here again he followed Rainwater’s suggestion and fashioned a sample of the tearoom participants—he estimated about 10 percent—by “tracing the license plates of the autos they drive to the parks.”²⁹ This sleuthing relied on both public records and semi-public information accessible to those who knew how to ask for it. Humphreys noted the “friendly policemen” who helped him obtain the men’s names and addresses from license registers (ostensibly for a market research study) without asking too many questions; metropolitan directories furnished additional marital and occupational details.³⁰ Then, a year later, driving a different car and adopting an altered appearance and style of dress, the sociologist went on to interview these same men about their health, habits, employment, social attitudes, and family life. The pretext was a men’s “social health survey” conducted by a research center that serendipitously had enlisted Humphreys’s assistance. After gaining permission from the study’s director, the sociologist simply folded his sample into it. Humphreys was thus free to talk at length with men whom he had first identified in the tearooms in their own homes, watching them “prepare barbecues, have their evening drinks, and converse with their families.”³¹

5.1.   Laud Humphreys observed and diagrammed men’s sexual encounters in public restrooms for his study Tearoom Trade (1970), taking note of the “manner of approach,” “types of sexual role taken,” and “length of time of sexual acts.”

Being privy to these men’s secrets—and sure that they were unable to glean his—the sociologist was thus able to place his subjects’ private histories in dialogue with their public personas. What he discovered was that many in his sample were conservative, outwardly “straight” men, whether middle or working class. The majority (54 percent) were married and living with their wives, and many were churchgoers, active in the community. Only a small minority had contact with a “homosexual subculture.”³²

Humphreys came to pointed conclusions about their political views. Noting how few self-described liberals showed up in his sample of tearoom goers, he pinned their often vocal conservatism to the “illegal roles these men play in the hidden moments of their lives.”³³ The sociologist characterized his subjects as overweening adherents to the dominant norms of the mid-century United States: “Motivated largely by his own awareness of the discreditable nature of his secret behavior, the covert deviant develops a presentation of self that is respectable to a fault. His whole lifestyle becomes an incarnation of what is proper and orthodox. In manners and taste, religion and art, he strives to compensate for an otherwise low resistance to the shock of exposure.” The study proposed private sexual deviance as the flip side to perfectly performed public respectability, complete with a tidier home and better-kept yard than the neighbors. Humphreys dubbed this complex “the breastplate of righteousness.”³⁴ A peerless public persona was the cloak in which a non-normative private life could be hidden. It was a kind of privacy that social science, in the form of Laud Humphreys, had a strong interest in uncovering.

The study was revealing in other ways. Humphreys’s dissertation cracked open a window onto a much broader range of claims to and practices around sexual privacy in the 1960s than mainstream commentary countenanced.³⁵ As Humphreys observed, all kinds of sex—“at this stage in the development of American culture, at least”—seemed to require a measure of seclusion. But “when … the form of sexual engagement is prohibited privacy decreases risk and is even more valued.” The sociologist thus recognized that sexual privacy was most vital for those who were not legally entitled to it. His research pointed to the ways privacy could be found, even manufactured for a few minutes, in public settings such as parks and restrooms. Having no protected bedroom to repair to, the men who frequented the tearooms became expert readers of the “ecological factors” promising reprieve from intruders, whether vice patrols or picnickers wandering by. The silence of the tearoom was insurance that participants’ names and identities would remain secret. As Humphries explained, “At first, I presumed that speech was avoided for fear of incrimination.” But he became convinced that silence was “much more than mere defense against exposure to a hostile world.” It was, rather, “a normative response to the demand for privacy without involvement” and a means of ensuring that “this interaction [would] be as unrevealing as possible.”³⁶ For most men, silence was the best guarantor that they could return to their public lives without disturbance, preserving their families, their careers, and perhaps even their self-conceptions.³⁷

Tearoom Trade reveals as perhaps does no other source the inverse of Griswold’s heterosexual, marital, bedroom rights. It documented the quest of a diverse array of men—working class and middle class, black and white—for illicit sex, and the carefully choreographed if transient “zones of privacy” in which they found it. The entire tearoom arrangement, designed to ward off identification, embarrassment, or arrest, testified to users’ urgent desire to protect their privacy. Like others who lived dangerously in public spaces—African Americans under Jim Crow, for example—gay men created enclaves where they might evade the watchfulness of a hostile society.³⁸ In their own way, they took up Katz’s reformulation of privacy as protecting “persons, not places,” the tearoom fostering a reasonable expectation of privacy for those inducted into its hidden codes. Although its version of sexual privacy was wildly different from the one the justices of the Supreme Court imagined, the tearoom was interlocked with the rights they endorsed. Protecting normative sexuality and policing non-normative sexuality went hand in hand, the juridical privileging of “sanctified” marital bedrooms and illicit encounters in public restrooms two sides of the same coin.

Unlike the claim to privacy that married couples possessed thanks to Griswold, the one that tearoom users asserted was unauthorized by any court. And it was precarious. They had to worry about legal charges as well as physical beatings, entrapment through decoys as well as discovery by acquaintances. Indeed, “the solid, well-regarded family man suddenly disgraced by an arrest in a men’s room or a public park was a familiar story, replayed again and again throughout the 1960s.”³⁹ It was a story that met with more unease as the decade unfolded, however. The destruction of seemingly “normal” married men’s lives—one of the most notorious cases being President Johnson’s own aide, Walter Jenkins—accounted for some of the distaste.⁴⁰ Intolerance of homosexual “vice” remained the rule in that decade, but homophile advocates were slowly making a dent in mainstream public attitudes toward “respectable” gay men and women, and morals regulation of all kinds was loosening.

Importantly, judges and legal scholars were also backing away from sodomy laws. This was not simply for philosophical reasons (the fact that those laws punished a victimless crime), but because of their consequences for law enforcement.⁴¹ As a contemporary study explained, “Because homosexual crimes usually involve the consent of their participants … surreptitious enforcement techniques must be employed to enforce the laws.” These involved the use of “plainclothes police decoys and clandestine observations,” as well as “routine patrol, harassment, and revocation of licenses of business establishments catering to the homosexual trade.”⁴² The liberalization of the Court and the power of totalitarian imagery, argues legal scholar David Sklansky, placed these practices—and restroom surveillance—in a new light. “Homosexual policing,” with its covert spying on sexual activity, looked more and more unsavory across the decade of the 1960s, tempting law officers into bribery and extortion but also deepening existing concerns about the role of the police in a free society.⁴³ A 1965 House Special Subcommittee on Invasion of Privacy went so far as to investigate postal surveillance, wiretapping, and peepholes in restrooms as instances of “police state techniques.”⁴⁴ And although restroom surveillance was never mentioned in 1967’s Katz v. United States, Sklansky speculates that it was a subtext for that ruling’s extension of privacy protections to “people and not places” and thus to semi-public spaces like phone booths, and perhaps even tearooms.⁴⁵

For his part, Humphreys wrote sympathetically about his subjects’ dilemmas around sexual gratification and its fulfillment. He was personally untroubled by gay sex or even sex in public—which, as the sociologist pointed out, was noncoercive and nearly always invisible to the “straight” users of the restrooms for their standard purpose. Rather, a perceptive reviewer explained, “The police and the moral enforcers are the true evildoers in this setup.”⁴⁶ Humphreys himself was arrested merely for hanging around a restroom on one occasion and subjected to attack by a group of young “toughs” while serving as watchqueen on another.⁴⁷ His ethnography could lead one to see that the harsh policing of gay sex had not so much halted illegal activity as generated behaviors and codes aimed at securing room for privacy in the interstices of public space. One of Humphreys’s most appreciative reviewers observed that the study raised “profound questions as to what is private.” If “in private” was simply equivalent to “consent,” he reasoned, then “the games people play in tearooms may be no less private than those played at cocktail parties.”⁴⁸

These glimpses into sexual privacy as practiced in public would not be the chief contribution that readers and critics drew from Tearoom Trade, however. The study instead gained its significance, even notoriety, from a quite different set of questions it raised about privacy. These concerned the rights of Humphreys’s subjects and the associated responsibilities of the researcher. Despite precedents in what was sometimes called “underdog sociology,” Tearoom Trade’s methods pushed hard at scholarly and ethical boundaries.⁴⁹ Humphreys, after all, did not only observe and record criminal activity; he actively facilitated it.⁵⁰ Still more problematic, many came to believe that he had violated his (unwitting) subjects’ dignity as well as their privacy. The study’s revelations about illicit sex, silent communication, and the incongruity between public and private personas would nearly be lost in the debate over the legitimate bounds of social inquiry that ensued.

Tearoom Trade thus furnishes a remarkable index of swiftly changing sensibilities around sexuality but also privacy and social inquiry. A daring but unproblematic research venture in 1966, it would by the time of publication in 1970 provoke a scholarly tempest. This was not because of its object of investigation—a detailed and sometimes graphic depiction of men’s illegal sex in public facilities. It was because its author was thought to have improperly infringed on those men’s privacy.⁵¹ As one critic of Humphreys succinctly explained, “my objections are not to the topic but to the tactics.”⁵² That is, even though the activity studied by Humphreys offended dominant norms, was legally punishable, and officially shunned, the outcry about it concerned the researcher’s behavior. A growing unease with police surveillance of men’s restrooms attached, it would seem, to sympathetic sociologists too. By disguising his intentions and taking down license plate numbers, Humphreys, it was argued by academics and journalists alike, had exposed the men he studied to damage and danger.⁵³ He had, perhaps, even encroached on their rights. Much like welfare recipients and medical patients, the subjects of social research were coming to look vulnerable to the knowers in American society and in need of some protection from them.

The Ethics of Knowing

Unfortunately for the minister-turned-sociologist, Tearoom Trade appeared at a pivotal moment in national discussions about research ethics. Long-simmering worries about medical and social scientific uses of the person finally rose to the level of public scrutiny just as Humphreys was completing his study. For researchers, “privacy”—understood as a constellation of legal and ethical claims about the dignity of the person—would be no minor concern. The issue was first aired in connection with medical research, but it soon migrated to the social and behavioral sciences. By the middle of the 1970s, federal regulations for research had been put in place, including a National Commission for the Protection of Human Subjects, representing “a new stage in the balance of authority between researcher and subject.”⁵⁴ The requirement of “informed consent” and institutional review boards became standard, and the field of bioethics would capture the attention of many philosophers, lawyers, and social scientists.⁵⁵

There was a longer lineage to such concerns, most notably in the immediate aftermath of World War II and revelations of Nazi human experimentation, and most urgently in the biomedical domain. The resulting Nuremberg Code of 1947, which laid out ethical requirements for medical research, had little impact on U.S. laws or practices, however, with American physicians unable or unwilling to draw parallels between foreign atrocities and their own investigations.⁵⁶ But by the 1960s, converging developments—the new prominence of federally funded research, the civil rights movement’s critiques of exploitation and authority, and, not least, a fresh series of research scandals at home and abroad—were bringing renewed attention to the rights of human subjects. All of this meant that the “legal atmosphere … was becoming less sympathetic to the claimed needs of researchers.”⁵⁷

Several major statements on medical ethics were crafted by mid-decade, including the U.S. Food and Drug Administration’s Drug Amendments of 1962 and the World Medical Association’s Declaration of Helsinki in 1964. Harvard anesthesiologist Henry K. Beecher’s 1966 exposé of twenty-two scandalous medical experiments—on “mentally defective” children, the elderly, charity patients, alcoholics, and the terminally ill, all of them undertaken by respectable researchers—was an additional call to action.⁵⁸ That same year, a new federal policy required that researchers who received federal monies and who studied human beings would henceforth need to obtain prior approval from a review committee.⁵⁹ Federal human subjects regulations formalizing these guidelines, hammered out by committees of social scientists as well as medical researchers, would eventually be established in 1974. That year’s National Research Act was a reaction to especially shocking revelations in 1972 about the Tuskegee Syphilis Study, in which hundreds of African American men, without their knowledge, went untreated for decades for a disease that had an effective cure.⁶⁰

Although research regulations had been sparked by medical experimentation, the discussion afoot in biomedical circles would not be foreign to social scientists, particularly psychologists. The American Psychological Association was already by the early 1960s embroiled in discussions over ethical standards regarding human subjects and studies of “mental functioning”: the effects of sensory deprivation and the like.⁶¹ The very public debate over personality testing had culminated in congressional hearings on privacy invasions in 1965. Negative publicity around motivational research and subliminal suggestion did not help. As one lawyer’s analysis of the possible implications of psychological research had it, “Legally, it is difficult to regard psychological experimentation as other than an intentional invasion of the subject’s interest in peace of mind.”⁶² The new vogue of deception as a methodology in this same era brought research ethics to the fore of public consciousness, making it a topic that professional psychologists could no longer avoid.⁶³

A number of controversial studies added fuel to the fire. Psychologist Stanley Milgram’s 1963 obedience-to-authority experiments, meant to mimic ordinary people’s compliance with Nazi rule, were the best known.⁶⁴ By allowing subjects to believe that they were administering painful electric shocks to unseen confederates, Milgram put the technique of deception to dramatic purpose. He drew vocal critics in the process.⁶⁵ In response to his detractors, Milgram argued that “the participant, rather than the external critic, must be the ultimate source of judgment.” The psychologist defended both his careful “dehoax” of participants in the experiment and the reassurance he dispensed regarding their behavior. He also noted the positive feelings toward the study obtained in follow-up questionnaires, some of which he quoted in an appendix to his later book—particularly subjects’ sense that they “learned something of importance about themselves” by taking part.⁶⁶ And yet the experiment would trouble many for its willful infliction of intense psychological distress on unwitting subjects. While it would not attract a great deal of public interest until 1974, when the study was published in book form, Milgram was a common reference point for social scientists worried about the ethics and politics of their craft.⁶⁷ Philip Zimbardo’s Stanford Prison Experiment of 1971, which transformed college student “guards” into psychological tormenters of their “prisoner” peers so effectively that it had to be terminated early, functioned in much the same way.⁶⁸

5.2a. Stanley Milgram’s controversial obedience-to-authority experiment was a touchstone for debates over research ethics; here, the “victim” is strapped into a chair in order to be “shocked” by a research subject.

It was not obvious that concerns about deception, consent, and coercion in the research enterprise had anything to do with privacy. Early criticisms of human experimentation, whether biomedical or social scientific, had turned instead on physical and mental harm. As the 1960s advanced, however, questions of research ethics were more and more interpreted as bearing on the dignity and self-determination of the research subject. Given new public sensitivities, as well as developments in constitutional law—the decisional autonomy invoked in reproductive rights cases in particular—these aspects of the person were increasingly tethered to a “right to privacy.”

Stanley Milgram’s experiment, for example, raised quite novel concerns about psychological damage, including the harm of people’s exposure “to unsavory aspects of their own natures.” Might individuals have a right to be shielded from this kind of “involuntary self-knowledge”?⁶⁹ Concerns about privacy arose briefly even in foreign area research, most prominently in the controversy over Project Camelot, a government-funded counterinsurgency program brought to light in 1965. Did people in South America and Southeast Asia have a right to be left alone by scholars, especially since the findings from their research might be used against them?⁷⁰ The ethical problem posed by government conscription of social scientific experts was an old one in the history of anthropology, central to a famous article by Franz Boas written during World War I on scholars as spies.⁷¹ But the focus on the research subject and the state of that subject’s privacy and dignity was new. In the wake of Milgram and Camelot, professional organizations—the American Anthropological Association, the American Sociological Association, and the American Psychological Association, among them—got to work on framing internal ethics codes.⁷²

At the root of this professional second-guessing was a new understanding of the individual research subject as fragile, potentially exploitable, and in need of safeguards vis-à-vis the scholar.⁷³ The head of the Russell Sage Foundation, Orville Brim, mused on the problem facing the human sciences in 1967. Conflicts between science and the community were age-old, he noted, citing Galileo, but there seemed to be something new at stake in the debates of the 1960s. The content of the science was rarely at issue. Instead the standoffs were between “the methods used by behavioral science to reach knowledge,” on the one hand, and “larger community values,” on the other.⁷⁴ Consternation over the manipulation of human subjects was raising difficult questions about the proper limits of scholarly inquiry. “It’s very difficult to conclude that society does not want some of the knowledge which it is possible for us to produce, if the cost involves giving up of values of personal dignity and privacy,” Brim reflected. Yet, he concluded, “The majority of the people in society do not want to pay that price.”⁷⁵

In the 1960s, discussions of the research subject’s vulnerability almost inevitably opened up the question of rights: both the right to informed consent and the right not to be harmed. In the second half of the decade a set of commissions and panels explicitly addressed the tension between social inquiry and privacy or, as one commentator characterized it, “scientific knowledge” and individual “self-determination.”⁷⁶ An influential report coauthored by Brim and Oscar Ruebhausen on privacy in behavioral research posited an inevitable opposition between scientific research and “the right … of private personality.” They argued, much as Warren and Brandeis had in the late nineteenth century, that legal, propertied definitions of trespass were inadequate to address researchers’ violations of privacy, which constituted a special sort of injury to the person. They acknowledged that “the claim to privacy will always be embattled” since “its collision with the community’s need to know is classic and continuous.” But the authors also understood contemporary behavioral science to be under particular pressure on this score.⁷⁷

The report was a sign of the times, critics of behavioral and social science evincing the same concern for vulnerable populations as had critics of welfare policy and its invasions of recipients’ homes and private lives. For the first time, investigators themselves placed the privacy of research subjects squarely in their sights. The result was to cast the researcher in a new light. In seeking to understand the ingredients of human obedience in 1963, Stanley Milgram had also exposed the power relations of the laboratory: the way that the men in white coats could, if they wished, exert unchecked dominance over those they studied. The psychologist or sociologist or anthropologist could suddenly look like an authority figure, if not an outright authoritarian. Ruebhausen and Brim pointed to this power dynamic by citing “examples of ‘forced’ submission to privacy probes.” Although these were most obvious with regard to prison research, which was still prevalent in the United States in the 1960s, such probes were not confined to that area. They could be found in “our hospitals, our schools, our social welfare programs, our research institutes, and our institutions for the disturbed, handicapped, or retarded.”⁷⁸ Ruebhausen and Brim in these comments singled out groups thought to be particularly defenseless: prisoners and mental patients, hospital patients and youth. But their larger report made clear that these populations stood in for all subjects and the hazards to their “privacy”—by now a shorthand for individual dignity and self-determination—that could come from participating in social research.

5.2b. The experimenter’s improper and unchecked authority over the research subject was a criticism leveled at social investigators by the later 1960s.

If nearly any human activity was now open to the “threat of illicit invasion of privacy,” a different sort of harm threatened the social scientific enterprise. Ruebhausen and Brim feared the “recoil and revulsion” of a public newly attentive to invasive research techniques, whether “direct observation, one-way mirrors, concealed cameras, personality and ability tests, or psycho-active drugs.” If scientists themselves did not exercise discretion and self-control, their report cautioned, “the community will inevitably feel compelled to act for itself,” turning to privacy-protective legislation. “It requires no Cassandra,” they wrote for example, to predict lawsuits and regulation “if those who administer [psychological] tests in schools—even for the most legitimate of scientific purposes—do not show a sensitive appreciation for both individual and group claims to a private personality.”⁷⁹ The social scientists were keenly attuned to their own subjects’ awareness of privacy threats, whether from wiretapping, lie detectors, or personality tests in employment. In recent years, they wrote, there had been a “severe erosion” of the right of the individual “to decide for himself how much he will share with others his thoughts, his feelings, and the facts of his personal life.” As a consequence, “Our society has become more and more sensitive to the need to avoid such damage.”⁸⁰ The critical problem for social scientists was finding a better balance between what Ruebhausen and Brim characterized as “excessive privacy” on the one hand and “indecent exposure in behavioral research” on the other.⁸¹ If, as this language implied, the “private personality” subjected to researchers’ scrutiny was as defenseless as a naked body, social scientists were clearly also newly vulnerable to the public’s disapprobation.

Such commissions and reports posed a trade-off: a “gain in knowledge” ranged against a “cost in privacy.”⁸² Scientific curiosity and social insights but also academic careers and professional reputations all rested in some sense on what Edward Shils had described as “intrusiveness into other persons’ affairs.” In such matters, Griswold’s right to privacy, or at least its designation of a specific zone of privacy, offered little help. The conflict between the right to research and the right to decide if one wanted to take part in research, and on what terms, required something else: a balancing act, a case-by-case weighing of the importance of individual dignity against the importance of social knowledge. Along with ethics codes and research standards, this sort of judgment was becoming a professional obligation for social scientists by the end of the 1960s.

The subject’s willingness to participate, of course, might offer a way out, mitigating the privacy invasion. Calls for a more robust regime of consent in these years aimed to reinstall an autonomous actor in the position of research subject. Yet this was a solution that was in its own way a problem. Many social scientists in the postwar era did not in fact typically assume that people were fully independent beings, who acted free of social pressures. Relying on informed consent as the moral basis for research thus led to certain internal contradictions.⁸³ Rattling off the inducements attached to participation in research—scientific prestige, monetary compensation, the regard of peers or employers, extra credit in a college course—Ruebhausen and Brim made clear that the “distinction between consent and concealed coercion may be difficult to establish.”⁸⁴ Moreover, unlike in the physician-patient relationship often invoked as its parallel, in social scientific studies the rationale for granting consent was not obvious. The research subject in a psychological experiment, for instance, “had little to gain from the relationship.”⁸⁵ The benefit, it often appeared, was the expert’s alone.⁸⁶

But there was a more urgent practical issue. In much social and psychological research, again unlike the medical scenario, informing the subject fully about the experiment about to take place stood to invalidate its results. Consent—a fix that relied on the individual’s ability to decide whether to revoke his or her own privacy—was, as many commentators recognized, no fix at all. “Taken literally,” it would require that behavioral researchers “refuse to engage in the probing of personality, attitudes, opinions, beliefs, or behavior without the fully informed consent, freely given, of the individual person being examined,” wrote Ruebhausen and Brim. In a footnote, they worried: “How many people … could be expected to participate willingly in a test to devise a standard of homosexual tendencies? Or to measure intra-family hostility?”⁸⁷ Interest in such sensitive issues, and the desire to better understand the true motives behind human behavior, had underwritten the increasing use of deception in the postwar behavioral sciences.⁸⁸ It was now unclear whether the field could get along without it. Yet, the very methods that had led to many social scientific advances and to their broad purchase in American society seemed to be in doubt.

Nevertheless, Ruebhausen and Brim’s report like most others shied away from recommending legislation or regulation—or explicitly recognizing the rights of human subjects—as the answer to the dilemma. The solution could only be professional discretion and self-policing through research standards and ethics codes. Responsibility rested with the expert to set the “conditions that give fullest protection to individual human dignity.”⁸⁹ Thus, hand-wringing about subjects’ privacy and researchers’ duties worked both to acknowledge the growing rights claims in American society and to check them. Preferring the language of professional ethics to constitutional rights, social investigators in diverse fields found their way through new terrain, fully aware that the ground was shifting under their feet.

Navigating Subjects’ Rights

In the years after Griswold, experts in every field dependent on human subjects elaborated strategies to preempt the challenge that new privacy sensibilities posed to their work. An academic psychologist, for example, proposed a systematic method for assessing trade-offs between the value of a specific research project and the “price extracted from human subjects”—an “ethical payoff matrix” that would facilitate better decision making.⁹⁰ The authors of a 1966 book on “unobtrusive measures,” a handbook for what they billed as “nonreactive” social science research, argued for new techniques that would foster “the privacy of the individual, his freedom from manipulation, the protection of the aura of trust on which the society depends, and by no means least in importance, the good reputation of social science.” Perhaps, they speculated, practitioners could protect privacy by extracting information from people without “ever identifying individual actors or in any way manipulating them.” Seeking a less intrusive path to socially useful knowledge, they outlined a program of archival methods and “trace” measures. The amount of wear on tile flooring at a museum could be used to reveal the popularity of specific exhibits, for example; tracking the radio-dial settings on cars brought in for service could help monitor listening habits with no impact on the listener. Such methods might permit “ethically scrupulous social scientists to do their work effectively and to sleep better at night.”⁹¹ In each instance researchers evinced a new sensitivity around privacy intrusions and heightened care for the subject of research.⁹²

A few—although only a few—would conclude that safeguarding subjects’ privacy outweighed the priorities of their own research. One study in this period found that scholars had been “forced” to think much harder about the confidentiality of their data, but that there was no “widespread tendency to inquire into the value of research and weigh it against the intrusions into the subjects’ lives.” Yet there were some who treated new privacy claims quite seriously. A handful of social scientists took up the question of how to avoid submitting their subjects to indignities when examining sensitive topics, whether poverty, employment, or health. The medical sociologist and civil rights activist, Edward H. Peeples Jr., for example, had in a study of poverty and nutrition compiled a good deal of evidence on poor Americans’ consumption of dog food. Peeples, however, discouraged calls for further research through a national survey. This practice was a “mark of failure and shame in our society,” he argued, and “to submit thousands of persons to the lengthy, deeply probing and tiresome interviews necessary to confirm whether or not they eat pet food is intolerable.” He added, “Those who deny the reality of poverty, hunger and malnutrition in America have always had an insatiable appetite for ‘hard data’ from those of us who have witnessed or experienced these misfortunes first hand.” Rather than spend money on follow-up studies, Peebles suggested putting those funds toward finding better solutions for the poor. Some information, the sociologist contended, “is not worth the cost, both in terms of privacy invasion and dollars.”⁹³

By the late 1960s a chorus of professionals in applied research began to wonder more self-interestedly about how all this talk of subjects’ privacy and right to refuse their inquiries might play out. The research community writ large depended on access to Americans’ private behavior and thoughts: their hidden habits, desires, and attitudes. Their image and livelihood at stake, marketers, motivational researchers, testers, pollsters, and census takers had legitimate concerns about the way privacy discussions were trending. The congressional hearings on privacy invasion in 1965 loomed especially large for those in the testing business, one legal expert forecasting that “a successful constitutional attack on psychological testing” was “a real possibility in the near future.”⁹⁴ Personality testers, even those who dismissed their critics as “adherents of victorian [sic] conventions,” began advising that specialists employ these tests with much greater restraint. This was evident in one psychologist’s sober cost-benefit analysis: “It seems unlikely that a system-wide survey of junior high school students, made without parental consent for it, will produce scientific data of sufficient importance to offset the public uproar and damage to the reputation of psychology and education that may result.”⁹⁵

Testers of all stripes were chastened. Wrote an educational researcher, noting that schools and communities were now resisting cooperation with research projects, “It seems safe to say that purported invasion of privacy in research and testing has become a persistent and sometimes urgent public concern.”⁹⁶ The U.S. Office of Education publicized that it was “on the alert” for and prepared to delete objectionable questionnaire items in a broad array of data-gathering instruments funded by federal monies: personality questionnaires, intelligence and achievement tests, vocational interest inventories, curriculum surveys, and so on. Particularly suspect were items that were highly personal, “self-demeaning,” “excessively ‘psychiatric,’ ” or likely to have “an adverse psychological effect,” as well as those that requested confidential or personal information about someone other than the respondent.⁹⁷ A spokesman for that office, keen to ensure that social science “not become identified in the public mind with ‘snooping’ and ‘prying,’ ” presented the Bureau of Research as “an honest broker between the scientist who presses for scientific freedom, and the public which, generally speaking, places considerably greater emphasis on the value of personal privacy.”⁹⁸

New attention to privacy and research subjects’ rights rippled out beyond the testing arena. Even opinion pollsters found themselves part of the conversation. In 1966, a past president of the American Association for Public Opinion Research wrote at length on the topic. Robert O. Carlson viewed the future of his field “with some alarm.” He predicted that those in survey research would not “escape the searching eye of critics and the general public with respect to the issue of privacy.” Carlson frankly acknowledged that it was in the very nature of public opinion research to “invade the privacy of our respondents,” but it was a necessary trade-off between the rights of the person and the “needs of our society for better scientific information on human behavior.” Carlson’s concern was that the tide seemed to be turning against the researcher. As he saw it, the “research fraternity” needed to act to polish its image or else risk public disfavor and even regulation.⁹⁹

Carlson’s admonitions to his colleagues spoke not only to the high pitch of privacy concerns but also to their intersection with attention to the rights of the most disadvantaged in American society. This was evident in his discussion of authority and consent, issues which were surfacing just as surely in polling as in psychological experiments. Surveyors might believe that individuals freely consented to their questions, he remarked. But critics might easily ask whether the poor, the uneducated, or the intimidated were aware of their right not to answer—and whether they were “equally prepared psychologically to exercise this right.” And what about the fact that researchers often reported findings by age, sex, race, or socioeconomic status and that “subgroups in our samples … might be identified and damaged by such revelations”? Indeed, Carlson professed surprise that pollsters had not already felt pressure from groups organized to protect minority rights, when “in theory, it can be argued that any subgroup that can be identified by data in a survey report has had its privacy invaded.”¹⁰⁰ How, Carlson asked, should surveyors respond to critiques of this “real-life power situation”?

Carlson worried, finally, about pollsters’ potential association in the public mind with “professional snoopers and private CIA agents.” The link was not entirely misplaced, given that surveyors often made queries about the actions or attitudes of a respondent’s family, neighbors, or fellow workers. Moreover, Carlson explained, the interviewer, having gained access to a respondent, “is free to move from his relatively innocuous initial questions into subject areas of a highly personal nature … having to do with the political, religious, economic, and moral beliefs and practices of the respondent.” Acknowledging widespread dismay over the use of electronic spying devices, Carlson wondered whether his fellow pollsters would be attacked for “psychologically bugging the minds of our respondents and causing them to reveal information about themselves that they otherwise would not.”¹⁰¹ Carlson’s invocation of bugging, his awareness of the power relation inherent in questioning, his invocation of minority rights, and his sense of incipient public refusal show how strongly researchers were coming to believe that they would need to alter their practices to meet new sensibilities.

Marketers were similarly attuned to the threat. In their view of things, claims to individual privacy represented less a precious personal possession than a “constraint” or even a harm to business. The newly enunciated but still shadowy right in Griswold was of special concern. In an effort to identify risks to their profession, two writers in the Journal of Marketing scoured contemporary privacy law for answers. Having done so, they labeled not the constitutional right but the tort of intrusion “the gravest future threat for the unhampered execution of marketing research.” Noting that courts had defined wrongful intrusion as having physical, visual, and auditory components, as in a series of “Peeping Tom” and eavesdropping cases, they anticipated that the step to the psychological was not far off. Indeed, they admitted, “If the courts are willing to recognize intrusion on the physical level, they should be even more disposed to entertain intrusion actions at the psychological level where the right to solitude appears to be more fundamental.”¹⁰²

The implications of privacy rights for market researchers appeared ominous, as this damning admission about incursions into the psyche revealed. Motivational research had by this time taken firm root in industry, and it depended on both deception and intrusion. The “disguised-projective questioning technique,” for example, was “designed specifically to gain access to the respondent’s psychological level,” one marketer noted in 1969.¹⁰³ As another put it, “Must we really explain, when we ask the respondent to agree or disagree with the statement, ‘Prison is too good for sex criminals; they should be publicly whipped or worse,’ that it is really the authoritarianism of his personality we are investigating, and not public opinion on crime and punishment?” Where, he wondered, should the practitioner “draw the line between deception and discreet silence”?¹⁰⁴ The fact that expert techniques relied on dissembling meant that issues of consent were, once again, tricky. The respondent in such studies only agreed to reply to “surface level” questions—not the actual, more meaningful queries lurking underneath. Were he fully informed, “it is unlikely that he would willingly consent to have his psyche plumbed by an interviewer.” Courts, certainly, would not consider an individual’s agreement to answer such questions as equivalent to consent. Calling legal scrutiny “a safe prediction” and legislation “a threat,” these analysts put their colleagues on alert.¹⁰⁵

By the late 1960s, bills before Congress proposing limits not only on the kinds of queries the decennial census could include but also on the requirement to answer them underlined the real and present danger to those who relied on respondents for data. What was new about these proposals was that strictures regarding confidentiality no longer seemed enough. To curb privacy invasions, it seemed, the questions (and questioners) themselves needed disciplining. Republican congressman Jackson Betts of Ohio, arguing that the Census Bureau’s “probing of people’s affairs is certainly unwanted and unnecessary,” tagged its questions as invading citizens’ privacy and serving no public purpose. His supporters suggested that “titillating questions” (such as whether households shared a shower) were out of bounds, constituting “invasion of privacy” as well as “harassment.” Notable champions of individual privacy in Congress, such as Democrat Cornelius Gallagher of New Jersey, opposed such efforts to curb the census, testifying to how far the discussion about questioning citizens had moved by the end of the decade. Conscious of “the lease of power such information will give to the government to invade the private lives of its citizens,” Gallagher nevertheless worried that reining in official data-gathering would imperil the “government’s need to know.”¹⁰⁶

The need to know was precisely what was at issue. But what talk of ethics, privacy, and consent made evident is that the knowers were no longer solely in charge of defining the stakes. The fact that researchers in a wide array of fields aired their concerns about their subjects’ privacy so freely and frankly after the mid-1960s—often, of course, in connection with the difficulties the claim posed for them—suggests that those who promised to make social problems intelligible through their expertise had become a problem themselves. The recasting of a whole range of professionals as “invaders” expressed well the rising consciousness around privacy rights. Regulated by ethics codes and a smattering of federal guidelines, professional researchers’ prerogatives would not in this era be dismantled as effectively as Connecticut’s birth control law.¹⁰⁷ But the new solicitude for individual privacy and dignity would reshape the field of social inquiry, both the sorts of questions that could asked and the ways research subjects—soon to be rechristened “research participants”—would be treated.

A Right to Research?

For Laud Humphreys, the trouble began when he tried to file his dissertation in 1968. His study on the tearooms would be strenuously opposed by a senior faculty member at Washington University, Alvin Gouldner, on the grounds of ethical violations. Gouldner, who referred derisively to Humphreys as a “peeping parson,” had attacked other sociologists of deviance in print for what he considered to be the immorality of their methods, and the tearoom research was no different.¹⁰⁸ By Lee Rainwater’s account, the research also troubled the university administration, a concern that became more weighty when it was discovered that Humphreys “had not filed the very new human subjects review papers,” a federal requirement tied to his pre-doctoral grant from the National Institute of Mental Health (NIMH).¹⁰⁹ These guidelines had been hastily put into place in 1966 in the wake of Henry Beecher’s exposé and were more honored in the breach than in the observance.¹¹⁰ But Humphreys, a student known for his activism and his multiple confrontations with Gouldner—with whom he had come to physical blows over research methods, a scuffle that made its way into the pages of the New York Times—may have come in for special scrutiny.¹¹¹ Those who disliked him, or his subject matter, now could hide behind methodological concerns.

After his PhD defense, Humphreys received notice from the chancellor that in his dissertation research “he had failed to follow university regulations and federal law in the protection of human subjects and may also have violated the criminal law of the state of Missouri.” Humphreys scrambled to make sure his records documenting illegal activity in the tearooms were safe from subpoena. Meanwhile, he was advised of the possibility of his degree being revoked and that he “would be well advised to refrain from, or at least postpone, the use of the title ‘Doctor.’ ” The university went on to attempt to bar and then delay the study’s publication.¹¹² As all of this was unfolding, the NIMH—responding to a request from the chancellor—sent in a team to investigate the sociology department before releasing a $1.2 million grant to Lee Rainwater. The department had already attracted the notice of the higher administration for its radicalism. Its vocal leftist contingent included one of Humphreys’s advisors, Irving L. Horowitz, who wrote extensively about the profession and its role in society, including its military and intelligence links. But the request for an external investigation was at least in part rooted in uneasiness with the tearoom research. The NIMH team’s final assessment that “nowadays sodomists are rarely if ever prosecuted for this felony, and lookouts or ‘watchqueens’ probably never,” persuaded the chancellor to allow the grant to proceed. But he did so “only on the condition that Laud would not be employed at the university.” With the assistance of the vice provost and the sociology department secretary, who took the fall for failing to submit the human subjects paperwork, the charges against Humphreys were dropped, and he received his degrees in sociology and criminology.¹¹³

The controversy did not end with the resolution of matters at the university. As Humphreys soon learned, whatever legal risks he had incurred in conducting his research, the professional ones would be greater. The sociologist secured a teaching position at Southern Illinois University and then the State University of New York at Albany. His book on “impersonal sex in public places” won the prestigious C. Wright Mills Prize from the Society for the Study of Social Problems in 1970.¹¹⁴ But Humphreys—caught between older conventions of professional responsibility, which relied almost completely on the researcher’s discretion, and a new attention to subjects’ rights—would be dogged by questions about his study’s involuntary conscription of tearoom habitués. He would say as much, in response to a critic, a decade later. By then teaching at Pitzer College in California, Humphreys explained that when he launched his tearoom investigation in the mid-1960s, “the sociologist had no Code of Ethics mentioning the need for ‘informed consent.’ ” He continued, “The issue was never raised in my graduate studies, and I had never thought about that as a matter of concern.”¹¹⁵

Humphreys was aware of the delicacy of his brand of research all along, of course. Just as he embarked on his ethnographic work, in fact, his advisor was publishing on research ethics. With a colleague, David Pittman, Lee Rainwater coauthored a key article on the ethical dilemmas of studying a “politically sensitive and deviant community,” in this case, the African American residents of St. Louis’s Pruitt-Igoe public housing project. Today we might expect the ethical dilemmas to center on harms to members of that community. But what was centrally at stake for the sociologists then were the rights and autonomy of researchers, not their subjects—even if those rights included scholars’ efforts to protect the privacy of those same subjects.¹¹⁶ Rainwater and Pittman defended their right to know against city officials’ desire for their data. Pressured for access to their results by interested agencies (the Housing Authority as well as the Police Narcotics Squad), the sociologists voiced “a concern with our rights,” seeking to “legitimate those rights in the eyes of other institutions and the public.” Focused on protecting informants’ identities and their research materials from subpoenas, the two pointed to “a very sticky situation” that would result “if others are not willing to recognize our right to behave ethically (for example, by preserving confidential relations with our informants).”¹¹⁷ Strikingly, the sociologists in this meditation on research ethics in a “politically sensitive community” did not take up any other rights—notably, those of their poor, African American subjects—that might have been in question.

Rainwater and Pittman, however, did raise a number of other ethical issues bearing on privacy, among them the damage to a group’s reputation that might result from social scientific inquiries and the misuse of research findings. They pondered, “If one describes in full and honest detail behavior which the public will define as immoral, degraded, deviant, and criminal, will not the effect be to damage the very people we hope our study will eventually help?”¹¹⁸ They fretted over the fact that studies of ghetto life had been fodder for anti-integrationists, for example. They also referenced the way the findings of Rainwater’s own study on working-class women’s use of contraception—commissioned by the Planned Parenthood Federation of America in the late-1950s, pre-Griswold—had been distorted by those opposed to family planning services in public health and welfare agencies.¹¹⁹ Unmentioned but hovering in the background was Daniel Patrick Moynihan’s 1965 The Negro Family: The Case for National Action, also known as the “Moynihan Report.” Written under the auspices of the U.S. Department of Labor, the report claimed to have discovered a “tangle of pathology” in black urban America that, as much as joblessness, mired African Americans in poverty. Praised by some for its counterintuitive findings and denounced by others for cultural bias and “blaming the victim,” controversy over the study was still boiling at the time Rainwater and Pittman drafted their reflections on research ethics.¹²⁰

Questions of academic freedom, racism, and who could presume to speak and write about African American life directly involved Rainwater, both as a friend and defender of Moynihan and as a white sociologist studying the ghetto.¹²¹ The notion that whole communities might be tarred or deprived of their dignity by the findings of social research was a brand-new kind of privacy harm. Kenneth Clark, the African American psychologist whose research on children’s racial attitudes had helped determine the Brown v. Board of Education ruling and was also a major influence on The Negro Family, would come in for just this kind of criticism for his study of Harlem, Dark Ghetto, of 1965. By the later 1960s, Clark’s depiction of New York’s black community, which “so exaggerated Harlem’s problems and ignored its rich cultural life that it reinforced negative racial stereotypes,” looked to some like sociological racism. White sociologists, until the 1960s the primary academic claimants to expertise on people of color and the poor, would also suddenly confront the question of their authority to represent or speak for subjects unlike themselves. The very ownership of social knowledge was becoming a political question. Clark would, for instance, in 1970 criticize Rainwater’s own study of the black ghetto for its “normative pornography type description of the Negro poor and his predicament.”¹²² These were glimmers of the way a new stage of civil rights action, centering on the politics of self-definition and cultural rights, would confront social science as usual. Rainwater could acknowledge this critique, but he could not get on board with it. Despite his qualms about the political uses of research, the sociologist believed that “the moral obligation of scholars was to tell the truth, regardless how uncomfortable or embarrassing that might prove for African American leaders or lower-class African Americans.”¹²³

Rainwater’s scholarship and allegiances thus placed him right at the center of controversies over researchers’ power vis-à-vis their subjects, achieved not just through their ability to probe but also to publish and thereby define social problems. He was, it would appear in hindsight, out of step with the times and the new concern for subjects of research. He and Pittman were unwavering on the point that any rights and responsibilities related to social research were lodged primarily with the scholar. For example, confidentiality was less an informant’s due than a tool or “inducement,” as they put it, to elicit cooperation.¹²⁴ And sometimes, as the sociologists made clear, confidentiality ought not be extended. Arguing that “we should re-think our automatic assumption that we offer to maintain the privacy of our informants,” they proclaimed that such a decision depended first and foremost on the “needs and goals of a particular research.” The scholar’s control over such matters, wrote the sociologists, “makes explicit our claim to a right to study social behavior in certain situations.” Declared Rainwater and Pittman, “Obviously we do not claim the right to study all kinds of behavior in non-confidential ways and to make public our findings, but we do and should study certain kinds of behavior in this way.”¹²⁵

Humphreys’s sensibilities, although gentler, were very much in line with his advisor’s. For him, the chief ethical question in the tearoom study was the relatively straightforward one of safeguarding his subjects’ confidentiality so that they could not be identified by outsiders. That settled, he had free rein to design a study that would advance his scholarly aims. The decision to conduct his research covertly, he implied, was in this sense not truly a choice: that method being the best means to his end, it was also necessarily subordinate to it. “I had to become a participant-observer of furtive, felonious acts,” he stressed.¹²⁶ As his defenders pointed out during the controversy over Tearoom Trade, Humphreys did take extraordinary precautions to protect his subjects. He did not record names or other identifying information on his questionnaires and kept the master list in a safe-deposit box a thousand miles away. He also transcribed all the interviews himself, eventually destroying them completely, spending “some weeks early in the summer of 1968 burning tapes, deleting passages from transcripts, and feeding material into a shredder.”¹²⁷ It is worth noting, however, that Humphreys took this last precaution only once his work attracted negative scrutiny from the university administration, which troubled some of his cooperating respondents enough to ask for reassurances that they would not be exposed.

Yet in his write-up of methods the sociologist barely paused over the use of deception to observe men in the midst of illicit sex, his discovery of their names and addresses by tracking license plates, or his further reliance on disguise and deceit when he arrived a year later on their doorsteps.¹²⁸ In the brief, even breezy, ethical reflections contained in the final chapter of his 1970 book, Humphreys mused, “Is it unethical to use data that someone has gathered for other purposes, one of which is unknown to the respondent?” He did not dwell long on the question, raising neither the issue of deception nor informed consent. Answering his own query, he judged the practice “quite ethical” so long as appropriate security procedures were followed. Remarking that the same strategy was “frequently employed by anyone using such data banks as the records of the Bureau of the Census,” he felt little need to say more.¹²⁹ Only after his study came under fire did Humphreys publicly contemplate the risks his subjects faced—along with the fact that they had never agreed to undertake them.¹³⁰

As the reviews of Tearoom Trade make apparent, Humphreys’s colleagues and readers were quicker to see the dangers. Most were willing to grant that valuable social scientific knowledge had been turned up in the tearooms. But the five years since the sociologist had plotted his fieldwork had made a difference. In the early 1970s few scholarly commentators were able to resist inserting discourses about professional ethics and research subjects’ privacy alongside their praise. A British colleague, for example, applauded the intrepid nature of the research, in which Humphreys “managed not only to observe deviant sexuality without disturbing the situation but also to interview the participants at a later date.” By these means, the sociologist had produced “some of the first information we have on the concealed and hidden homosexuals that researchers have long been aware of but whom they have found impossible to trace.” Yet these plaudits came with a caveat. “The whole book,” noted this writer, “raises the thorny problem of ethics in social research. To what extent can the snooping methods of a concealed and undisclosed Humphreys into the private sex lives of men be justified ethically?”¹³¹

Similarly, although a clear admirer of Humphreys and his study, a fellow sociologist was wary of his means. He called the study unique in its “concatenation of misrepresentation and disguises,” which he argued “must surely hold the world record for field research.” On balance, he reckoned that “the dangers to respondents, to the researcher, and to the precious sense of respect for the privacy of others seem too great for the returns.”¹³² Social scientists, urged another writer, “assume a great responsibility”—likely too great—“when they deny respondents the rights of voluntary participation.”¹³³ He believed that “those whom we hope to help by our efforts” ought “not be put in such jeopardy except with their explicit consent.”¹³⁴ An anthropologist, although he didn’t sit in judgment himself, pointed out, “There are many social scientists who will consider Humphreys’s use of the guise of the gay guy to gain admittance to the tearooms as a violation of professional ethics.”¹³⁵ After observing that “few sociological books in recent years have received the attacks and accolades that Tearoom Trade has,” another scholar confirmed this, pinning its “notoriety” in the media and the profession alike to “its controversial research ethics rather than its subject matter or findings.”¹³⁶

In raising matters of consent, disclosure, rights, privacy, and ethics, these scholars bore the marks of a new and circumspect relationship to their subjects. Whereas Rainwater and Pittman had earlier invoked the rights of the researcher, many of their colleagues were attending to the rights of the researched—indeed, setting the two in opposition. Defenseless, even “powerless”—their privacy and dignity in the balance—subjects of social investigation were now in need of protection. Writing of the second stage of the tearoom study, the home visits, a sociologist charged that Humphreys “took no personal risk by being there, but his presence did pose a potential threat to the men and their families.” There was no way, for instance, to know if any of the men were distressed in the moment, and “there has been no follow-up inquiry to alert us to any anxiety that they may have suffered as a result of the coverage that the research has received in the mass media.”¹³⁷ The researcher’s right to know was confronting the research subject’s right not to be known, except under conditions where consent had been both sought and obtained.

Yet another of Humphreys’s critics, an ethicist, pondered the longer-range damage that invasive social research could inflict. Not only had Humphreys “taken advantage” of a vulnerable population but he had also likely left the men with lingering anxiety about the fact that “someone knows.”¹³⁸ Invoking resonant biomedical scandals—Nazi medical experimentation as well as the recent exposé of the injection of live cancer cells into healthy patients at Brooklyn’s Jewish Chronic Disease Hospital—he wondered “how far the social scientist can intrude into the inner reaches of the self without jeopardizing freedom.”¹³⁹ He concluded, “Whatever the current state of legal definitions of privacy, Humphreys intruded much too far into the lives of the men he observed and studied.” Indeed, he lamented, “From now on tearoom participants must be on the alert not only for blackmailers and policemen, but for sociologists in voyeur’s clothing.”¹⁴⁰ Even if the law did not prevent the scholar from undertaking this research, the reviewer suggested, Humphreys’s own ethical compass should have.

Some reviewers went further in questioning the sociologist’s motives, suggesting that Humphreys had deliberately sacrificed his subjects’ humanity, privacy, and freedom of choice for his own professional advancement. A criminologist, airing his “tremendous sense of uneasiness” while reading the ethnography, accused Humphreys of a lack of compassion toward his subjects, deriding him as a “first-rate sociological pornographer” and his work as the equivalent of “ghetto tourism.”¹⁴¹ Still more damning was the assessment of Edward Sagarin, a sociologist and criminologist who had also built his career on studying homosexual behavior. “Granting without question the careful guarding of the confidentiality of the information,” he began, “I must nonetheless look with great dismay on men who, in their capacity as sociologists (or psychologists, or any other) delve into the most private and secret and fear-inciting aspects of people’s lives, without their knowledge or consent, and not for the purpose of aiding the object of their study, but of adding to knowledge and aiding themselves.”¹⁴²

Such reviews called into question the researcher’s judgment. They also explicitly weighed his scholarly prerogatives against the lingering damage of fragile lives exposed. Like Moynihan’s report on the black family, Humphreys’s gaze in the tearooms made subjects vulnerable—not just at the moment of observation but also in the lasting impression it left. As several critics noted, the study made the tearooms more legible to law enforcement and thus potentially more dangerous for users, imperiling his subjects and others like them in the future. “We are close enough to 1984 … what with totalitarian regimes and democratic ones where personal and human rights are under constant threat,” charged Sagarin, in a dramatic flourish, “without the science of human behavior being enlisted in this last onslaught on man’s privacy.”¹⁴³

Sagarin would not be the only reader to enlist such imagery in his attack. Nor was he the only one to suggest that Humphreys’s brand of social research transgressed more than professional codes of conduct—indeed, that it might violate fundamental human rights. The ethicist who had summoned up Nazi experiments in his review of Tearoom Trade raised the specter of a totalitarian society where “one must constantly look over his shoulder or check under his bed to be sure that he is not being observed or heard.” At this point in history, he warned, “We must be concerned not only about the impact of the single intrusion, but also with the cumulative effects of thousands of acts of prying on the quality of human life.”¹⁴⁴ Here the social scientist joined the fictional policeman in the bedroom and the FBI wiretapper as a threat to the enclaves of human privacy and dignity that still remained in U.S. society.

Reactions to Tearoom Trade, it is clear, were never only reactions to that study. They were steeped in a host of other concerns about the state of privacy in 1960s and 1970s America, which were mostly far removed from the realm of scholarly research. A reviewer invoked in one breath Humphreys’s ethnographic work and “the FBI, salesmen posing as survey researchers, and credit checkers entering suburban homes under various guises” in the next.¹⁴⁵ Writing in 1973, another would link the study to “recent disclosures of widespread military surveillance of civilians, the ever-growing use of phone tapping, and the burgeoning data banks on millions of American citizens.”¹⁴⁶ It is impossible to read their commentaries, littered with similar references, as concerned with tearooms alone. This last writer made the point explicit: social scientists, he wrote, “should be scrupulously careful about contributing to the fast-growing reservoir of suspicion and distrust that plagues the United States in the closing decades of the twentieth century.”¹⁴⁷ Those who criticized Humphreys’s study asked of the tearoom users, but perhaps also of themselves, what secrets were theirs to keep. The risks to the ethnographer’s subjects were more proof of the risks that all people faced in a prying society—and their protection from the researcher one more defense against it. In this imagined bridge linking “deviants” to putatively normative others, privacy rights of an unofficial sort widened.

The debate about Tearoom Trade would spill out of these academic confines, most visibly in the pages of the Washington Post, where columnist Nicholas von Hoffman had gotten wind of the forthcoming book.¹⁴⁸ Von Hoffman placed Humphreys’s study in unsavory company—with the “credit checkers,” “counter-espionage men,” “dope sleuths,” and “divorce detectives” who were “peeping into what we thought were our most private and secret lives.” The sociologist was simply another creature intent on invading others’ privacy, but perhaps one more odious in his self-serving bromides about advancing human knowledge. No matter how much care Humphreys had taken with his subjects’ secrets, wrote von Hoffman, “it remains true that he collected information that could be used for blackmail, extortion, and the worst kind of mischief without the knowledge of the people involved.” This last phrase was crucial. “Most of the people Humphreys observed and took notes on had no idea what he was doing or that they, in disguised form, would be showing up in print at some time in the future,” railed the journalist. Von Hoffman knew that Humphreys’s project would be justified on the grounds of producing “needed, reliable information about a difficult and painful social problem.” But the police, the Justice Department, and J. Edgar Hoover professed worthy motives for gathering information too, he charged—at the cost of “invading some people’s privacy.” He concluded, “My newspaper could probably learn a lot of things that the public has a right and need to know if its reporters were to use disguises and the gimmickry of modern, transistorized, domestic espionage, but there is a policy against it. No information is valuable enough to obtain by nipping away at personal liberty, and this is true no matter who’s doing the gnawing.”¹⁴⁹

Such an argument may not have been surprising coming from a journalist and outsider to the field. What would be astonishing, over the course of the next decade, is how many social scientists would publicly come to similar conclusions.¹⁵⁰ The Yale sociologist Kai Erikson had already in the spring of 1967 written a critical essay on the practice of “disguised observation.” The technique had been used to study people in Alcoholics Anonymous groups, millennial cults, army barracks, and mental wards without those people ever knowing about their status as research subjects. But Erikson urged that the “practice of using masks in social research compromises both the people who wear them and the people for whom they are worn.” Calling disguised research “an ugly invasion of privacy,” Erikson asserted that it carried injuries for the people being researched, whose trust and intimacy were compromised in potentially consequential, long-term ways. It also took a toll on sociology’s professional reputation, something he feared at a time when the discipline was attracting larger audiences and more public respect, as well as grant money and tenure lines. Erikson compared the ethics of disguised observation to undisclosed medical experimentation, asking whether “we have the right to inflict pain at all when we are aware of these risks and the subjects of study are not.” Writing at a moment when the rules of research were regulated almost exclusively by the individual researcher, Erikson contended that it was unethical for a researcher to misrepresent either his research or himself “for the purpose of entering a private domain.”¹⁵¹

Humphreys’s own decision to append a set of essays on ethics to the revised 1975 edition of Tearoom Trade testified to the way the field was trending.¹⁵² Questions of ethics constituted an enormous growth area for social scientists in the decade spanning the mid-1960s and mid-1970s, as a lengthy “selective” bibliography of works assembled by a 1978 task force on ethics in social research reveals.¹⁵³ The conveners of the task force, Robert Bower and Priscilla de Gasparis, registered a “rapidly increasing concern about the protection of the rights and welfare of human subjects.” At pains to specify the nature of the social scientific harm, they observed that if biomedical research tended to “place the welfare of human subjects at risk, social research tends to threaten the rights of its subjects.”¹⁵⁴ Bower and de Gasparis singled out six possible risks in social research: coercion, deception, invasion of privacy, breach of confidentiality, stress, and what they called (with the Moynihan Report in mind) collective, group, or social risks—the potential damage that issued from identification of intergroup comparisons and invidious distinctions. The harms ran the gamut from “anxiety, shock, horror, fear” or “psychological injury” to “loss of self-esteem” and “generation of self-doubt.”¹⁵⁵ But the feature that most distinguished social research, they contended, was its special capacity to invade privacy.¹⁵⁶ Although an infrequent concern in biomedical research in the 1970s, invasions of privacy were “among the major risks to which subjects of social research may be exposed.”¹⁵⁷ The very topics social researchers inquired into, the chance that confided intimacies would not remain confidential, and the use of deception to gain information were all cause for concern.¹⁵⁸

Tearoom Trade could not have been far from the minds of task force members as they grappled with setting principled guidelines for social research. It was, after all, a textbook case of the ways a researcher might “actively entrap the subject into the expression of attitudes, or confessions of sins, or displays of behavior that he would otherwise withhold.”¹⁵⁹ And it potentially imperiled the privacy not just of its actual research subjects but of all tearoom users by exposing their practices and secrets, creating collective risks. Yet the report acknowledged two quandaries. First, there was the categorical puzzle, given that there were “no real guides to what people or most people consider to be private.” Second there was the tug of the researcher’s desire to know, if not his or her right to know. “Among the most important things to study” in order to better grasp human relations, noted Bower and de Gasparis, “are precisely those aspects of attitudes, actions, and interpersonal behavior that are most ‘private.’ ” In their joint appreciation of and consternation about Humphreys’s methods, the authors laid bare the problem of privacy and social research by the 1970s. Social scientists still claimed the value of scientific inquiry and the pursuit of knowledge in its own right. But, intoned Bower and de Gasparis, “in some prestigious circles the argument appears to be losing some of its force.”¹⁶⁰

For their part, Laud Humphreys’s mentors resolutely defended the primacy of “the right to know,” as well as his particular study’s “principled humanness” and “courage to learn the truth.”¹⁶¹ They pinned criticism of Tearoom Trade to a reaction against social inquiry itself, particularly the growing public role of sociology in defining and addressing problems. They accused Humphreys’s detractors of resisting self-knowledge. And they warned of the coming of “a tame sociology” that would replace the robust progress of the discipline in recent years should such critiques succeed. They argued that “what we have here is not a conflict between nasty snoopers and the right to privacy, but a conflict between two goods: the right to privacy and the right to know.” Privacy, they ventured, might simply need to be sacrificed on the altar of socially useful research. “The really tough moral problem,” they concluded, “is that the idea of an inviolable right of privacy may move counter to the belief that society is obligated to secure the other rights and welfare of its citizenry.”¹⁶² In their view, social knowledge about citizens sometimes necessarily ought to prevail over those same citizens’ liberties.

Not surprisingly, Humphreys agreed that “the pursuit of truth, the creation of countervailing knowledge, the demystification of shadowy areas of human experience” were all worth the possible risks to research subjects’ privacy.¹⁶³ Prior to his foray into the tearooms, he stressed, the only “systematic observers” of sex in public restrooms had been law enforcement agents. He lamented that the references in a lone study of arrests in Los Angeles County for “felonious homosexual offenses” from 1962 to 1964 (and of which a stunning 56 percent, 274 of 493, occurred in public restrooms) constituted “nearly all the literature on this subject.”¹⁶⁴ The sociologist did not remark on the striking similarities between his tactics and those of the police for gathering knowledge about the tearooms. That, perhaps, would have been too risky an admission of their shared investment in social surveillance. But he justified his study by noting that law enforcement agents ought not be the sole source of information about public sex. Deviance would be known in one way or another, he implied. Properly trained scholars would put that knowledge to better and more humane uses than would agents of the law. Noting that vice squads had employed closed-circuit TV, one-way mirrors, and decoys to catch tearoom users in the act, he opined, “To my mind these are the people who’re the dangerous observers.”¹⁶⁵

Laud Humphreys, if grudgingly, eventually came around partway to the position of his critics. In line with new regulations on human subjects, he advised his own students to obtain the consent of all research participants before interviewing them. He stated too that were he to begin the tearoom study all over again he would spend an additional year cultivating willing respondents rather than observing them unawares, no matter what information would be lost. Yet he and some of his social scientific colleagues continued to decry the costs of public ignorance about the realities of social life, and to champion the need for risk-taking researchers to reveal them.¹⁶⁶ Still vigorously defending his methods at the end of the 1970s, the sociologist argued that “not one of my 100 respondents has ever reported suffering harm as a result of my research” and indeed that many, even the “deceived” ones, “have expressed appreciation for the ways they have benefited from the study.”¹⁶⁷ Humphreys was also busy protesting, along with colleagues who had formed a “committee of concern,” the updated human subjects regulations being proposed by the Department of Health, Education and Welfare. Interference of federal authorities in research, in the form of prior review, was “improper and unconstitutional”—a form of “censorship”—the committee declared. Scholarship should “in a free society” be guided not by government oversight but by “private and professional decisions.”¹⁶⁸ The researcher’s right to know may have been tamed, but it was still a prerogative worth fighting for, even in a new age of privacy.

What in the end did distinguish the vice patrol from the ethnographer, the Peeping Tom from the “peeping parson”? Ought those in the business of social knowledge have special leeway to uncover others’ secrets? Scholars would divide on the question of whether they themselves ought to be counted as “dangerous observers,” some believing that the risks to research subjects had been overblown and others deeply troubled by ethical quandaries about deception and consent. Today’s regime of Institutional Review Boards and federal regulations reflects the current shape of that debate. As one recent commentator writes, that system is sustained by “the suspicion … that researchers might try to get away with something unethical if not monitored—and the strong sense that because researchers have to be monitored, they must be untrustworthy.”¹⁶⁹ Scholars in Laud Humphreys’s day as well as our own have chafed at such rules. And yet, in the 1970s, some spied in public discussions “considerably more exquisite ethical sensitivities” about research participants’ dignity and privacy than those contained in federal guidelines.¹⁷⁰

The clearest outcome of the fracas over Tearoom Trade was not the new regulations for research, but rather the emerging sensibility they imperfectly sought to capture: that the individual’s privacy and dignity had to serve as a kind of baseline against the pursuit of new knowledge. In the 1975 “Retrospect” to his book, Humphreys wrote, “It should be evident to the reader that an author who devotes twenty percent of a monograph to exposition of his research methods and their ethical implications anticipates that some controversy will be raised about them.” He swore that “in 1969, however, I did not foresee the degree of both positive and negative reaction this study would inspire or that interest in its ethical implications would continue well into the following decade.”¹⁷¹

The sociologist indeed both fell victim to and helped inspire a new ethical complex around social inquiry. An example of pioneering ethnography in the late 1960s, by 1979 Humphreys’s study could be characterized in the pages of the journal Science, alongside Stanley Milgram’s and Philip Zimbardo’s experiments, as “a classic in the fast-growing field of ethics in social science research, where it is commonly cited as a crass violation of subjects’ rights.” In the author’s crisp summary, Humphreys had “deceived his subjects, failed to get anything remotely resembling informed consent from them, lied to the Bureau of Motor Vehicles, and risked doing grave damage to the psyches and reputations of his subjects.” She explained that, no matter how protective of the subjects’ confidentiality, “such a project is regarded as indefensible in the ethical climate of the late 1970’s.”¹⁷²

Decades later, this is how the study is most often remembered, sociology textbooks referencing Humphreys’s work under headings such as “Ethical Issues in Sociological Research” and “Invasion of Privacy.”¹⁷³ When Tearoom Trade was resurrected by the New York Times in 2007 to comment on the bathroom arrest of a Republican senator, Idaho’s Larry Craig, its usefulness as social ethnography was noted, but so was its status as “a primary example of unethical research.”¹⁷⁴ Laud Humphreys’s present-day admirers find themselves caught on the horns of the same dilemma. His biographers recognize that research like that in Tearoom Trade, in part responsible for the rise of Institutional Review Boards, could never be conducted today. They worry over such regulations’ impact on the stock of social knowledge. At the same time, they admit that Humphreys’s research “contributed to the constantly shrinking private space in the modern world.”¹⁷⁵

That contracting space more and more occupied Americans who reflected in the 1970s on the fate of privacy in a knowing society. The questions were now more complex than simply whether citizens would be known and by whom. Americans would ask what kind of privacy citizens could reasonably achieve in the modern United States. And they would wonder, along with the tearoom study’s critics, who would police the knowers. Increasingly, these concerns would fix not on the individual research subject or researcher but on the masses of identifying information quietly accumulating in the society’s data banks.