1. W. H. Auden, “The Unknown Citizen,” in Another Time (London: Faber and Faber, 1940), 96–97; the poem was composed in 1939 and first published in The New Yorker, January 6, 1940, p. 19. See Edward Mendelson, ed., W. H. Auden: Collected Poems (London: Faber and Faber, 1976), 201.
2. Anita L. Allen and Erin Mack, for example, write of nineteenth-century women having “too much of the wrong kind of privacy.” “How Privacy Got Its Gender,” Northern Illinois University Law Review 10 (Spring 1990): 441–478. Recent writings on the power of recognition from the state have called attention to the detrimental effects of social invisibility for the disenfranchised. See Simon Szreter and Keith Breckenridge, eds., Registration and Recognition: Documenting the Person in World History (Oxford: Oxford University Press, 2012).
3. For a discussion of citizenship’s legal and conceptual underpinnings in the United States and the distinction between “formal citizenship status” and “full and equal” membership in the nation, see Barbara Young Welke, “Law, Personhood, and Citizenship in the Long Nineteenth Century: The Borders of Belonging,” in The Cambridge History of Law in America, vol. 2, ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), quote on p. 363.
4. Historians, for instance, have noted the ways that the ability to participate in consumer markets became critical to citizenship in the post–World War II United States; see Lizabeth Cohen, A Consumers’ Republic: The Politics of Mass Consumption in Postwar America (New York: Knopf, 2003). Other modes of citizenship, including social citizenship, biosociality, biological citizenship, and therapeutic citizenship, have been fleshed out as well. See for example T. H. Marshall, Citizenship and Social Class, and Other Essays (Cambridge: Cambridge University Press, 1950); Paul Rabinow, “Artificiality and Enlightenment: From Sociobiology to Biosociality,” in Essays on the Anthropology of Reason (Princeton, NJ: Princeton University Press, 1996), 91–111; Adriana Petryna, Life Exposed: Biological Citizens after Chernobyl (Princeton, NJ: Princeton University Press, 2002); and Nikolas Rose, The Politics of Life Itself: Biomedicine, Power, and Subjectivity in the Twenty-First Century (Princeton, NJ: Princeton University Press, 2006).
5. These are just three titles among a very long list from the last two decades: Julia Angwin, Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance (New York: Times Books, 2014); David Brin, The Transparent Society: Will Technology Force Us to Choose between Privacy and Freedom? (Reading, MA: Addison-Wesley, 1998); and Robert O’Harrow Jr., No Place to Hide (New York: Free Press, 2005).
6. Richard F. Hixson, Privacy in a Public Society: Human Rights in Conflict (New York: Oxford University Press, 1987), xv; Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999), 3–4.
7. See Colin J. Bennett and Charles D. Raab, The Governance of Privacy: Policy Instruments in Global Perspective, 2nd rev. ed. (Cambridge, MA: MIT Press, 2006).
8. An early book-length version of this argument appeared almost a half-century ago: Jerry M. Rosenberg’s The Death of Privacy (New York: Random House, 1969). Recent statements have come from the likes of Sun Microsystems’ CEO Scott McNealy, New York Times columnist Thomas Friedman, and Facebook founder Mark Zuckerberg. Polly Sprenger, “Sun on Privacy: Get Over It,” Wired (January 26, 1999); Thomas Friedman, “Four Words Going Bye-Bye,” New York Times, May 21, 2014, p. A29; Bobbie Johnson, “Privacy No Longer a Social Norm, Says Facebook Founder,” The Guardian, January 10, 2010.
9. There are notable exceptions. See especially Rochelle Gurstein, The Repeal of Reticence: A History of America’s Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art (New York: Hill and Wang, 1996), and Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002). The nineteenth century has fared better, especially in the hands of literary scholars. See, for example, Milette Shamir, Inexpressible Privacy: The Interior Life of Antebellum American Literature (Philadelphia: University of Pennsylvania Press, 2006); Stacey Margolis, The Public Life of Privacy in Nineteenth-Century American Literature (Durham, NC: Duke University Press, 2009); and Katherine Adams, Owning Up: Privacy, Property, and Belonging in U.S. Women’s Life Writing (New York: Oxford University Press, 2009). Other important recent works are David Vincent, Privacy: A Short History (Boston: Polity Books, 2016), and for the British context, Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (London: Viking, 2013).
10. This literature is vast. For starting points, see Robert Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” California Law Review 77: 5 (1989): 957–1010; Jeb Rubenfeld, “The Right of Privacy,” Harvard Law Review 102: 4 (1989): 737–807; David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan, 1994); John W. Johnson, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (Lawrence: University Press of Kansas, 2005); Lawrence M. Friedman, Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford, CA: Stanford Press, 2007); and Neil M. Richards and Daniel J. Solove, “Prosser’s Privacy Law: A Mixed Legacy,” California Law Review 98 (2010): 1887–1924.
11. For exemplary recent works, see Samantha Barbas, Laws of Image: Privacy and Publicity in America (Stanford, CA: Stanford Law Books, 2015); Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013); and Alfred W. McEvoy, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison: University of Wisconsin Press, 2009). There is also a well-developed literature on “private life.” See the multivolume A History of Private Life (Cambridge, MA: Harvard University Press); most relevant to this discussion is volume 5, Riddles of Identity in Modern Times, ed. Antoine Prost and Gérard Vincent (1991). Patricia Meyer Spacks notes, however, that privacy has little to do with the traditional distinction between public and private spheres and that the term “privacy” “has received much less historicized attention.” Privacy: Concealing the Eighteenth-Century Self (Chicago: University of Chicago Press, 2003), 4.
12. See, for example, the dueling plots of Christian Parenti, The Soft Cage: Surveillance in America from Slavery to the War on Terror (New York: Basic Books, 2003) and Garrow, Liberty and Sexuality.
13. As anthropologist Susan Gal writes, “public and private do not simply describe the social world in any direct way; they are rather tools for arguments about and in that world.” “A Semiotics of the Public/Private Distinction,” differences: A Journal of Feminist Cultural Studies 13: 1 (2002): 79.
14. Lawrence Tribe, American Constitutional Law, 2nd ed. (Mineola, NY: West Academic Publishing, 1988), 1302.
15. Christena Nippert-Eng, Islands of Privacy (Chicago: University of Chicago Press, 2010), 6.
16. In the influential terms laid out by David Hollinger, public discourses around privacy seem both to intersect with and inform the more precise discourses of specialized academic and legal communities. David A. Hollinger, “Historians and the Discourse of Intellectuals,” in In the American Province: Studies in the History and Historiography of Ideas (Bloomington: Indiana University Press, 1985), 130–151.
17. For a compelling recent statement of this argument, see Khiara M. Bridges, The Poverty of Privacy Rights (Stanford, CA: Stanford Law Books, 2017).
18. Simone Browne suggests for this reason that the “conditions of blackness” might “help social theorists understand our contemporary conditions of surveillance.” Dark Matters: On the Surveillance of Blackness (Durham, NC: Duke University Press, 2015), 8.
19. One classic statement is by Edward Shils, “Privacy: Its Constitution and Its Vicissitudes,” Law and Contemporary Problems 31 (1966): 301, 291, although Shils noted privacy’s broader appeal to the “upper sections of the working classes” by the later nineteenth century. Alan Westin referred to the first calls for a “right to privacy” in the United States as “a protest by spokesmen for patrician values” against those of mass society in his Privacy and Freedom (New York: Atheneum, 1967), 348. See also Barry Schwartz, “The Social Psychology of Privacy,” American Journal of Sociology 70 (May 1968): 743.
20. E. L. Godkin, “The Right to Privacy,” The Nation, December 25, 1890, p. 497.
21. A number of other works by Auden in this period also carry themes of national or official culture’s oppositional relationship to the individual, including his “School Children” and “Dover.” As one authority writes, “Almost all critics have overlooked the depth and thoroughness of Auden’s critique of that most modern marker of personal identity, nationality.” Stan Smith, ed., The Cambridge Companion to W. H. Auden (New York: Cambridge University Press, 2004), 44.
22. Westin, Privacy and Freedom, 7.
23. Daniel Solove, Understanding Privacy (Cambridge, MA: Harvard University Press, 2008), 1.
24. Gary T. Marx, Windows into the Soul: Surveillance and Society in an Age of High Technology (Chicago: University of Chicago Press, 2016), 27.
25. Legal scholars, feminist theorists, and philosophers have made valiant efforts to pin down the term, something I will not attempt to do here. Key works include Westin, Privacy and Freedom; Ruth Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (1980): 421–428; Ferdinand Schoeman, ed., Philosophical Dimensions of Privacy: An Anthology (Cambridge: Cambridge University Press, 1984); Hixson, Privacy in a Public Society; Joan B. Landes, ed., Feminism, the Public, and the Private (New York: Oxford University Press, 1998); Etzioni, The Limits of Privacy; and Anita L. Allen, Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (Lanham, MD: Rowman & Littlefield, 2003). Leading treatments in the past decade include Solove, Understanding Privacy; Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford, CA: Stanford Law Books, 2010); and Julie Cohen, “What Privacy Is For,” Harvard Law Review (2013): 1904–1933. Another set of scholars has explored the politics of privacy—whether it is at base a liberatory or coercive social value—something I do not take up here except as it affects public debates in the past.
26. Historians have carefully unearthed the growing apparatus of the American surveillance state from the late nineteenth century onward, including covert intelligence networks and domestic espionage. Most Americans at the time lived blissfully unaware of this surveillance net, however.
27. One should not overdraw the distinction. Scholars have convincingly portrayed the work of governance in the twentieth century as a public-private partnership, with the duties of the state partnered with, taken over by, or outsourced to private or voluntary organizations. See Brian Balogh, The Associational State: American Governance in the Twentieth Century (Philadelphia: University of Pennsylvania Press, 2015), and Gary Gerstle, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton, NJ: Princeton University Press, 2015).
1. Henry James, The Complete Notebooks of Henry James, ed. Leon Edel and Lyall H. Powers (New York: Oxford University Press, 1987), 40; quoted in Rochelle Gurstein, The Repeal of Reticence: A History of America’s Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art (New York: Hill and Wang, 1996), 35. See James’s The Reverberator of 1888. The novel, which was originally serialized in Macmillan’s magazine that year, concerns the publication of scandalous information about a Parisian family printed in an American newspaper.
2. Frederick S. Lane, American Privacy: The 400-Year History of Our Most Contested Right (Boston: Beacon Press, 2009), 30–31; Stanley Reiser, “Technology and the Senses in Twentieth Century Medicine,” in Medicine and the Five Senses, ed. W. F. Bynum and Roy Porter (New York: Cambridge University Press, 1993), 265.
3. Robert H. Wiebe, The Search for Order, 1877–1920 (New York, 1967), xiii, 2–3.
4. See James Vernon, Distant Strangers: How Britain Became Modern (Berkeley: University of California Press, 2014), 18–50. Sociologist Steven L. Nock argues that life among strangers “produced greater and more pervasive privacy,” but that “social mechanisms of surveillance have been elaborated or developed” in response in order to manage the problems of reputation and trust. In effect, “a society of strangers is one of immense personal privacy. Surveillance is the cost of that privacy.” The Costs of Privacy: Surveillance and Reputation in America (Hawthorne, NY: Aldine De Gruyter, 1993), 1; emphasis in original.
5. One scholar characterizes this era as one when “issues of ‘privacy’ and ‘publicity’ became something of a public crisis.” See Stacy Margolis, “The Public Life: The Discourse of Privacy in the Age of Celebrity,” Arizona Quarterly 51:2 (Summer 1995): 81–101; quote on p. 84.
6. The controversy stirred up by Anne Royall, “America’s first nationally recognized gossip columnist,” is just one example. Royall was a critic who from 1826 on “pried shamelessly into the lives of others” in order to skewer contemporary politics and personalities. See Nancy Isenberg, “The Infamous Anne Royall: Jacksonian Gossip, Scribbler, and Scold,” in When Private Talk Goes Public: Gossip in American History, ed. Kathleen A. Feeley and Jennifer Frost (New York: Palgrave Macmillan, 2014), 79–100; quote on p. 89.
7. David Flaherty, Privacy in Colonial New England (Charlottesville: University Press of Virginia, 1972), 245.
8. Jonathan L. Hafetz, “ ‘A Man’s Home Is His Castle?’ Reflections on the Home, the Family, and Privacy during the Late Nineteenth and Early Twentieth Centuries,” William & Mary Journal of Women and the Law 8 (2001): 175–242.
9. See Flaherty, Privacy in Colonial New England; Edmund S. Morgan, The Puritan Family: Religion and Domestic Relations in Seventeenth-Century New England, rev. ed. (New York: Harper & Row, 1966); and Laurel Thatcher Ulrich, Good Wives: Image and Reality in the Lives of Women in Northern New England, 1650–1750 (New York: Knopf, 1982).
10. John Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970), 186, 152, 46–47. Demos emphasizes the scrutiny of Puritan households by the larger community, precisely because of the many important social functions the family played. “When a given family failed in some area, or experienced serious conflict among its individual members, the authorities might decide to intervene. The ‘harmony’ of husband and wife, the subordination of children to parents—even such internal matters as these came, in theory, under official scrutiny,” 184.
11. Flaherty, Privacy in Colonial New England, 245. Flaherty establishes that colonists saw privacy as “part of their traditional English heritage” and that a “right of privacy existed … that was both traditional and customary,” 242, 248.
12. See the discussion of existing protections of communications; “the sanctity of the mails”; the home; and client-attorney, patient-doctor, and penitent-priest confidentiality in Comment, “The Right to Privacy in Nineteenth Century America,” Harvard Law Review 94: 8 (1981): 1892–1910.
13. Simone Browne, Dark Matters: On the Surveillance of Blackness (Durham, NC: Duke University Press, 2015). See also Sally E. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge, MA: Harvard University Press, 2001).
14. John W. Johnson, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (Lawrence: University Press of Kansas, 2005), 57.
15. See Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York: Oxford University Press, 1995).
16. David J. Seipp, “The Right to Privacy in American History” (Cambridge, MA: Harvard University, Program on Information Resources Policy, 1978), 5.
17. See Dorothy J. Glancy, “The Invention of the Right to Privacy,” Arizona Law Review 21: 1 (1979): 1–39. She writes that “up until Warren and Brandeis published The Right to Privacy, most of the legal discussion had focused on the individual’s right to privacy as a limitation on governmental interferences with individual freedom”; this began to change at midcentury, 29. Philippa Strum has argued in fact that there were few opportunities to invade privacy and no real need to articulate a right to such before the later nineteenth century. Privacy: The Debate in the United States since 1945 (New York: Harcourt Brace, 1998).
18. Lane, American Privacy, 32–33; Seipp, “The Right to Privacy in American History,” 15.
19. “To live an entirely private life,” wrote Hannah Arendt, capturing this older sense of privacy, “means above all to be deprived of things essential to a truly human life: to be deprived of the reality that comes from being seen and heard by others.” The Human Condition, 2nd ed. (Chicago: University of Chicago Press, 2013 [1958]), 58.
20. Michael A. Weinstein explains that “privacy, like alienation, loneliness, ostracism, and isolation, is a condition of being-apart-from-others. However, alienation is suffered, loneliness is dreaded, ostracism and isolation are borne with resignation or pain, while privacy is sought after.” “The Uses of Privacy in the Good Life,” in Privacy and Personality, ed. J. Roland Pennock and John W. Chapman (New Brunswick, NJ: Aldine/Transaction, 1971), 88. Solitude and isolation were considered sinful in classical thought because they were linked to self-love, privation, and man’s ability to close in on himself. David Rosen and Aaron Santesso note that it was only “with considerable ambivalence that, over the eighteenth century, the connotations of being alone slowly shifted from the negative to the positive.” “Inviolate Personality and the Literary Roots of the Right to Privacy,” Law and Literature 23: 1 (2011): 1–25; quote on p. 11.
21. Patricia Meyer Spacks charts the emergence of these connotations of privacy in eighteenth-century novels in Privacy: Concealing the Eighteenth-Century Self (Chicago: University of Chicago Press, 2003), 228.
22. The literature on domesticity and separate spheres is extensive. Key early works are Barbara Welter, “The Cult of True Womanhood,” American Quarterly 18 (1966): 151–174; Nancy Cott, The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780–1835 (New Haven, CT: Yale University Press, 1977); and Mary P. Ryan, The Cradle of the Middle Class: The Family in Oneida County, New York, 1790–1865 (Cambridge: Cambridge University Press, 1981).
23. Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy (New Haven, CT: Yale University Press, 2009), 1–2.
24. Michael McKeon provides a comprehensive history of the public-private division as it solidified in England across the seventeenth and eighteenth centuries in The Secret History of Domesticity: Public, Private, and the Division of Knowledge (Baltimore: Johns Hopkins University Press, 2005). For the nineteenth century, see Inga Bryden and Janet Floyd, eds., Domestic Space: Reading the Nineteenth-Century Interior (New York: Manchester University Press, 1999).
25. John L. Locke, Eavesdropping: An Intimate History (New York: Oxford, 2010), 25.
26. Milette Shamir, Inexpressible Privacy: The Interior Life of Antebellum American Literature (Philadelphia: University of Pennsylvania Press, 2006), 4; S. J. Kleinberg, “Gendered Space: Housing, Privacy and Domesticity in the Nineteenth-Century United States,” in Bryden and Floyd, eds., Domestic Space, 142–161.
27. John F. Kasson, Rudeness and Civility: Manners in Nineteenth-Century Urban America (New York: Hill and Wang, 1990).
28. Jane H. Hunter, “Inscribing the Self in the Heart of the Family: Diaries and Girlhood in Late-Victorian America” American Quarterly 44: 1(1992): 51–81.
29. Edward Shils, “Privacy: Its Constitution and Vicissitudes,” Law and Contemporary Problems 31 (1966): 281–306. See also Martin Hewitt, “District Visiting and the Constitution of Domestic Space in the Mid-Nineteenth Century,” in Bryden and Floyd, eds., Domestic Space, 121–141. Lawrence M. Friedman agrees that the notion that “home is the haven, the island of immunity, the place of private life” only became well established for “the average person” in the nineteenth century. Private Lives: Families, Individuals, and the Law (Cambridge, MA: Harvard University Press, 2004), 9.
30. Justine S. Murison, “ ‘Nudity and Other Sensitive States’: Counterprivacy in Herman Melville’s Fiction,” American Literature 89: 4 (2017): 699.
31. On the Beecher-Tilton scandal, see Richard Wightman Fox, Trials of Intimacy: Love and Loss in the Beecher-Tilton Scandal (Chicago: University of Chicago Press, 1999); and Debby Applegate, The Most Famous Man in America: The Biography of Henry Ward Beecher (New York: Doubleday, 2006). For the way Beecher’s case would inform and constrain the later “right to privacy,” see Susan E. Gallagher, “Privacy and Conformity: Rethinking ‘The Right Most Valued by Civilized Men,’ ” Touro Law Review 33: 1 (2017): 159–175.
32. Henry Ward Beecher, as quoted in Life Thoughts from Pulpits and from Poets, selected by Alfred I. Holmes (Brooklyn, NY: A. I. Holmes, 1871), 218–219.
33. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (New York: Viking, 2013). Cohen argues, in the British context, that “private” family life always entailed the external management of reputation. She argues further that the efforts of Victorian and Edwardian families to shield the indiscretions of their members from outsiders laid the groundwork for privacy rights of the later twentieth century: “the right to tell without cost,” 268. See also Brian Connolly, Domestic Intimacies: Incest and the Liberal Subject in Nineteenth-Century America (Philadelphia: University of Pennsylvania Press, 2014); and Lawrence Friedman, Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford, CA: Stanford University Press, 2007). For debates over the propriety of publicizing domestic affairs in the political arena in the earlier nineteenth century, see Norma Basch, “Marriage, Morals, and Politics in the Election of 1828,” Journal of American History 80: 3 (December 1993): 890–918.
34. Gallagher, “Privacy and Conformity,” 168, 171–172.
35. Ruth H. Bloch, “The American Revolution, Wife Beating, and the Emergent Value of Privacy,” Early American Studies: An Interdisciplinary Journal 5: 2 (2007): 223–251. A legal landmark was the 1824 case of Bradley v. State, “in which the value of familial privacy was joined to the (unfounded) premise that husbands possess an age-old right to physically chastise disobedient wives.” See also Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998); and Reva B. Siegel, “The Rule of Love: Wife Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996): 2117–2207.
36. Quoted in Gurstein, The Repeal of Reticence, 29. Others made a similar case, including Crystal Eastman and later Virginia Woolf. See Crystal Eastman on Women and Revolution, ed. Blanche Wiesen Cook (New York: Oxford University Press); and Woolf, A Room of One’s Own (London: Leonard and Virginia Woolf at the Hogarth Press, 1929).
37. Anita L. Allen and Erin Mack, “How Privacy Got Its Gender,” Northern Illinois University Law Review 10 (Spring 1990): 441–478.
38. Quoted in Reva B. Siegel “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115: 4 (2002): 947–1008; quote on p. 1001. As Siegel notes, the senator portrayed “the federal government enfranchising women in the form of a man meddling in another’s marital business.” See also Rebecca Ann Rix, “Gender and Reconstitution: The Individual and Family Basis of Republican Government Contested, 1868–1925” (PhD diss., Yale University, 2008).
39. Boyd. v. United States, 116 U.S. 616, 630 (1886).
40. Gurstein, The Repeal of Reticence, 17–18.
41. To cite just one example, some residents of Society Hill in Philadelphia in the late nineteenth century used “house mirrors” to monitor what was going on up and down the block; Locke, Eavesdropping, 27.
42. Shils, “Privacy: Its Constitution and Vicissitudes,” 293–294. As he described it, this was “a new sector of the profession of journalism that regarded the penetration of the private sphere as its main occupational task.”
43. David E. Shi, Facing Facts: Realism in American Thought and Culture, 1850–1920 (New York: Oxford University Press, 1995).
44. Indeed, the eminence accorded to Samuel Warren and Louis Brandeis’s “The Right to Privacy,” published in the Harvard Law Review in 1890, has led scholars to overlook how peripheral its concerns were for Brandeis. Neil Richards contends that Brandeis’s “subsequent public career shows a devotion not to the right of privacy, but to identifying and developing an alternative value he called ‘the duty of publicity.’ ” “The Puzzle of Brandeis, Privacy, and Speech,” 1300. See also Kenneth Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004), 56. On the “duty of publicity,” see Melvyn Urofsky, Louis D. Brandeis: A Life (New York: Pantheon Books, 2009), 98.
45. Martin Bulmer, Kevin Bales, and Kathryn Kish Sklar, eds., The Social Survey in Historical Perspective, 1880–1940 (New York: Cambridge University Press, 1991); Ellen F. Fitzpatrick, Endless Crusade: Women Social Scientists and Progressive Reform (New York: Oxford University Press, 1990); Cecelia Tichi, Exposés and Excess: Muckraking in America 1900–2000 (Philadelphia: University of Pennsylvania Press, 2004); Steve Weinberg, Taking on the Trust: The Epic Battle of Ida Tarbell and John D. Rockefeller (New York: W. W. Norton, 2008); Michael Schudson, Discovering the News: A Social History of American Newspapers (New York: Basic Books, 1978).
46. Gurstein, Repeal of Reticence, 32–33, 38. See also Helen Lefkowitz Horowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth-Century America (New York: Alfred A. Knopf, 2002).
47. David Seipp addresses in detail the political concerns about monopoly over the news, as well as campaigns for government ownership of the telegraph network, known as the “postal telegraphy” movement, in “The Right to Privacy in American History,” 59–65; quotation on p. 56.
48. The Associated Press, writes Menahem Blondheim, was likely the first “private-sector monopoly to operate on a national scale in the United States.” News over the Wires: The Telegraph and the Flow of Public Information in America, 1844–1897 (Cambridge, MA: Harvard University Press, 1994), 7.
49. Richard White emphasizes the battles over the mass circulation and control of networked financial information and the possibilities it introduced for corruption, as “quotidian faults—lying, deception, and dishonesty—played out largely on paper and along telegraph lines, but on a national and international scale.” See his “Information, Markets, and Corruption: Transcontinental Railroads in the Gilded Age,” Journal of American History 90: 1 (2003): 21, and more generally, Railroaded: The Transcontinentals and the Making of Modern America (New York: Norton, 2011).
50. Gallagher, “Privacy and Conformity,” 171.
51. Seipp, “The Right to Privacy in American History,” 104.
52. Alfred W. McCoy summarizes this burst of technological innovation in Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison: University of Wisconsin Press, 2009), 21–23.
53. Quoted in Seipp, “The Right to Privacy in American History,” 13.
54. Horowitz, Rereading Sex, 358–403; Donna Dennis, Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York (Cambridge, MA: Harvard University Press, 2009), 238–304.
55. See, for example, New York Times, July 10, 1872, p. 4; “Postal Cards and Privacy,” New York Times, June 17, 1875, p. 4.
56. Quoted in Lane, American Privacy, 30–31.
57. See Simone Müller, Wiring the World: The Social and Cultural Creation of Global Telegraph Networks (New York: Columbia University Press, 2016).
58. David Hochfelder, The Telegraph in America, 1832–1920 (Baltimore: Johns Hopkins University Press, 2013), 83.
59. Seipp, “The Right to Privacy in American History,” 105.
60. Glancy, “The Invention of the Right to Privacy,” 7.
61. Wiretapping had already been criminalized in some states by 1890 or was prohibited via “laws against interference with telegraph company property.” In addition, “disclosure by employees, including operators and those with access to messages retained in office files, was prohibited by company rules and by statute in nearly every state.” See Comment, “The Right to Privacy in Nineteenth Century America,” 1901.
62. Tom Standage, The Victorian Internet: The Remarkable Story of the Telegraph and the Nineteenth Century’s On-Line Pioneers (New York: Walker and Company, 1998).
63. Extensive congressional searches of telegraph messages during Reconstruction, sometimes with the cooperation of telegraph companies—related to questions of official misconduct and voting fraud during the 1876 election controversy—prompted “the first important appeal for legal recognition of a right to privacy” in the late nineteenth century, according to Seipp; “The Right to Privacy in American History,” 30. He notes that issuing subpoenas for telegraph transmissions rather than direct wiretapping was the chief practice and concern, 105.
64. Seipp, “The Right to Privacy in American History,” 107–108.
65. As the operator became less visible and party lines disappeared, expectations of privacy increased; Seipp, “The Right to Privacy in American History,” 108.
66. Quoted in Claude S. Fischer, America Calling: A Social History of the Telephone to 1940 (Berkeley: University of California Press, 1992), 71.
67. Quoted in Lane, American Privacy, 78.
68. Seipp, “The Right to Privacy in American History,” 106–107.
69. Fischer, America Calling, 75–84; on rural women’s use of the telephone, see 226–227.
70. Carolyn Marvin, When Old Technologies Were New: Thinking about Electric Communication in the Late Nineteenth Century (New York: Oxford University Press, 1988), 67–108; Claude S. Fischer, “ ‘Touch Someone’: The Telephone Industry Discovers Sociability,” Technology and Culture 29: 1 (January 1988): 32–61; Fischer, America Calling, chs. 3, 8. Fischer notes that telephone companies even tried to “script appropriate conversation,” including a failed campaign to suppress the greeting “hello” as a vulgarity, 70–71.
71. Robert MacDougall, “The Wire Devils: Pulp Thrillers, the Telephone, and Action at a Distance in the Wiring of a Nation,” American Quarterly 58: 3 (2006): 715–741. For more on the fears and fascination raised by the “wire” see Linda Simon, Dark Light: Electricity and Anxiety from the Telegraph to the X-Ray (Orlando: Harcourt, 2004).
72. Arthur Stringer, Phantom Wires (Boston: Little, Brown, 1907), 221–222. See also The Wire Tappers (Boston: Little, Brown, 1906). The national telephone and telegraph networks set off both utopian and dystopian representations, complete with metaphors of the octopus, spider, and hydra; MacDougall, “The Wire Devils.”
73. Lane, American Privacy, 22.
74. Jessica Lake, The Face That Launched a Thousand Lawsuits: The American Women Who Forged a Right to Privacy (New Haven, CT: Yale University Press, 2016), 27–28, 30. For a comprehensive cultural history of American photography, see Miles Orvell, American Photography (New York: Oxford University Press, 2003).
75. Robert Mensel, “Kodakers Lying in Wait: Amateur Photography and the Right of Privacy in New York, 1885–1915,” American Quarterly 43 (March 1991): 24–45.
76. Lake, The Face That Launched a Thousand Lawsuits, 13.
77. Lake, The Face That Launched a Thousand Lawsuits, 30, 33.
78. Ronald R. Thomas, “Making Darkness Visible: Capturing the Criminal and Observing the Law in Victorian Photography and Detective Fiction,” in Victorian Literature and the Victorian Visual Imagination, ed. Carol T. Christ and John O. Jordan (Berkeley: University of California Press, 1995), 147.
79. Lake, The Face That Launched a Thousand Lawsuits, 33.
80. Frank Luther Mott, American Journalism: A History, 1690–1960 (New York: Macmillan, 1962), 444; Frederick Lane, American Privacy, 22; F. B. Sanborn of the Springfield Republican as quoted in Seipp, “The Right to Privacy in American History,” 67.
81. See Minot J. Savage, “A Profane View of the Sanctum,” North American Review 141 (August 1885): 145; C. B. Pallen, “Newspaperism,” Lippincott’s 38 (November 1886): 475. Both are quoted in Seipp, “The Right to Privacy in American History,” 68.
82. John Gilmer Speed, “The Right of Privacy,” North American Review 163 (July 1896): 73. Frank Luther Mott, History of American Magazines, vol. 4: 1885–1905 (Cambridge, MA: Belknap Press of Harvard University Press, 1958–1968), 1–14, 751–755.
83. Maureen E. Montgomery, Displaying Women: Spectacles of Leisure in Edith Wharton’s New York (New York: Routledge, 1998), 143.
84. Sven Beckert, The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850–1896 (New York: Cambridge University Press, 2001). Beckert has traced the consolidation of a monied elite by the 1890s, rooted in New York, which both saw itself as a class apart and was perceived as such by others, engendering deep class hostilities.
85. E. L. Godkin would charge for this reason that gossip had been altered by “the advent of the newspapers, or rather of a particular class of newspapers,” converting curiosity into “an effectual demand” and gossip “a marketable commodity.” Godkin, “The Rights of the Citizen: To His Own Reputation,” Scribner’s Magazine (July 1890): 66.
86. Lane, American Privacy, 48; Montgomery, Displaying Women, 147; New York World, Sunday Magazine section, August 10, 1902, pp. 6–7.
87. Montgomery, Displaying Women, 146.
88. Don R. Pember, Privacy and the Press (Seattle: University of Washington Press, 1972); Schudson, Discovering the News, 91–105.
89. Samantha Barbas, Laws of Image: Privacy and Publicity in America (Stanford, CA: Stanford University Press, 2015), 9. See also Neal Gabler’s discussion of the new visual culture of the nineteenth century in Life, the Movie: How Entertainment Conquered Reality (New York: Alfred A. Knopf, 1998).
90. Barbas, Laws of Image, 45–62; quote on p. 46.
91. Lake, The Face That Launched a Thousand Lawsuits, 45–46.
92. “Will Not Be Photographed in Tights,” Chicago Tribune, June 30, 1890, p. 6.
93. Glancy, “The Invention of the Right to Privacy,” 8. See also Brook Thomas, “The Construction of Privacy in and around the Bostonians,” American Literature 64 (December 1992): 719–747.
94. Godkin, “The Rights of the Citizen,” 65.
95. Godkin, “The Rights of the Citizen,” 58. As Dorothy Glancy notes, the fact that criminal libel and the law of defamation had fallen out of use as a defense against true but damaging information being printed made way for the new right of privacy; “The Invention of the Right to Privacy,” 12–16.
96. Godkin, “The Rights of the Citizen,” 65–67.
97. Montgomery, Displaying Women, 147.
98. See especially Edith Wharton’s House of Mirth (1905). Leo Braudy, The Frenzy of Renown: Fame and Its History (New York: Oxford University Press, 1986).
99. Loren Glass writes that private life in fact “achieved its significance through public exposure in the new metropolitan dailies and mass-market magazines.” Authors Inc.: Literary Celebrity in the United States, 1880–1980 (New York: New York University Press, 2004), 11. See also Neal Gabler, Winchell: Gossip, Power, and the Culture of Celebrity (New York: Knopf, 1994); and Margolis, “The Public Life,” 81–101.
100. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193–220. Fred Shapiro, “The Most-Cited Law Review Articles,” California Law Review 73 (1985): 1540; James H. Barron, “Warren and Brandeis, ‘The Right to Privacy,’ 4 Harvard Law Review 193 (1890): Demystifying a Landmark Citation,” Suffolk Law Review 13 (1979). Also see Linda Greenhouse, “Milestone Anniversary for the Right to Privacy,” New York Times, December 26, 1990, p. 22. Dorothy Glancy notes, more precisely, that Warren and Brandeis did not invent the “right to privacy,” but rather a legal theory that allowed other developments to be subsumed under that principle; “The Invention of the Right to Privacy,” 3. A few critics have argued that Warren and Brandeis and later commentators all exaggerated the novelty of the claim and that in fact laws concerning the home, communications, and personal information in the form of public records added up to “ample and explicit protection of privacy in its own right” already by 1890. Warren and Brandeis took up one of the least protected areas: restraint of press. See Comment, “The Right to Privacy in Nineteenth Century America,” 1894.
101. The two were law partners from 1879 to 1889, when Warren left to manage the family business; Glancy, “The Invention of the Right to Privacy,” 5.
102. The origin of Brandeis and Warren’s article has been the stuff of legal legend. One oft-told story—that the essay was provoked by the press coverage of Warren’s daughter’s wedding (impossible, as she was six years old at the time)—has been debunked by Amy Gajda in “What if Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the Press Coverage That Led to ‘The Right to Privacy,’ ” Michigan State Law Review 35 (2008): 35–60. Others have judged the lawyers’ characterization of the 1890s Boston press as inaccurate; see Pember, Privacy and the Press, 33–42.
103. Glancy, “The Invention of the Right to Privacy,” 6.
104. Roscoe Pound, “Interests of Personality,” Harvard Law Review 28 (1915): 343. The article is routinely described as the most influential legal essay in American history; Strum, Privacy: The Debate in the United States since 1945, 3. Benjamin Bratman argues that the article itself “gave birth” to a right to privacy in the United States. “Brandeis and Warren’s ‘The Right to Privacy’ and the Birth of the Right to Privacy,” Tennessee Law Review 69 (2002): 623–651. Indeed, the essay’s prominence has overshadowed other genealogies of the right to privacy in the United States. Caroline Danielson, for example, has argued for the importance of an 1881 Michigan case (and a similar claim in Vermont the year before) that revolved around bodily privacy during childbirth, rather than the “inviolable personality.” “The Gender of Privacy and the Embodied Self: Examining the Origins of the Right to Privacy in U.S. Law,” Feminist Studies 25: 2 (Summer 1999): 311–344. See also Jessica Lake’s account of DeMay v. Roberts in The Face That Launched a Thousand Lawsuits, 89–116.
105. See, for example, “The Right to Be Let Alone,” Atlantic Monthly 67 (1891): 428–429; and “The Defense of Privacy,” The Spectator 66 (February 7, 1891): 200. Allen and Mack, “How Privacy Got Its Gender,” 457, n. 84; Kyllo v. United States, 533 U.S. 27 (2001).
106. Thomas M. Cooley, A Treatise on the Law of Torts, or the Wrongs Which Arise Independent of Contract, 2nd ed. (Chicago: Callaghan & Co., 1888) declared that the “right to one’s person may be said to be a right of complete immunity” and that privacy was the right “to be let alone.” See “Symposium: The Right to Privacy One Hundred Years Later,” Case Western Reserve Law Review 41 (1990–1991).
107. These are the torts of: intrusion on seclusion, disclosure of private facts, false light, and appropriation of name or likeness. William L. Prosser, “Privacy,” California Law Review 48: 3 (1960): 383–423. See, for example, Samantha Barbas, “The Death of the Public Disclosure Tort: A Historical Perspective,” Yale Journal of Law & the Humanities 22 (2010): 171–215. Recently, a number of critics have suggested that Warren and Brandeis’s conception has become irrelevant in the “information age.” For a review, see Neil M. Richards and Daniel J. Solove, “Prosser’s Privacy Law: A Mixed Legacy,” California Law Review 98 (2010): 1887–1924.
108. Key critics are Harry Kalven Jr., “Privacy in Tort Law—Were Warren and Brandeis Wrong?” Law and Contemporary Problems 31: 2 (1966): 326–341; and Diane L. Zimmerman, “Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort,” Cornell Law Review 68 (1982–83): 291–367.
109. Warren and Brandeis, “The Right to Privacy,” 196–197.
110. Godkin, “The Rights of the Citizen,” 61.
111. Warren and Brandeis, “The Right to Privacy,” 195–196, 207, 219.
112. Warren and Brandeis, “The Right to Privacy,” 196.
113. Godkin, “The Rights of the Citizen,” 67.
114. Warren and Brandeis, “The Right to Privacy,” 196.
115. Warren and Brandeis, “The Right to Privacy,” 205, 207.
116. Quoted in Gurstein, Repeal of Reticence, 37. Georg Simmel, “The Sociology of Secrecy,” trans. Albion W. Small, American Journal of Sociology 11: 4 (1906): 454.
117. Many fields in addition to law contributed to naming and describing “personality,” including psychology, philosophy, advertising, and literature. See David M. Lubin, “Modern Psychological Selfhood in the Art of Thomas Eakins,” in Inventing the Psychological: Toward a Cultural History of Emotional Life in America, ed. Joel Pfister and Nancy Schnog (New Haven, CT: Yale University Press, 1997), 133–166. By the 1920s, “personality” had gained a more superficial, surface meaning. Warren I. Susman, “ ‘Personality’ and the Making of Twentieth-Century Culture,” in Culture as History: The Transformation of American Society in the Twentieth Century (New York: Pantheon, 1984), 271–285.
118. Glancy, “The Invention of the Right to Privacy.” Glancy observes that concerns about interior or psychological privacy were long-standing, discernible for example in James Fenimore Cooper’s, Emily Dickinson’s, and David Henry Thoreau’s writings as well. Others have traced Warren and Brandeis’s conception of an “inviolate personality” to older literary and poetic conceptions of the individual as “self-generated” and requiring solitude for authentic self-realization, as in Wordsworth. Rosen and Santesso argue that legal scholars, in neglecting that tradition, have consistently misread “The Right to Privacy.” “Inviolate Personality and the Literary Roots of the Right to Privacy.”
119. Warren and Brandeis, “The Right to Privacy,” 197.
120. Dorothy Glancy, “The Invention of the Right to Privacy.”
121. Warren and Brandeis, “The Right to Privacy,” 215–216.
122. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 50. See her discussion of early claims to a right to privacy starting on p. 50 and her discussion of the “rights of personality,” 61–63.
123. Richards and Solove, “Prosser’s Privacy Law,” 1892. Another scholar characterizes the article’s impetus as “the ‘problem’ of access by the lower classes of society to information about the upper classes.” Randall Bezanson, “The ‘Right to Privacy’ Revisited: Privacy, News, and Social Change, 1890–1990,” California Law Review 80: 5 (1992): 1133–1175.
124. Harry Kalven would write of Warren and Brandeis’s essay in the 1960s, “There is a curious nineteenth century quaintness about the grievance, an air of injured gentility.… One may perhaps wonder if the tort is not an anachronism, a nineteenth century response to the mass press which is hardly in keeping with the more robust tastes or mores of today.” “Privacy in Tort Law,” 329. On late nineteenth-century elite norms of privacy, see Friedman, Guarding Life’s Dark Secrets, and Deborah Cohen, Family Secrets.
125. Godkin, “The Rights of the Citizen,” 65.
126. Allen and Mack, “How Privacy Got Its Gender,” 441.
127. Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford, CA: Stanford Law Books, 2010), 19.
128. Brandeis as quoted in Philippa Strum, ed., Brandeis on Democracy (Lawrence: University Press of Kansas, 1995), 197; my emphasis.
129. Godkin, “The Rights of the Citizen,” 65.
130. “Travelers Dislike Privacy,” Chicago Daily Tribune, August 13, 1899, p. 39.
131. Barbas, Laws of Image, 4.
132. Lake, The Face That Launched a Thousand Lawsuits, 5, 46.
133. Lake, The Face That Launched a Thousand Lawsuits, 44, 12, 227. Lake thus argues that “in its infancy, ‘a right to privacy’ was forged and shaped” largely by “women who brought actions protesting the use or circulation of unidentified images of their faces or bodies by others,” 4, 75. She argues that these concerns preceded Warren and Brandeis’s “right to privacy” and have been overshadowed by it.
134. Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902). For a useful summary and analysis of the case and its fallout, see Gurstein, The Repeal of Reticence, 155–160.
135. Jamal Greene notes that almost all references to the “so-called right to privacy” in state courts occurred in the context of unwanted publicity or commercial exploitation. “The So-Called Right to Privacy,” UC Davis Law Review 43 (2010): 715–747.
136. Roberson v. Rochester Folding Box Co.
137. “ ‘Right of Privacy’ Denied: State Court of Appeals Reverses Decision Awarding Defendant Damages for Use of Her Likeness,” New York Times, July 2, 1902, p. 6.
138. The case was Pavesich v. New England Life Insurance Company. Georgia’s court located the right to privacy in natural law and as part of individual liberty rather than as a protection from voyeurism, which Lake links to the fact that the case centered on a male plaintiff. The Face That Launched a Thousand Lawsuits, 72–74.
139. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), 346.
140. The Supreme Court of 1891 also acknowledged a minimal right to “inviolability of the person” by ruling that railroad companies could not force a physical examination on injured persons; Union Pacific Railway v. Botsford, 141 U.S. 250 (1891).
141. Scholars have detailed the failure of Warren and Brandeis’s concept of an “inviolate personality” to gain traction in U.S. society and law. That vision of individual dignity, buoyed by public and legal deference to it, has been much more at home in Europe in the form of a “right of personality.” See Robert Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” California Law Review 77: 5 (1989): 957–1010; James Q. Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” Yale Law Journal 113 (2004): 1151–1221; Paul Schwartz and Karl-Nikolaus Peifer, “Prosser’s Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?” California Law Review 98 (2010): 1925–1988; and Spiros Simitis, “Privacy—An Endless Debate?” California Law Review 98 (2010): 1989–2005. For a defense of the “inviolate personality” concept, see Edward J. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser,” New York Law Review 39 (1964): 962–1007.
142. Prosser, “Privacy,” 383–423.
143. The “right to publicity” was confirmed in a 2nd Circuit ruling from 1953, Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., but was referenced as early as 1905 in Pavesich v. New England Life Insurance Company.
144. Richards, “The Puzzle of Brandeis, Privacy, and Speech,” 1343; Samantha Barbas, “Saving Privacy from History,” DePaul Law Review 61 (2012): 1022.
145. “No Such Thing as Private Citizen: Privacy Is Unknown, for Tab Is Kept on Him from Cradle to Grave,” Chicago Daily Tribune, July 27, 1902, p. 39.
146. Judith Walzer Leavitt, Typhoid Mary: Captive to the Public’s Health (Boston: Beacon Press, 1996); Howard Markel, Quarantine! East European Jewish Immigrants and the New York City Epidemics of 1892 (Baltimore: Johns Hopkins University Press, 1999).
147. See Amy L. Fairchild, Ronald Bayer, and James Colgrove with Daniel Wolfe, Searching Eyes: Privacy, the State, and Disease Surveillance in America (Berkeley: University of California Press, 2007), 46. See also Tera W. Hunter, To ‘joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War (Cambridge, MA: Harvard University Press, 1997), 189–193; Nayan Shah, Contagious Divides: Epidemics and Race in San Francisco’s Chinatown (Berkeley: University of California Press, 2001); Amy L. Fairchild, Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force (Baltimore: Johns Hopkins University Press, 2003); Emily K. Abel, Tuberculosis and the Politics of Exclusion: A History of Public Health and Migration to Los Angeles (New Brunswick: Rutgers University Press, 2007); Samuel Kelton Roberts Jr., Infectious Fear: Politics, Disease, and the Health Effects of Segregation (Chapel Hill: University of North Carolina Press, 2009); and Guenter B. Risse, Plague, Fear, and Politics in San Francisco’s Chinatown (Baltimore: Johns Hopkins University Press, 2012).
148. Fairchild et al., Searching Eyes, 49.
149. Fairchild et al., Searching Eyes, 10. Other forms of reporting were also required: physicians were urged to report public-health-related information, with some cities in the early twentieth century (such as Boston) investigating or prosecuting those who failed to report tuberculosis cases for example, 48.
150. “No Such Thing as Private Citizen,” p. 39.
151. Michael Willrich, Pox: An American History (New York: Penguin, 2011), 14.
152. Margo J. Anderson, The American Census: A Social History, 2nd ed. (New Haven, CT: Yale University Press, 2015), 109, 88–89. She notes that the new machinery “prompted the statisticians to attempt much more complex cross tabulations of the information on the schedules,” 107.
153. Fairchild et al., Searching Eyes, 7. Question 22, for instance, asked “whether suffering from acute or chronic disease and length of time afflicted,” and Question 23 inquired as to “whether defective in mind, sight, hearing, or speech, or whether crippled, maimed, or deformed, with name of defect.” Seipp, “The Right to Privacy in American History,” 44.
154. E. L. Godkin, “The Census Questions,” The Nation 50 (June 5, 1890): 445.
155. “The Census—A Questionable Feature,” Los Angeles Times, June 2, 1890, p. 4.
156. Seipp, “The Right to Privacy in American History,” 49–50. Some newspapers urged that citizens not respond to those questions, as did some physicians, 46. Inquiries for 1900 were scaled back, but the courts upheld a broader census inquiry in 1901 and applied legal penalties to those refusing to answer, 53.
157. McCoy, Policing America’s Empire, 24, 26. This was the “golden age of private detective work.” See Frank Morn, “The Eye That Never Sleeps”: A History of the Pinkerton National Detective Agency (Bloomington: Indiana University Press, 1982).
158. Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard University Press, 2001), 20.
159. Thomas, “Making Darkness Visible,” 136. See also Allan Sekula, “The Body and the Archive,” in The Contest of Meaning: Critical Histories of Photography, ed. Richard Bolton (Cambridge, MA: MIT Press, 1989), 353–375.
160. McCoy, Policing America’s Empire, 24.
161. McCoy argues that U.S. counterinsurgency and policing in the Philippines following occupation in 1898 paved the way for a national surveillance state at home and created the template for World War I, including “massive surveillance, vigilante violence, and the formation of a permanent internal security apparatus.” Policing America’s Empire, 8. For histories of the Bureau, see Rhodri Jeffreys-Jones, The FBI: A History (New Haven, CT: Yale University Press, 2007); Frank J. Donner, Age of Surveillance: The Aims and Methods of America’s Political Intelligence System (New York: Knopf, 1980); and Fred J. Cook, The FBI Nobody Knows (New York: Macmillan, 1964). It would be renamed the Federal Bureau of Investigation in 1935.
162. Beverly Gage, The Day Wall Street Exploded: A Story of America in Its First Age of Terror (New York: Oxford University Press, 2009), 96. Particularly important were the Haymarket bombing of 1886, the attempted shooting of Henry Clay Frick of the Carnegie Steel Works in Homestead, Pennsylvania, in 1892, and William McKinley’s assassination in 1901. For an analysis of the importance of the assassination on attitudes toward the working class and anarchism, see Eric Rauchway, Murdering McKinley: The Making of Theodore Roosevelt’s America (New York: Hill and Wang, 2003).
163. Peter Conolly-Smith details early domestic surveillance by the U.S. Bureau of Investigation, including the creation in August 1919 of its General Intelligence Division, headed by a 24-year-old J. Edgar Hoover, in “ ‘Reading between the Lines’: The Bureau of Investigation, the United States Post Office, and Domestic Surveillance during World War I,” Social Justice 36: 1 (2009): 7–24.
164. Mary Graham, Presidents’ Secrets: The Use and Abuse of Hidden Power (New Haven, CT: Yale University Press, 2017), 50–79. See also David Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980); and John Whiteclay Chambers II, To Raise an Army: The Draft Comes to Modern America (New York: Free Press, 1987).
165. Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008), 201.
166. Gage, The Day Wall Street Exploded, 127. See also Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: Norton, 1979).
167. McCoy, Policing America’s Empire, 39.
168. Gage, The Day Wall Street Exploded, 112. As Michael Kazin writes, by 1918 “it was getting hard to tell the difference between ‘seditious speech’ and the sort of grievances Americans had normally voiced about public authorities without risking a felony indictment.” To express displeasure with war “had become a perilous act—for avowed radicals and ordinary citizens alike.” War against War: The American Fight for Peace, 1914–1918 (New York: Simon & Schuster, 2017), 245. See also Kennedy, Over Here: The First World War and American Society, 43–92; David Rabban, Free Speech in Its Forgotten Years (Cambridge: Cambridge University Press, 1997), 248–341; and Murphy, World War I and the Origin of Civil Liberties.
169. Mark Ellis, Race, War and Surveillance: African Americans and the United States Government during World War I (Bloomington: Indiana University Press, 2001), xvi; on the monitoring of equal rights activities specifically, see pp. 101–140. He notes that the Wilson administration was content to defer to the views of the white South. For Wilson’s racial policies within the federal government and civil service, see Eric S. Yellin, Racism in the Nation’s Service: Government and the Color Line in Woodrow Wilson’s America (Chapel Hill: University of North Carolina Press, 2013).
170. Writes Mark Ellis, “One of the most striking features of day-to-day reports on racial matters by domestic intelligence agents across the United States was how little insight they yielded about their subjects.” Race, War, and Surveillance, 228–230.
171. Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (New York: W. W. Norton, 2016), 221, 199. She notes that, unevenly enforced, Prohibition subjected less privileged Americans to high levels of scrutiny. Law enforcement agents’ attention to home distilleries rather than upscale speakeasies, for example, meant that “as never before in U.S. history … the government invaded private homes, mostly of poorer citizens, in a widespread, systematic, and coercive campaign,” 71, 89. See also Wesley M. Oliver, The Prohibition Era and Policing: A Legacy of Misregulation (Nashville: Vanderbilt University Press, 2018) on criticisms of police misconduct that were both triggered and limited by Prohibition.
172. Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Viking, 1987); Rabban, Free Speech in Its Forgotten Years; Murphy, World War I and the Origin of Civil Liberties; Capozzola, Uncle Sam Wants You, 144–172 (see especially his discussion of the shift in the standard from “responsible” to free speech as a result of the war).
173. See Cole, Suspect Identities, 32–59.
174. Cole, Suspect Identities, 2. Lawrence M. Friedman notes that the “culture of mobility and the culture of criminal justice were deeply intertwined” in the late nineteenth century, prompting a new corps of professionals: “police, detectives, prison officials, medical examiners, forensic scientists, and, in general, a growing army of criminal justice workers.” Crime and Punishment in American History (New York: Basic Books, 1993), 209.
175. Cole, Suspect Identities, 3, 119–120, 197. J. Edgar Hoover, not surprisingly, would seize on universal fingerprinting as “the key to a national web of individualized surveillance, under his personal control,” 247.
176. Robert L. Duffus, “U.S. Builds Greatest Fingerprint Bureau,” New York Times, August 24, 1924, p. XX7.
177. “Fingerprints Cause Strike: Cleveland Chauffeurs Object to Requirement in New Law,” New York Times, May 27, 1920, p. 4. Christian Parenti discusses citizens’ resistance to being fingerprinted in The Soft Cage: Surveillance in America: From Slavery to the War on Terror (New York: Basic Books, 2003), 43–60.
178. Henry Fitzgerald, Letter to the Editor, New York Times, October 7, 1922.
179. Gurstein, Repeal of Reticence, 152; Glass, Authors, Inc., 11.
180. Bratman, “Brandeis and Warren’s ‘The Right to Privacy.’ ”
181. Seipp, “The Right to Privacy in American History,” 85. He argues that the “right to privacy” language was, however, popularized by Godkin in 1890.
182. See, for example, Schulman v. Whitaker, 117 La. (1906).
183. Warren and Brandeis, “The Right to Privacy,” 214.
1. “Wiretapping Held Legal,” Literary Digest 97 (June 16, 1928): 10.
2. Olmstead v. United States, 277 U.S. 438 (1928).
3. For the classic work, see Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982).
4. Robert L. Floyd, “Privacy,” Chicago Daily Tribune, September 27, 1925, p. 8.
5. See Jonathan Levy, Freaks of Fortune: The Emerging World of Capitalism and Risk in America (Cambridge, MA: Harvard University Press, 2012); Dan Bouk, How Our Days Became Numbered: Risk and the Rise of the Statistical Individual (Chicago: University of Chicago Press, 2015); and Josh Lauer, Creditworthy: A History of Consumer Surveillance and Financial Identity in America (New York: Columbia University Press, 2017). The first full-fledged credit card, the Diners Club, appeared in 1949. Lizabeth Cohen, A Consumers’ Republic: The Politics of Mass Consumption in Postwar America (New York: Alfred A. Knopf, 2003), 124.
6. Lisa McGirr has recently argued for the recognition of Prohibition in 1919–1928 as the “greatest expansion of state building, outside of wartime, since Reconstruction” up to that point in American history. She calls the growth of the state’s law enforcement and punitive capacities the “less-examined side of state building,” overshadowed by public works and social provisioning. The War on Alcohol: Prohibition and the Rise of the American State (New York: W. W. Norton, 2016), 192.
7. David Graeber, The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy (Brooklyn: Melville House, 2015), 13–14.
8. James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011), 6. Sparrow estimates that government expenditures quadrupled their 1930s levels during World War II, with “changes in government … touching nearly every American”: upward of 85 million held bonds, 42 million paid income tax, 17 million labored in war-related industries, and 16 million served in the armed forces. By comparison, New Deal emergency programs reached 28.6 million recipients. For accounts of state growth in this era see also Gary Gerstle, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton, NJ: Princeton University Press, 2016), 185–274; and Anne Kornhauser, Debating the American State: Liberal Anxieties and the New Leviathan, 1930–1970 (Philadelphia: University of Pennsylvania Press, 2015).
9. James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), 9.
10. The Social Security Act established three separate programs, two to be administered by the states (Old Age Assistance and Unemployment Compensation) and one to be administered by the federal government (Old Age Benefits). Histories of the act include Edwin E. Witte, The Development of the Social Security Act (Madison: University of Wisconsin Press, 1963); Charles McKinley and Robert W. Frase, Launching Social Security: A Capture-and-Record Account 1935–1937 (Madison: University of Wisconsin Press, 1970); Arthur J. Altmeyer, The Formative Years of Social Security (Madison: University of Wisconsin Press, 1966); Martha Derthick, Policymaking for Social Security (Washington, DC: Brookings Institution Press, 1979); Edward D. Berkowitz, Mr. Social Security: The Life of Wilbur Cohen (Lawrence: University Press of Kansas, 1995); and Edward D. Berkowitz, Robert Ball and the Politics of Social Security (Madison: University of Wisconsin Press, 2003).
11. Jennifer Klein argues that grassroots movements and New Dealers alike “generated an ideology of security” in the mid-1930s, making security “an essential goal in the task of national reconstruction.” For All These Rights: Business, Labor, and the Shaping of America’s Public-Private Welfare State (Princeton, NJ: Princeton University Press, 2003), 78–79.
12. Most notably, the final legislation cast a hoped-for health insurance provision aside. The 1965 Amendments to the Social Security Act finally launched Medicare. The 1972 Amendments made provision for Supplemental Security Income (SSI) federal benefits for the aged, blind, and disabled with limited income and resources. On the decades-long attempt to create a federal provision for health care, see Paul Starr, Remedy and Reaction: The Peculiar American Struggle over Health Care Reform (New Haven, CT: Yale University Press, 2011), especially pp. 27–50.
13. Social Security Board, Why Social Security? (Washington, DC: Government Printing Office, 1937). Surveys indicate that support for old-age assistance and insurance was especially high across all segments of the population, with support at 68 percent of those polled in 1936 and an astounding 96 percent in 1944. A 1937 poll indicated that “opposition to Social Security seems to be the programs [sic] shortcomings—not to Government-provided pensions in principle.” Sally Sherman, “Public Attitudes toward Social Security,” Social Security Bulletin 52: 12 (December 1989): 3. For a compilation of public opinion data on the program in its first three decades, see Michael E. Schiltz, Public Attitudes toward Social Security 1935–1965 (Research Report No. 33), Office of Research and Statistics (Baltimore: Social Security Administration, 1970).
14. See, for example, Jill Quadagno, “Welfare Capitalism and the Social Security Act of 1935,” American Sociological Review 49: 5 (1984): 632–647; Lizabeth Cohen, Making a New Deal: Industrial Workers in Chicago, 1919–1939 (New York: Cambridge University Press, 1990); Edward D. Berkowitz, America’s Welfare State: From Roosevelt to Reagan (Baltimore: Johns Hopkins University Press, 1991); Edward D. Berkowitz and Kim McQuaid, Creating the Welfare State: The Political Economy of Twentieth-Century Reform, rev. ed. (Lawrence: University Press of Kansas, 1992); Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap Press of Harvard University Press, 1998); Jacob S. Hacker, Divided Welfare State: The Battle over Public and Private Social Benefits in the United States (New York: Cambridge University Press, 2002); Klein, For All These Rights; G. William Domhoff and Michael J. Webber, Class and Power in the New Deal: Corporate Moderates, Southern Democrats, and the Liberal-Labor Coalition (Stanford, CA: Stanford University Press, 2011), 142–186; and Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (Chicago: University of Chicago Press, 2013).
15. Weare Holbrook, “Unmistaken Identity,” Atlanta Constitution, November 15, 1942, p. 11.
16. Holbrook, “Unmistaken Identity,” 11.
17. Sophonisba P. Breckinridge, “Home Economics and the Quest for Economic Security,” Journal of Home Economics 27: 8 (October 1935): 491.
18. Lisa Gitelman, borrowing from Michel de Certeau, writes of an “ever growing, ever more intricate scriptural economy … harnessed to the interests of officialdom” in Paper Knowledge: Toward a Media History of Documents (Durham, NC: Duke University Press, 2014), ix–x. For accounts of how documentation works (and doesn’t), see Annelise Riles, ed., Documents: Artifacts of Modern Knowledge (Ann Arbor: University of Michigan Press, 2006); Cornelia Vismann, Files: Law and Media Technology, trans. Geoffrey Winthrop-Young (Stanford, CA: Stanford University Press, 2008); Ben Kafka, The Demon of Writing: Powers and Failures of Paperwork (New York: Zone Books, 2012); Jane Caplan and John Torpey, eds., Documenting Individual Identity: The Development of State Practices in the Modern World (Princeton, NJ: Princeton University Press, 2001); Simon Szreter and Keith Breckenridge, eds., Registration and Recognition: Documenting the Person in World History (Oxford: Oxford University Press, 2012); and Ilsen About, James Brown, and Gayle Lonergan, eds., Identification and Registration Practices in Transnational Perspective: People, Papers and Practices (New York: Palgrave Macmillan, 2013).
19. Legibility, as Scott defines it, is a central tool of modern statecraft; he uses it to refer to state attempts to organize both land and population, dramatically simplifying them in order to facilitate the “classic state functions of taxation, conscription, and prevention of rebellion.” James C. Scott, Seeing like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, CT: Yale University Press, 1998), 2. The same insight is the starting premise of recent studies of biopolitics and governmentality inspired by the work of Michel Foucault.
20. I borrow this language from Szreter and Breckenridge, Registration and Recognition, who regard recognition and registration as the “infrastructure of personhood” in modern states.
21. On quantification, see Theodore M. Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton, NJ: Princeton University Press, 1995). On mapping, see Susan Schulten, Mapping the Nation: History and Cartography in Nineteenth-Century America (Chicago: University of Chicago Press, 2012).
22. Ben Kafka has argued that “paperwork” is as much frustrating and destabilizing as it is productive of bureaucratic order. As he notes, scholars have had considerable trouble reconciling “our theories of the state’s power with our experience of its failure.” The Demon of Writing, 11.
23. Scott, Seeing like a State; Andrea Rusnock, Vital Accounts: Quantifying Health and Population in Eighteenth-Century England and France (Cambridge: Cambridge University Press, 2002, 2008); Libby Schweber, Disciplining Statistics: Demography and Vital Statistics in France and England, 1830–1885 (Durham, NC: Duke University Press, 2006); Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton, NJ: Princeton University Press, 2004); Adam McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (New York: Columbia University Press, 2008). The history of documentary technologies and their politics is told most soberingly in Edwin Black’s IBM and the Holocaust: The Strategic Alliance between Nazi Germany and America’s Most Powerful Corporation (New York: Crown Publishers, 2001). He notes in particular the importance of IBM’s alphabetizer machine, introduced in 1934 and perfected “in conjunction with the Social Security Administration.” See his Nazi Nexus: America’s Corporate Connections to Hitler’s Holocaust (Washington, DC: Dialog Press, 2009), 138–139.
24. Matt Matsuda, The Memory of the Modern (New York: Oxford University Press, 1996), 121–142.
25. The arrival of a “regime of verification,” exemplified by the Passport Control Act of 1918, meant that “documents verified documents,” permitting the state to bypass “the individual opinions or memories of its subjects.” Craig Robertson, The Passport in America: The History of a Document (New York: Oxford University Press, 2011), 212.
26. Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War (New York: Vintage Books, 2008), 212–213, 101.
27. Michael Kazin, War against War: The American Fight for Peace, 1914–1918 (New York: Simon and Schuster, 2017), 210–211; Jeanette Keith, Rich Man’s War, Poor Man’s Fight: Race, Class, and Power in the Rural South during the First World War (Chapel Hill: University of North Carolina Press, 2004), 159.
28. Susan J. Pearson, “ ‘Age Ought to Be a Fact’: The Campaign against Child Labor and the Rise of the Birth Certificate,” Journal of American History 101: 4 (March 2015): 1144–1165. For the fullest account, see Shane Landrum, “The State’s Big Family Bible: Birth Certificates, Personal Identity, and Citizenship in the United States, 1840–1950” (PhD diss., Brandeis University, 2014). The coordinated effort to register births began in the mid-nineteenth century with an array of goals: lowering infant mortality, ending child labor, ensuring compulsory education, and barring interracial mixing. It was helped along by Congress, which in 1903 encouraged states to adopt the Model Law for Vital Statistics “to extend the benefits of registration and to promote its efficiency,” and became a cause for women’s voluntary groups thereafter. Birth certificates by the 1920s would be a local and state-administered program coordinated by the U.S. Children’s Bureau. By 1933, officials estimated that 90 percent of every year’s infant births were recorded. Landrum, “The State’s Big Family Bible,” 92, 15, 19.
29. Landrum notes that in this new context, some New York City youths desperate for working papers began to claim they had been born in Passaic, New Jersey, where a courthouse fire had destroyed all records. “The State’s Big Family Bible,” 51. See also Shane Landrum, “From Family Bibles to Birth Certificates: Young People, Proof of Age, and American Political Cultures, 1820–1915,” in Age in America: The Colonial Era to the Present, ed. Corinne T. Field and Nicholas L. Syrett (New York: New York University Press, 2015), 124–147.
30. Landrum, “The State’s Big Family Bible,” 51.
31. “Birth Certificate’s Use,” New York Times, June 8, 1930, p. 87.
32. Landrum, “The State’s Big Family Bible,” 184, 223. On the problem of lacking identification documents from the perspective of the black press, see “Carry Identification Card,” Chicago Defender, August 18, 1917, p. 6.
33. “Security Board Accepts Bibles as Proof of Age,” Atlanta Constitution, March 22, 1939, p. 7; Landrum, “The State’s Big Family Bible,” 160–182.
34. In the late 1910s and early 1920s, enthusiasm for civilian applications increased, such as fingerprinting schoolchildren and facilitating identity in the case of kidnapping or amnesia. Simon Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard University Press, 2001), 197–198.
35. See for example, the Miami ordinance requiring the fingerprinting of employees of restaurants and hotels, which was “generally conceded to have been primarily designed to force Race people out” of those well-paying jobs. “Repeal Despised Fingerprint Law in Miami, Florida,” Chicago Defender, May 15, 1937, p. 2.
36. The main professional society changed its name from the International Association of Criminal Identification to the International Association for Identification in an attempt to erase the “criminal stigma.” See Cole, Suspect Identities, 196; on various states’ efforts around mandatory fingerprinting in the late 1920s and 1930s, see 247–248. “Fingerprint Everybody,” New York Herald Tribune, February 5, 1930, p. 18; “Finger Print Records,” Washington Post, July 29, 1931, p. 6; Richard C. Patterson, “Use of Fingerprints Now Widely Extended,” New York Times, April 3, 1932, p. XX5; “Fingerprinting U.S.,” New York Herald Tribune, August 31, 1933, p. 20; and Mary E. Hamilton, “Identify Yourself: Everyone Should Be Fingerprinted, Says This Expert,” New York Herald Tribune, October 1, 1933, p. SM3. In Massachusetts in 1934, for example, the State Bureau of Investigation “invited” all residents to file a fingerprint record, in order “to aid people who are the victims of amnesia or accidents, or for children who have become lost.” “Massachusetts Trying to Fingerprint Citizens,” New York Herald Tribune, August 14, 1934, p. 8. A general who supported the fingerprinting of children was less politic: “We must consider that from the children of today will come the criminals of tomorrow.” “Fingerprint School Children, Says Needham,” Daily Boston Globe, March 18, 1934, p. B1.
37. The American Legion aspired to identification cards complete with both photographs and fingerprints. “To Finger-Print Everybody,” Los Angeles Times, August 19, 1934, p. 10. See also C. M. Barron, “Voluntary Fingerprinting: Federal Agency for That Purpose Is Suggested,” New York Herald Tribune, October 17, 1933, p. 16.
38. “May Fingerprint Everyone,” Daily Boston Globe, November 25, 1934, p. A17.
39. Before this, the State Department had treated U.S. passports as a certificate of citizenship for travelers abroad, a “travel document.” They were not used in entry or departure along the national border, a matter left to individual states until the 1870s and then handed over to customs and immigration officials, who again did not rely on the passport. See Robertson, The Passport in America, 160; John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (New York: Cambridge University Press, 2000), 93–121; and John Torpey, “The Great War and the Birth of the Modern Passport System,” in Documenting Individual Identity: The Development of State Practices in the Modern World, ed. Jane Caplan and John Torpey (Princeton, NJ: Princeton University Press, 2001), 256–270.
40. Robertson, The Passport in America, 160–161. See also Amy L. Fairchild, Science at the Borders: Immigrant Medical Inspection and the Shaping of the Modern Industrial Labor Force (Baltimore: Johns Hopkins University Press, 2003).
41. Craig Robertson, “Mechanisms of Exclusion: Historicizing the Archive and the Passport,” in Archive Stories: Facts, Fictions, and the Writing of History, ed. Antoinette Burton (Durham, NC: Duke University Press, 2005), 81. See Kenneth L. Roberts, “Trial by Travel,” Saturday Evening Post 93 (September 4, 1920): 10; and “Passports Passé,” Nation 112 (January 19, 1921): 75.
42. Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008), 202.
43. See Larry DeWitt, Daniel Béland, and Edward D. Berkowitz, Social Security: A Documentary History (Washington, DC: CQ Press, 2008), 4. Also excluded were seamen, federal and state employees, and employees of religious and charitable organizations. Not until 1950 was the act amended to extend coverage to self-employed farmers and workers in a number of other professions, including domestic employees, bringing coverage to about three-quarters of the workforce. The best recent account of Southern Democrats’ shaping of the New Deal in order to protect traditional racial hierarchies is Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2013). Mary Poole, in The Segregated Origins of Social Security: African Americans and the Welfare State (Chapel Hill: University of North Carolina Press, 2006), argues that the racialized nature of welfare was a product of both liberals’ and conservatives’ interest in preserving a hierarchy of white over black workers.
44. Birchard E. Wyatt and William H. Wandel, The Social Security Act in Operation: A Practical Guide to the Federal and Federal-State Social Security Programs (Washington, DC: Graphic Arts Press, 1937), 51. Veterans’ pensions and the World War I draft were the two most common comparisons that contemporaries made to the enrollment effort. On the role of veterans’ pensions in shaping the U.S. welfare state, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press of Harvard University Press, 1992). Drew Gilpin Faust notes that the creation of a pension system for Union veterans was a challenging task, given the fact that there was “no coherent personnel record for any individual soldier … to support a pension claim.” It led to the creation of the Compiled Military Service Records, the scale of which led to “the overcrowding of workers and documents” in Ford’s Theatre, causing “two floors to collapse and kill twenty-two employees” in 1893. This Republic of Suffering, 255–256.
45. Paul Schor, Counting Americans: How the US Census Classified the Nation, trans. Lys Ann Weiss (New York: Oxford University Press, 2017). On the transformation of the United States’ patchwork of “indirect, hidden, disaggregated, and partisan import duties and regressive excise taxes” into “a direct, transparent, centralized and professionally administered, graduated tax system,” see Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929 (New York: Cambridge University Press, 2013); quote on p. 6. Julian E. Zelizer’s Taxing America: Wilbur D. Mills, Congress, and the State, 1945–1975 (New York: Cambridge University Press, 1998) picks up that story in the 1940s.
46. See, for example, Arthur Sears Henning, “Whole Nation Ready for Call to Arms Today,” Chicago Daily Tribune, June 5, 1917, p. 2. The New York Times reported that the draft “machinery” was ready to “take the military census in the shortest time ever allowed for such a huge undertaking—one twelve-hour day.” “Preparations for Draft Move Swiftly; 42 States Already Have Their Machinery Organized,” New York Times, May 21, 1917, p. 1.
47. “Men Newly Twenty-One Must Register Today,” Los Angeles Times, June 5, 1918, p. II1.
48. In fact, by June 1937, the Bureau had received about 30.3 million applications for SSNs, and a total of 35 million were enrolled in the first eight months of registration. Oscar C. Pogge, “After Fifteen Years: A Report on Old-Age and Survivors Insurance,” Social Security Bulletin 15: 1 (1952): 5.
49. McKinley and Frase, Launching Social Security, 320.
50. For the dense transatlantic traffic of social reform, and the borrowing of European social insurance schemes in particular, see Rodgers, Atlantic Crossings, 409–484. The primary international experts were Pierre Tixier, Chief of the Social Insurance Section of the International Labor Office in Geneva, Switzerland, and Ronald Davidson and Ethel Foster, a retired official and staff member, respectively, of the British Ministry of Labour. McKinley and Frase, Launching Social Security, 20–21.
51. Wyatt and Wandel, The Social Security Act in Operation, 45.
52. McKinley and Frase, Launching Social Security, 313–317.
53. Wyatt and Wandel, The Social Security Act in Operation, 46. As Simon Cole reveals in Suspect Identities, such an assessment overstated considerably the reliability of fingerprints as a means of accurate identification.
54. Wyatt and Wandel, The Social Security Act in Operation, 47.
55. Pierre Tixier and R. C. Davison, “Suggestions on the Administration of the Social Security Act and State Unemployment Compensation Laws” (December 14, 1935 with note from May 12, 1938, explaining that the report was deemed no longer confidential), p. 8, Stanford Ross Papers, private collection of Stanford G. Ross, Commissioner of Social Security, 1978–1979.
56. U.S. Social Security Board, “Summary of Historical Outline of the Development of the Social Security Board Program of Establishing Employers’ Identification and Employees’ Accounts” (1942), p. 7, Folder: SSN-Numbering System Development, Carrier: 12, Social Security History Archives, Baltimore, Maryland [hereafter, SSHA, with F designating Folder and C the Carrier].
57. Tixier and Davison, “Suggestions on the Administration of the Social Security Act,” p. 6.
58. “Aldrich’s Views on Social Security Act,” New York Times, July 11, 1936, p. 26.
59. Minutes on “Assignment of Social Security Numbers,” Social Security Board Meeting, April 30, 1936, F: SSN-Initial Registration, C12, SSHA.
60. Memorandum from E. J. McCormack to Mr. H. P. Seidemann, “Use of the Word ENUMERATION,” July 6, 1936, F: SSN-Enumeration, C12, SSHA. Pierre Tixier apparently favored the word “matriculation,” but this was dismissed as “too academic and ‘braintrusty’ ”; “inventory” was also tested, but fell out of use. McKinley and Frase, Launching Social Security, 329.
61. “NOTICE: Deductions from Pay Start Jan. 1,” RNC-sponsored notice, F: SSN- Initial Registration 1935–1937, C12, SSHA. The SSB quickly distributed its own pamphlet, titled “Security in Your Old Age.” See “Falsehoods on Pay Envelopes,” New Republic (November 4, 1936): 6–7.
62. “ ‘Forgery’ Charged to Security Foes,” New York Times, November 3, 1936, p. 17.
63. “Here’s Proof of Deceit in Payroll Tax,” Boston Evening American, November 2, 1936, p. 1.
64. “Snooping-Tagging,” New York American, November 2, 1936; “Benefits of Security Act Called Only Dream,” Boston American, November 2, 1936; “ ‘Forgery’ Charged to Security Foes,” p. 17. Alfred Landon, FDR’s opponent in 1936, himself warned of “federal snooping.” This is from Landon’s speech of September 23, 1936; see Brian Balogh, “Securing Support: The Emergence of the Social Security Board as a Political Actor,” in Federal Social Policy: The Historical Dimension, ed. Donald T. Critchlow and Ellis Hawley (University Park: Pennsylvania State University Press, 1988), 66.
65. McKinley and Frase, Launching Social Security, 450–451. Intriguingly, by 1938 the ACLU was accusing antilabor and corporate forces, including the Hearst newspaper empire, of supporting fingerprinting as a mode of “general regimentation of the population”—the same charge that many of these conservative outfits had made about SSNs. American Civil Liberties Union, Thumbs Down! The Fingerprint Menace to Civil Liberties (New York, 1938).
66. “Here’s Proof of Deceit in Payroll Tax,” p. 1.
67. “Hamilton Shows Sample Tag for Workers’ Necks,” Chicago Daily Tribune, November 1, 1936, p. 5.
68. See the Law for the Restitution of the Professional Civil Service, of April 7, 1933. The Vokskartei or “Catalog of the People,” along with photo identity cards, would be instituted in 1939. Sybil Milton, “Registering Civilians and Aliens in the Second World War,” Jewish History 11: 2 (Fall 1997): 79–87; see pp. 79 and 81. Milton notes that Bavarian and Prussian laws of 1926 and 1927 had already mandated the fingerprinting and photographing of 8,000 “Gypsies,” 82. See also Götz Aly and Karl Heinz Roth, The Nazi Census: Identification and Control in the Third Reich, trans. Assenka Oksiloff (Philadelphia: Temple University Press, 2004).
69. Note the reference, for example, to the “Russian passport system” and the “Austrian police registration system” that “have long cumbered the free movements of individuals in Europe,” in an editorial opposed to U.S. identification cards. Stephen G. Rich, “Proposals Feared: Identification Systems Seen as Earnest of Worse Things,” New York Times, February 9, 1936, p. E9.
70. “Hamilton Predicts Tags for Workers,” New York Times, November 1, 1936, p. N5. “Hamilton Shows Sample Tag for Workers’ Necks,” p. 5. For Arthur Altmeyer’s account of this episode, see The Formative Years, 69. What came to be called dog tags were themselves still new in the 1930s, first worn by soldiers during World War I. See Faust, This Republic of Suffering, 103.
71. “Snooping-Tagging.”
72. “Benefits of Security Act Called Only Dream.”
73. “ ‘Dog Tag’ Workers May Have under Social Security Act,” Boston Herald, November 2, 1936; “ ‘Forgery’ Charged to Security Foes,” p. 17.
74. Indeed, it charged the RNC with fraudulent use of the name of the Board and turned over the campaign materials to the Department of Justice. “Acts to Prosecute on ‘Pay Cut’ Signs,” New York Times, October 29, 1936, p. 17.
75. “Social Security Form Condemned as ‘Fraud,’ ” New York Times, November 1, 1936, p. 29. The Board’s first chairman, John G. Winant, had already resigned in September so that he could reply to political attacks on Social Security.
76. “ ‘Forgery’ Charged to Security Foes,” p. 17. The spokesperson was Anna Rosenberg, regional director of the Social Security Board.
77. Elwood J. Way, “Development of the Account Number Card Issued by the Social Security Board Together with Notes on the Account Number and Alternative Plans Considered.” (November 27, 1941), p. 3, F: SSN-Numbering System Development, C12, SSHA.
78. Memorandum from O. J. Libert to E. J. Way on “Materials for Identification Purposes,” April 10, 1936, F: SSN-Enumeration, C12, SSHA.
79. McKinley and Frase, Launching Social Security, 329.
80. Memorandum from O. J. Libert to E. J. Way on “Materials for Identification Purposes” detailed the shortcomings even of strong paper as compared to a “metal product.” The SSB reportedly issued approximately 5,000 new replacement cards a day by 1938, triggering “a great deal of unnecessary extra clerical work” as well as introducing “a whole series of frauds.” “Little Help Seen in Job Insurance,” New York Times, June 20, 1938, p. 13.
81. Way, “Development of the Account Number Card”; Minutes on “Assignment of Social Security Numbers,” Social Security Board Meeting, April 30, 1936, F: SSN- Initial Registration, C12, SSHA.
82. Social Security’s advocates were still worrying about the dog tag story becoming “one of the ongoing myths of the program” in 1982. See D’Vera Cohn, “Early Social Security Plan Called for Dog Tags,” Pittsburgh Press, May 9, 1982; “Woodlawn Office Displays Social Security Memorabilia,” Baltimore Daily Record, May 17, 1982; and Letter from Robert J. Myers (Executive Director, National Commission on Social Security Reform) to Abe Bortz, June 1, 1982. All in F: Dog Tag, C8, SSHA. Daniel Patrick Moynihan, “A Counterfeit-Proof Social Security Card, Now,” Statement to the Senate, Congressional Record, August 4, 1990, p. S12460.
83. In fact, the Treasury Department issued regulations making the SSN mandatory on November 6, 1936. McKinley and Frase note that while the Board claimed that registration was voluntary, “it had been negotiating with the Treasury Department to induce that department to require employees and employers to secure account numbers under regulations carrying considerable penalities.” Launching Social Security, 346, 351–352, 360. In this, the SSB squares with scholars’ descriptions of the early twentieth-century U.S. government as an “improvisational hybrid state that reconciled its coercive and voluntarist elements by concealing the conflict between them.” Capozzola, Uncle Sam Wants You, 210–211.
84. Wyatt and Wandel, The Social Security Act in Operation, 45.
85. Social Security planners traded on Americans’ experience with life and group insurance, the “modern private benefits system” through which American employers met the welfare needs of their workers starting in the 1910s and 1920s. The SSB could point to companies such as the Equitable Life Assurance Society and Metropolitan Life, but also to industrial pension plans administered by labor unions and fraternal societies. Klein, For All These Rights, 10–11, 16–52, 53–77. On Americans’ familiarity with being numbered for life insurance policies beginning in the mid-nineteenth century, see Bouk, How Our Days Became Numbered.
86. On this point, see Altmeyer, The Formative Years, 70.
87. Kathleen S. Swendiman, “The Social Security Number: Legal Developments Affecting Its Collection, Disclosure and Confidentiality,” CRS Report for Congress, updated January 21, 2005, p. 2, n. 5. She notes that from 1946 to 1972, the legend “NOT FOR IDENTIFICATION” was printed on the face of the card, as a warning that no proof of identity was required to obtain it. “However, the legend was largely ignored and was eventually dropped.”
88. Note by contrast the 1940 Smith Act (Alien Registration Act) requirement that all aliens be registered and fingerprinted.
89. Wyatt and Wandel, The Social Security Act in Operation, 48.
90. “Old-Age Benefits Enumeration,” Social Security Bulletin (September–December 1936), F: SSN-Enumeration, p. 42, C12, SSHA.
91. Part I, Sec. 808, Art. 3, 5 of the Social Security Act.
92. Edward Higgs applies this term to modern states that not merely undertake surveillance—a function of all states—but would “cease to function” without the capacity to collect and manipulate information on private citizens. The Information State in England: The Central Collection of Information on Citizens since 1500 (New York: Palgrave Macmillan, 2004), vii; “The Rise of the Information State: The Development of Central State Surveillance of the Citizen in England, 1500–2000,” Historical Sociology 14: 2 (June 2001): 175–197.
93. “Historical Summary of Rules, Regulations and Provisions of the Law Relating to Disclosure of OASI Information,” undated, F: Confidentiality, C7, SSHA.
94. Memorandum from Executive Committee of the Committee on Assignment of Social Security Account Numbers to the Board, May 5, 1936, F: SSN-Enumeration, C12, SSHA. The Board acknowledged “rare cases” where the applicant did not know the facts regarding his or her parents or date of birth and recommended in those instances supplementing the usual SS-5 form with “a signed photograph, orphans’ home record, or endorsement, that might help to identify the person as the one on whose account a benefit might later be paid.” See Social Security Board, Bureau of Federal Old-Age Benefits, Enumeration Manual, July 1, 1937, p. 20, F: Enumeration-Manual, C8, SSHA. In 1940, several new pieces of information were requested on the application form, including marital status, the closing date of the last full-time job, and the prior occupation and industry of the worker—all for the purpose of gathering “statistical data”—but these were all omitted in a 1941 revision, the change having proved “unsuccessful.” Memo from T. A. McDonald, Assistant Chief, Accounting Operations Division to All Returned Employees, “Accounting Operations Division Procedural Changes,” May 14, 1946, p. 2, F: SSN-Process, C12, SSHA; U.S. Social Security Board, “Summary of Historical Outline of the Development of the Social Security Board Program of Establishing Employers’ Identification and Employees’ Accounts” (1942), p. 1, F: SSN-Numbering System Development, C12, SSHA.
95. Memorandum from E. J. Way to Executive Director, “Proposed letter to be sent to trade associations—Social Security Account Numbers reference made,” April 28, 1936, F: SSN-Enumeration, C12, SSHA. McKinley and Frase note that race was included for “both identification and actuarial purposes” and that most of the debate over its inclusion was about whether to use the word “race” or “color” on the forms; the SSB opted for the latter. Launching Social Security, 326. For uses of race in actuarial tables and census taking in the 1930s, see Bouk, How Our Days Became Numbered, 41–48, and Schor, Counting Americans, 209, 215, 303 n. 16.
96. “Government Will Take First Steps Today to Enroll Workers,” Washington Post, November 16, 1936, p. X1.
97. McKinley and Frase, Launching Social Security, 339.
98. “Running Record of Board Meeting,” November 20, 1936, 2:45pm, F: SSN-Enumeration, C12, SSHA.
99. The Mennonite Board of Missions, for example, was willing for its members to pay Social Security taxes, but not to accept the old-age pensions when they became due; “Social Service: Pensioners,” Time (December 14, 1936). See the brief note about other protests in Social Security Board, Bureau of Federal Old-Age Benefits, Enumeration Manual, July 1, 1937, p. 20, F: Enumeration-Manual, C8, SSHA. Other religious objectors cited the biblical lesson of God’s punishment when King David planned to number his people, Chronicles 27:4.
100. “Insulting Our Intelligence,” Pittsburgh Courier, December 5, 1936, p. 12. The writer scoffed at the explanation, given by a Social Security information officer, that the requirement was put in place to distinguish among applicants with the same name.
101. He continued, “It will be used to penalize us in a thousand ways, just as the photographs attached to civil service applications are used to penalize us today.” S. Schuyler, “Views and Reviews,” Pittsburgh Courier, December 26, 1936, p. 10.
102. Winston Smith, “Social Security Act, Taking in All Races, Explained by Writer, as Post Office Starts Sending out Blanks,” New York Amsterdam News, November 14, 1936, p. 15.
103. “Running Record of Board Meeting,” Friday, November 20, 1936, 2:45pm, F: SSN-Enumeration, C12, SSHA.
104. The study was Claris Edwin Silcox and Galen M. Fisher’s Catholics, Jews and Protestants: A Study of Relationships in the United States and Canada (Westport, CT: Greenwood Press, 1934). As Kevin Schultz writes of the interwar years, “employment agencies said they found it necessary to secure information concerning an applicant’s religion before they sent an applicant to an interview, fearing that a Catholic or Jewish applicant would not have a chance to secure employment at a Protestant-dominated firm.” Tri-Faith America: How Catholics and Jews Held Postwar America to its Protestant Promise (New York: Oxford University Press, 2011), 23. See also David Sehat, The Myth of American Religious Freedom (New York: Oxford University Press, 2011).
105. Altmeyer, The Formative Years, 50–51.
106. Frederick Lane, American Privacy: The 400-Year History of Our Most Contested Right (Boston: Beacon Press, 2009), 110.
107. Susan Ware, Holding Their Own: American Women in the 1930s (Boston: Twayne, 1982).
108. For an argument about disclosure of age as an invasion of privacy, particularly for women (and women workers), see Della T. Lutes, “Why I Don’t Tell My Age,” Forum and Century 97: 4 (April 1937): 244. There were contemporary proposals to remove age information from passports; see Charles S. Taylor, “Passport Data,” New York Times, June 1, 1934, p. 22.
109. The “Fibbers,” “Your Age, Madam,” Chicago Daily Tribune, November 30, 1936, p. 8. The SSB’s answer was that the account holder’s information would not in that case be disclosed.
110. “Social Security Board Firm in Guarding Secrets of Files,” Washington Evening Star, April 29, 1937, p. B14. In fact during early discussions of the format of the SSN, “many persons voiced serious objections” to a number that revealed birth year, “since it gave the employer or prospective employer knowledge of the age of the individual.” Way, “Development of the Account Number Card.”
111. “Historical Summary of Rules, Regulations and Provisions of the Law Relating to Disclosure of OASI Information.” See also historical section of Social Security Administration, “Confidentiality of Information Contained in Old-Age, Survivors, Disability and Heath Insurance Records,” February 2 1971, p. 3, F: Confidentiality (Privacy-F1), C7, SSHA.
112. Stephen Meyer, The Five Dollar Day: Labor Management and Social Control in the Ford Motor Company, 1908–1921 (Albany: State University of New York Press, 1981); Jacquelyn Dowd Hall, “Private Eyes, Public Women: Images of Class and Sex in the Urban South, Atlanta, Georgia, 1913–1915,” in Work Engendered: Toward a New History of American Labor, ed. Ava Baron (Ithaca, NY: Cornell University Press, 1991), 243–272; and Charles Hyde, “Undercover and Underground: Labor Spies and Mine Management in the Early Twentieth Century,” Business History Review 60 (1986): 1–27. See also Leo Huberman, The Labor Spy Racket (New York: Modern Age Books, 1937), which was based on hearings before the Subcommittee of the Committee on Education and Labor of the United States Senate, also known as the La Follette Civil Liberties Committee.
113. See Social Security Board, “Survey Relative to Requests for Information from the Confidential Board Files,” January 1938, F: Confidentiality, C7, SSHA.
114. “Government Will Take First Steps Today to Enroll Workers.” The Board discussed options for reassuring employees, including having the Treasury state that it would not accept returns from employers where there was “any evidence of coercion.” One possibility the board weighed was advising employees that “anything they put on the card they turn into the employer is their own business and in those cases where the employers are violating the regulations, they should put such information they wish on that return which goes to him and then write in to the Board in Washington giving the correct information and getting it straightened out.” “Running Record of Board Meeting,” November 20, 1936, 2:45pm, F: SSN-Enumeration, C12, SSHA.
115. Regulation No. 1: Disclosure of Official Records and Information was adopted by the Board in June 1937. When Congress amended the Social Security Act 1939, it implemented Section 1106, which provided that “information could not be divulged except as the Board by regulation prescribed.”
116. McKinley and Frase, Launching Social Security, 451–452.
117. “Time Is Extended on Security Form,” New York Times, December 6, 1936, p. 3.
118. Anna M. Rosenberg, regional director of the Social Security Board, is quoted in “Time Is Extended on Security Form,” p. 3. The New York Times reported that investigation “substantiated these complaints in the cases of more than fifty concerns.”
119. Wyatt and Wandel, The Social Security Act in Operation, 57.
120. “Confidential,” Chicago Daily Tribune, November 15, 1940, p. 28.
121. Unfortunately, the Social Security Board did not retain letters from the public.
122. McKinley and Frase, Launching Social Security, 326. They point out, however, that the U.S. Employment Service had previously used “all the items objected to by the state administrators” and “coded union and religious affiliations as well.” Regarding the latter, “the Employment Service took the position that it was better to send the employer people he wanted rather than to let an employee begin a job and then be fired because of religious prejudice.” As for the inclusion of age and union affiliation, “there had been no protest from the labor unions.”
123. United Automobile Workers of America, Proceedings of the Second Biennial Convention of the International Union (1941), vols. 2–4, pp. 55–56.
124. Social Security Board, “Survey Relative to Requests for Information from the Confidential Board Files.”
125. “Social Security Board Firm in Guarding Secrets of Files,” p. B14.
126. Social Security Board, “Survey Relative to Requests for Information from the Confidential Board Files.” A few months into this policy, the Board rescinded its policy of forwarding such inquiries, instead advising all inquirers “of the confidential nature of its records.”
127. The Billboard, June 12, 1943, p. 36.
128. “Lost: One Wife; Clue: Her Social Security Figure,” Atlanta Constitution, January 7, 1940, p. 11A. See also “Girl Student, 16, Missing for Four Days,” Washington Post, June 27, 1942, p. 17, which noted not the actual number but the fact that the girl had a Social Security card in her billfold as an identifying detail.
129. “Looking for Someone?” Baltimore Afro-American, February 3, 1940, p. 10.
130. “Courier Missing Persons Bureau” (entry for Taylor, Nathaniel Edward), Pittsburgh Courier, January 28, 1950, p. 26. A similar entry appears for another man the previous spring, April 16, 1949.
131. “Didn’t Want to Lose Picture of His Girl,” Pittsburgh Courier, January 27, 1940, p. 12.
132. See, for example, Memorandum from Oscar M. Powell and John J. Corson to the Board re: “Revision of Regulation No. 1 to Permit Closer Cooperation with Other Government Agencies,” July 9, 1940, F: Confidentiality, C7, SSHA.
133. This was Executive Order 9397, “Numbering System for Federal Accounts Relating to Individual Persons,” 8 Fed. Reg. 16095–16097, 3 C.F.R. (1943–1948 Comp.) 283–84 (1943). The specific agencies mentioned in the discussions leading up to the Executive Order were the Bureau of Internal Revenue of the Treasury Department, the Railroad Retirement Board, and the Civil Service Commission. It would not be until the 1960s that federal agencies began to employ the SSN as a general identifier in other contexts. See Swendiman, “The Social Security Number,” p. 2.
134. Philippa Strum, Privacy: The Debate in the United States since 1945 (New York: Harcourt Brace, 1998), 46–47.
135. Notes from Meeting of the Board, March 9, 1937 (dated March 11), F: Confidentiality, C7, SSHA.
136. Social Security Board, “Survey Relative to Requests for Information from the Confidential Board Files.” The Board seems to have responded to such requests inconsistently in 1937, sometimes supplying the information, sometimes not.
137. Notes from Meeting of the Board, November 16, 1937 (dated November 19), F: Confidentiality, C7, SSHA.
138. Notes from Meeting of the Board, November 4, 1937 (dated November 6), F: Confidentiality, C7, SSHA.
139. Notes from Meeting of the Board, June 29, 1937 (dated July 1), F: Confidentiality, C7, SSHA. “The Board considered and approved a letter of reply to the Attorney General … advising him that because of previous pledges, the Board is estopped from complying with his request.”
140. Running Record of Board Meeting, February 23, 1937, 11:15am, F: Confidentiality, C7, SSHA.
141. “Social Security Board Firm in Guarding Secrets of Files,” p. B14.
142. Memo from John J. Corson to Oscar M. Powell re: “Disclosure of Confidential Information: For the Consideration of the Board,” June 28, 1943, F: Confidentiality, C7, SSHA.
143. “Social Security Board Minutes,” July 20, 1943, F: Confidentiality, C7, SSHA.
144. Altmeyer, The Formative Years, 70. He stated, “This pledge of confidentiality has been kept throughout the years, the only exceptions having been a very few cases involving person suspected of espionage or sabotage.” What this obscured was the expanded definition of those terms during the Cold War.
145. See, for example, correspondence about a Petersburg, Virginia, draft board request for the SSN of a draftee; John J. Corson to V. D. Herbert re: “Social Security Account Number for John Mumford Richardson,” December 21, 1940, F: Confidentiality, C7, SSHA. This request was refused.
146. See “Board Minutes” (re: “Disclosing the Existence of a ‘Missing Person’ to Claimant”), June 22, 1943, F: Confidentiality, C7, SSHA. Interestingly, there were complaints by the late 1950s of the SSA supplying information of this sort (a Cleveland, Ohio, man presumed dead but who had current wage earnings) to the Veterans Administration but not the abandoned family members. See Congressman Charles A. Vanik to Arthur Flemming, Secretary of Health, Education and Welfare, October 14, 1958, F: Confidentiality, C7, SSHA, who charged the SSA “in effect” with sheltering “many likely felons from apprehension, indictment and prosecution.”
147. The Board tried to make good on this by reversing course upon the “President’s declaration of cessation of hostilities,” giving notice to the Department of Justice and the War and Navy Departments that future requests of information would need to establish that “the case involved arose out of the existence of hostilities.” Memo from Perrin Lowrey, Memo on “Action Taken by the Commissioner,” January 7, 1947, F: Confidentiality, C7, SSHA. This was complicated, however, by the onset of the Korean War and then the ongoing Cold War.
148. O. C. Pogge to W. L. Mitchell, Memo on “Need for Revision of Regulation No. 1, Section 401.3(i)(4)—Disclosure of Information to Federal Bureau of Investigation,” February 18, 1952, F: Confidentiality, C7, SSHA. Here the question involved the near-simultaneous termination of World War II and the December 1950 proclamation of a national emergency during the Korean War: “In view of the proclamation and the current unsettled state of world affairs, the Bureau believes that authorization to disclose information … should be extended for the duration of the present national emergency.”
149. The Immigration and Nationality Act of 1952 required that the Attorney General be informed, “upon request,” whenever an alien was issued an SSN and that information as to identity and location of aliens be furnished when requested. See the debate over what this required of Social Security officials in the Memorandum of J. Lee Rankin, Assistant Attorney General, on “Information from Social-Security Records,” February 3, 1955, p. 2, F: Confidentiality, C7, SSHA. Rankin noted that “when the study of our immigration and nationality laws which culminated in the passage of the 1952 Act was undertaken, attention was early directed to the possibility of using social security files as a means to locate aliens illegally in this country.”
150. In this case, the answer was a firm “no”; see Memorandum from Victor Christgau to W. L. Mitchell re: “Request by the Department of Justice for Copies of Account Number Applications Cards or for Access to the Bureau Account Number Application Files,” October 19, 1959, F: Confidentiality, C7, SSHA.
151. Commissioner’s Action Minutes, May 3, 1954, F: Confidentiality, C7, SSHA. A “Request from Immigration and Naturalization Service for Information from our Records to Assist in Locating Certain Chinese Deserters” was granted because of “unusual circumstances” (the possibility that the Chinese had “effected illegal entry into the U.S. for purposes of sabotage or espionage”), but was “not to be considered as a precedent for the continuing program of cooperation between the Bureau of Old-Age and Survivors Insurance and the Immigration and Naturalization Service.”
152. This was J. Edgar Hoover’s rationale for gaining access to SSA files to track deserters from the Armed Services and violators of the Selective Service Act. He closed his request with the plea, “Without your assistance a heavy blow would be struck at our nation’s preparedness.” See Letter from Hoover to Charles I. Schottland, Commissioner, November 19, 1958, F: Confidentiality, C7, SSHA.
153. See, generally, F: Confidentiality, C7, SSHA.
154. See “Board, Bureau and Commissioner Decisions, Regulation 1–Disclosure,” F: Confidentiality, C7, SSHA. See also Notes from Meeting of the Board, November 30, 1937 (dated December 8) and Notes from Meeting of the Board, August 23, 1940 (dated August 28); both in F: Confidentiality, C7, SSHA. It was not until 1948 that the agency agreed that its information could be furnished to other government departments without the authorization of the interested party in the case of the theft, forgery, alteration, or destruction of a Social Security card. Minutes of Commissioner’s Meeting, re: “Proposed Changes in Regulation No. 1,” March 3, 1948, p. 8, and Commissioner’s Action Minutes, December 13, 1948, F: Confidentiality, C7, SSHA.
155. In 1937, the Board agreed that in cases where an individual died and was unidentified except for name or SSN and officials “can secure no other information from any other source,” it would make an exception to its general policy and supply a copy of Form SS-5. It cautioned against advertising this fact except in the form of a “confidential instruction” to SSB employees, since publicity “would motivate numerous requests and inquiries … with which the Board could not comply.” Minutes of the Meeting of the Board, April 27, 1937, F: Confidentiality, C7, SSHA. The policy on releasing confidential information from Form SS-5 was expanded a few months later to include “those who are insane or are suffering from amnesia.” Minutes of the Meeting of the Board, August 6, 1937 (dated August 12), F: Confidentiality, C7, SSHA. Agency discussions in the mid-1950s took up the question of sharing information in the wage record with the individuals or institutions responsible for institutionalized people or mental “incompetents.” See, for example, Commissioner’s Action Minutes, March 16, 1953, F: Confidentiality, C7, SSHA.
156. Memo from Victor Christgau to W. L. Mitchell re: “Disclosure of Information for Administration of Public Assistance Programs-Deserting Parents (NOLEO Amendment) in Case of Aid to Dependent Children-Support Responsibility of Relatives,” December 30, 1954, F: Confidentiality, C7, SSHA. The memo noted the steady uptick in such requests, with 14,073 in a seven-month period in 1954, and noted some “undesirable newspaper publicity” in which a state official disclosed “how he was able to locate and bring in the missing parent through use of old-age and survivors insurance records.” Other accounts suggested that these records were “now available not only for the purpose of locating deserting parents, but (erroneously) also for locating deserting spouses,” p. 6. See H.R. 2446, a bill to “amend the Social Security Act to provide that the Secretary of Health, Education, and Welfare shall, under certain circumstances, disclose the current addresses of husbands and parents who have deserted their families.”
157. In 1959 the agency noted that the average number of requests from the FBI per year was approximately 3,600, “divided about equally among national security, deserter and Selective Service cases,” and that “we are able to provide a good lead as to the whereabouts of the individual sought in the majority of cases.” Memo from Victor Christgau to W. L. Mitchell re: “Disclosure of Information to the Federal Bureau of Investigation in Deserted and Selective Service Cases,” January 15, 1959, pp. 1–2, F: Confidentiality, C7, SSHA. By the 1970s, Social Security officials noted the “steady increase in the number of requests for SSA assistance (issuing numbers and verifying existing numbers) from non-Federal organizations that wish to structure their recordkeeping systems around the SSN.” In the three years from 1968 to 1970, the SSA recorded receiving more than eighty such requests. Social Security Task Force, “Report to the Commissioner, Social Security Administration,” May 1971, p. 24, F: SSN-Early History, C12, SSHA.
158. Memo from Victor Christgau to W. L. Mitchell re: “Disclosure of Information for Administration of Public Assistance Programs-Deserting Parents (NOLEO Amendment) in Case of Aid to Dependent Children-Support Responsibility of Relatives.”
159. Already in 1937, false numbers and counterfeit cards were being used by criminals as credentials to set up bank accounts from which to write bad checks, prompting the SSB to issue a warning to banks “not to treat a social security account card as positive identification.” “Social Security Board to Issue Fraud Warning,” Wall Street Journal, April 26, 1937, p. 4.
160. For one potential such instance from 1950, see the recommendation for putting “personal affairs in shape for an emergency,” which included placing “old income-tax returns, canceled checks, savings bank books, birth certificate, social security card, and similar papers in a locked file drawer or similar safe place,” in Kathleen A. Johnston, “Family Economics—Home Management,” Journal of Home Economics 42: 6 (June 1950): 462. A similar list appears in “Tips to Wives on Business Management,” Atlanta Constitution, June 8, 1943, p. 12. But both notices, it seems clear, concerned being able to get to the number and other important documents when needed—rather than worries about theft or public knowledge of the SSN.
161. See, for example, “History Repeats,” New York Times Magazine (February 9, 1947): 44, in which it was reported that “the shoe number of a pair of red slippers which Annie Ruth Hight, Cedartown, Ga., bought was familiar to her. It was the same as her Social Security number.” The paper printed not just this woman’s name and number but her location. See also the listing of athletes’ numbers by New York Times columnist Arthur Daley: “Sports of the Times,” New York Times, June 10, 1945, p. S2; and April 24, 1950, p. 34.
162. Sonia Stein, “What Became of Banned Giveaways?” Washington Post, April 23, 1950, p. L4. “Tower Ticker,” Chicago Daily Tribune, May 10, 1950, p. 28. Roy Touchet to J. S. Futterman, “Account Number Issuance Procedure—Status Report,” November 30, 1959, p. 3, F: SSN-Process, C12, SSHA.
163. “Mercury Sets LP Bonus Plan,” The Billboard, November 18, 1950, p. 14.
164. William V. Nessly, “Security Board Chairman Hails Court Decisions,” Washington Post, May 25, 1937, p. 4.
165. Sparrow, Warfare State, 11.
166. Wyatt and Wandel, The Social Security Act in Operation, 62–63.
167. Letter from Frank Bane, Executive Director to Corrington Gill (Assistant Administrator, WPA), March 19, 1937, F: SSN-Enumeration, C12, SSHA.
168. The proposed Clark Amendment, which would permit employers to opt out if their pension plan matched or exceeded Social Security’s, was defeated in 1935. “Social Security Action Urged,” Los Angeles Times, December 21, 1936, p. A2; McKinley and Frase, Launching Social Security, 351–352, 360.
169. “Security Check-Up Uses Tax Returns,” New York Times, December 16, 1936, p. 32.
170. “Mayor Hartsfield No. 252–12–4939,” Atlanta Constitution, July 15, 1937, p. 9.
171. The ruling was Helvering v. Davis, 301 U.S. 619. “26,000 in Brooklyn Defy Social Security Law,” New York Times, November 29, 1936, p. 1. This practice was a response to news of legal filings against the Social Security Act and the possibility that failing to note one’s protest might imperil the “right to challenge the act or to recover taxes paid under it.” The SSB advised, however, that “no added rights accrue to any individual as a result of such a protest.”
172. Letter from Frank Bane, Executive Director to Corrington Gill (Assistant Administrator, WPA), March 19, 1937. An SSB Enumeration Manual from 1937 reads, “The employer should realize that the non-possession of an account number is no reason for not hiring a person provided he or she files an application immediately.” Social Security Board, Bureau of Federal Old-Age Benefits, Enumeration Manual, July 1, 1937, pp. 19–20, F: Enumeration-Manual, C8, SSHA.
173. “20,000 Old-Age Benefit Checks Going Begging,” Washington Post, August 3, 1937, p. 8.
174. “Tom McCarthy: Learns It’s Tough to Go Straight,” Washington Post, November 19, 1937, p. 9.
175. “National Affairs: Labor: Social Security,” Time (November 16, 1936): 25.
176. Ralph T. Jones, “Numerous Possibilities,” Atlanta Constitution, December 16, 1936, p. 6.
177. Ralph T. Jones, “Silhouettes: Life under a Monarchy,” Atlanta Constitution, November 5, 1939, p. 18A.
178. “Topics of the Times: Many American Figures,” New York Times, September 25, 1940, p. 25.
179. “Is It Too Late?” Atlanta Constitution, June 16, 1940, p. 10B.
180. “Sermons to Graduates,” Chicago Daily Tribune, March 27, 1945, 12. For another critique of big government, via Social Security, in this era, see Luther A. Huston, “Social Security Grown to Giant Size in 5 Years,” New York Times, August 11, 1940, p. 57.
181. See 1936 cartoon in the SSA archives, F: SSN-Initial Registration 1935–1937, C12, SSHA.
182. “The Santa Fe New Mexican … came out with full recognition of the Social Security Act today. From E. Dana Johnson down to reporters, social security account numbers were used for bylines. Over the editor’s ‘Jobs in the Solar Plexus’ was: ‘By 525–10–9454.’ In the personal columns were such items as: ‘No. 525–10–9363 is recovering from an attack of the flu.’ ” Associated Press, “Social Security Figures Are Newspaper By-Lines,” New York Times, December 11, 1936, p. 29. See also Jones, “Numerous Possibilities.”
183. A. G. L (Bloomington, Illinois), “Voice of the People,” Chicago Daily Tribune, October 2, 1943, p. 12.
184. McKinley and Frase, Launching Social Security, 322.
185. Cole, Suspect Identities, 249.
186. Letter from John L. Thurston, April 2, 1948; “Information about Birth Number: Order of Events,” April 5, 1948. See these and other materials in F: Universal Identifier, C13, SSHA. The Council on Vital Records and Vital Statistics voted on a resolution to create a “uniform birth certificate number” in 1947 and entered into brief discussions in 1947–1948 with the Social Security Administration about coordinating the two numbering systems.
187. Margo DeMello, Bodies of Inscription: A Cultural History of the Modern Tattoo Community (Durham, NC: Duke University Press, 2000), 66.
188. See the correspondence in F: Universal Identifier, C13, SSHA.
189. Jack Watson, “Dog Tags of Bureaucracy,” Los Angeles Times, April 12, 1948, p. A4.
190. “Every Employed Person to Be Given ‘Number’ by Costly, Cumbersome Security Plan,” El Paso County-Colorado Springs Gazette[?], November 1936, clipping in F: SSN-Enumeration, C12, SSHA.
191. Memorandum from Mr. Altmeyer to Mr. Way, June 9, 1936, F: SSN-Enumeration, C12, SSHA.
192. “The news that John Smith got $10 by having a social security number will not be slow in getting around, and it will bring in applicants from all unnumbered workers in that area,” claimed a Board member. “20,000 Old-Age Benefit Checks Going Begging,” p 8.
193. A. M. Wendell Malliet, “ ‘Social Security Is Hope of Negro in America,’ Says Cohron,” New York Amsterdam News, December 24, 1938, p. 4. See also “Negro Democrats Hail Roosevelt as Modern Savior,” New York Amsterdam News, June 27, 1936, p. 1.
194. For a later example, see “Tips on Checking Social Security,” New York Amsterdam News, September 11, 1948, p. 5.
195. The amendments were signed into law on August 10, 1939: apart from adding benefits for dependents and survivors of beneficiaries, the start date for monthly benefits was moved up (from January 1942 to January 1940). In the first year of administering monthly benefits, 250,000 individuals became beneficiaries. W. Andrew Achenbaum, Social Security: Visions and Revisions (Cambridge: Cambridge University Press, 1986), 3.
196. It continued, “You should consider your card as having the same importance as you do your insurance policies. Neither is handled carelessly: neither should be lost.” “Social Security,” New York Amsterdam News, April 15, 1939, p. 10. See also “Social Security: What It Means—How It Works,” Baltimore Afro-American, August 16, 1941, p. 9.
197. See, for example, “The New Social Security Act,” The Crisis 47: 2 (February 1940): 42–43, 59.
198. “Get Your Social Security Number before You Are Unemployed,” American Labor World (1937): 216.
199. See, for example, “Former Demand for Low Phone Numbers,” Nashville Tennessean and the Nashville American, December 14, 1911, p. 9; “Urges Car Owners Memorize License,” Washington Post, July 15, 1923, p. 57. The predecessor of today’s zip codes was established in large cities in 1943: “Mail to 178 Cities Soon to be Zoned,” New York Times, May 6, 1942, p. 44.
200. Major Thomas M. Nial, “Veteran’s Postwar Notebook,” Atlanta Constitution, May 16, 1945, p. 10.
201. North Carolina Employment Security Commission, North Carolina Employment Security Information (1941), p. 3.
202. Carolyn Keene, The Whispering Statue (New York: Grosset & Dunlap, 1937), p. 56.
203. As reported in Ernest R. Bryan, “America Advances with Social Security,” Health Officer 4 (May 1939): 104.
204. “Costume Jewelry Requires Art in Wearing,” Washington Post, August 5, 1939, p. 8. Sheilah Graham, “Colleen Moore Lends Home to Former Film Millionaires,” Atlanta Constitution, March 27, 1940, p. 16.
205. In fact, workers were cautioned not to carry Social Security cards on their person, given their fragility. See Nina Nazionale, “Tattoo as Memory Prompt,” New York Historical Society; http://blog.nyhistory.org/tattoo-as-memory-prompt/.
206. Advertisement, AFL-CIO, American Federationist 44: 1 (1937): 570.
207. Advertisement: “Free! Protection for Your Social Security Number,” Chicago Defender, October 22, 1938, p. 5.
208. Advertisement: “Hurry! Join the Hundreds Who Have Taken Advantage of This Free Gift,” Chicago Defender, November 12, 1938, p. 5; an ad with the same heading and slightly different wording also ran on December 7, 1938, p. 3.
209. Advertisement: “A Lifetime Gift for You,” Chicago Defender, October 15, 1938, p. 5.
210. Advertising Section, Popular Mechanics 67: 5 (May 1937): 48A. Key Tag Specialty Company, 91 Wall Street, New York City, NY.
211. Advertising Section, Popular Mechanics 70: 4 (August 1938): 43A. J. P. Routier Company, 221 Frost Ave, Rochester, NY. A similar product gets a mention as “a gadget which appeared last year” and “turns up again, much improved,” in “New Things in City Shops,” New York Times, March 31, 1940, p. 53.
212. Advertising Section, Popular Mechanics 71: 4 (April 1939): 168A. Roovers Bros, Inc. Dept. M41, 258 Broadway, New York, and 3611–14th Ave., Brooklyn, NY. The ad asked potential sellers to “send 10c with your social security number.” This was William Hament, 665 W. Lexington Street, Baltimore, MD.
213. See Advertising Section, Popular Mechanics 69: 3 (March 1938): 58A. The contact information was listed as Napeus, 1303 Austin St., Wichita Falls, Texas. Another seller, “Stanley-Engraving” of Lansing, Michigan, was listed for similar products in 1944; Advertising Section, Popular Mechanics 82: 6 (December 1944): 59A.
214. Advertising Section, Popular Mechanics (August 1938): 43A. Company listed was: H. I. Laboratories, 1451 Broadway, New York, NY.
215. Advertisement: “Social Security Record Made Permanent on a Solid Bronze Plate,” Atlanta Constitution, July 23, 1939, p. 4A.
216. The Billboard, November 28, 1942, p. 65. Company was Illinois Merchandising Mart, Dept. 117, 54 W. Illinois Street, Chicago, IL. The same advertisement (this one a full-page ad) appears in American Legion Magazine 32–33 (1942); Popular Mechanics Magazine 78: 6 (December 1942): 40A; Popular Science 141: 5 (November 1942): 21, and various others.
217. “Good-By, Old Pal,” Chicago Daily Tribune, January 1, 1950, p. 8.
218. Reported by Doe Richards in Arch Ward, “In Wake of the News,” Chicago Daily Tribune, October 18, 1950, p. C1.
219. See, for example, the scuffle over whether a passport could count for identification at the post office as related in Max Weissbach, “Postoffice ‘High Hats’ Passport,” New York Herald Tribune, May 2, 1933, p. 12.
220. Sylvia Weaver, “Shirtwaist Dress Fits Needs of Career Woman,” Los Angeles Times, January 8, 1942, p. A6. Note also the mention of a movie star favoring “simple dresses with novel belts,” one of which had a pocket for a “silver locket engraved with her social security number.” Sheilah Graham, “Sheilah Graham Describes Smart Outfits of the Stars: Hollywood Today,” Atlanta Constitution, July 20, 1937, p. 14.
221. On the encoding of gender dependence in the Social Security Act and other New Deal legislation, see Ruth Feldstein, Motherhood in Black and White: Sex and Race in American Liberalism, 1930–1965 (Ithaca, NY: Cornell University Press, 2000); Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998); and Alice Kessler-Harris, “In the Nation’s Image: The Gendered Limits of Social Citizenship in the Depression Era,” Journal of American History 86: 3 (1999): 1251–1279.
222. “Shop-Hound around the Town,” Vogue 89: 10 (May 15, 1937): 118. The disk sold at the Lord and Taylor department store for six dollars.
223. These rings were produced by the S. A. Meyer Company of Washington, Pennsylvania, as advertised in the Washington Observer, March 3, 1938.
224. Christine Rosen, “The Flesh Made Word: Tattoos, Transgression, and the Modified Body,” Hedgehog Review 17: 2 (Summer 2015). See Jane Caplan, ed., Written on the Body: The Tattoo in European and American History (Princeton, NJ: Princeton University Press, 2000).
225. Dan Bouk offers the most extended analysis of this image, suggesting that we “consider the ways that some Americans grasped those numbers as their own.” How Our Days Became Numbered, 210–211. See also David Peeler, Hope among Us Yet: Social Criticism and Social Solace in Depression America (Athens: University of Georgia Press, 1987), 103–104. The photograph can be found in Ann Whiston Spirn, Daring to Look: Dorothea Lange’s Photographs and Reports from the Field (Chicago: University of Chicago Press, 2008), 154. On Lange more generally, see Linda Gordon, Dorothea Lange: A Life beyond Limits (New York: Norton, 2009).
226. “Little Help Seen in Job Insurance,” New York Times, June 20, 1938, p. 13.
227. “Social Security Act Increases Tattooing,” Washington Post, April 15, 1937, p. 20. See a poem that nods to the “fad” of tattooing one’s Social Security number; H. I. Phillips, “The Once Over: Oh, Say, Can You See?” Washington Post, May 3, 1937, p. 9. See also the casual mention of “holders of social-security numbers” as customers for tattoos in “Decorative Art,” New York Times, June 20, 1937, p. 54.
228. “Through the Editor’s Specs,” Nation’s Business (December 1937): 7. Several news outlets reported that the favorite design for such inkings was “a fancy spread eagle, tossing a social security number from its beak.” See “Social Security Act Increases Tattooing.”
229. “Radio Comedians Turn to Mocking Daytime Shows,” Chicago Daily Tribune, February 11, 1938, p. 28.
230. Margot Mifflin, Bodies of Subversion: A Secret History of Women and Tattoo, 3rd ed. (Brooklyn, NY: powerHouse Books, 2013), 35. A San Francisco practitioner averaged “two social security clients a day” in 1937. “Through the Editor’s Specs,” 7.
231. See other reports of artists “working overtime … just tattooing Social Security numbers on the arms and legs of folks who didn’t want to be caught without their numbers.” C. W. Eldredge, “Identification,” Tattoo Archive (2000); www.tattooarchive.com/tattoo_history/identification.html.
232. The sign is in the collection of the Patricia D. Klingenstein Library, New-York Historical Society; Nazionale, “Tattoo As Memory Prompt.”
233. “Job Applicant Has Social Security Number on Back,” Atlanta Constitution, August 31, 1939, p. 8.
234. “Tattooed Man Bares His Social Security Number,” Chicago Daily Tribune, February 16, 1938, p. 8. See also “Miscellany: Red Tape,” Time, May 16, 1938.
235. “Has Security Number Tattooed on Arm,” Popular Science 130: 5 (May 1937): 53. Also see note in passing of a Memphis man with his number tattooed on his arm, in Wesley Smith, “The March of Finance,” Los Angeles Times, January 14, 1937, p. 13.
236. Photograph: “Stamped for Life,” Chicago Daily Tribune, January 17, 1937, p. SW4. The same man is pictured in the Washington Post on January 14, 1937, p. 16, and is referred to as Leon “Roffener” in “Sidelights of the Week: Security Tattoo,” New York Times, January 17, 1937, p. 60.
237. “Show Girl Keeps Security Secure on Knee,” Atlanta Constitution, February 10, 1937, p. 22; this is a photograph with the caption: “Apparently fearful of forgetting her social security number, June McNulty, Broadway showgirl, has Doris Donaldson print it indelibly on her knee.”
238. “Identified by Tattooing: Musician Had Social Security Number on His Forearm,” New York Times, August 22, 1943, p. 33; “Tattoo Marks on Arm Identify Florida Man,” Atlanta Constitution, August 22, 1943, p. 10A. “Body in Lot Starts Slaying Probe Here,” Washington Post, December 17, 1939, p. 3. See also the mention of murder victims identified by SSN tattoo at http://blog.constitutioncenter.org/2011/08/happy-birthday-social-security.
239. These were the years before serial numbers printed on arms came to be associated with survivors of concentration camps. As Peter Novick and others have observed, the Holocaust loomed much larger in American life starting in the 1970s and after than in the 1940s or 1950s. The Holocaust in American Life (Boston: Houghton Mifflin, 1999), 20. Gary Weissman pinpoints 1978 as the year the American public became fully “Holocaust conscious.” Fantasies of Witnessing: Postwar Efforts to Experience the Holocaust (Ithaca, NY: Cornell University Press, 2004), 8–9. Primo Levi’s memoir, The Drowned and the Saved (New York: Summit Books, 1988) described the Nazi tattoo as a “pure offense” and a means by which “slaves are branded and cattle sent to slaughter,” 12. Comparisons between Social Security numbers and “Nazi tattoos” or “totalitarianism” come from the 1990s and after; see discussions of the dangers of identity cards in “America, Doubled,” New York Times, April 1, 1990, p. E18, and Robert Ellis Smith, “The True Terror Is in the Card,” New York Times Magazine (September 8, 1996): 58. Recent critiques of biometrics and identity registration have been articulated most forcefully by Giorgio Agamben in State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005). I have found no reports of new SSN tattoos in the 1950s, but this may also be because tattooing’s popularity dropped off in that decade in both the military and the general population. DeMello, Bodies of Inscription, 65.
240. Note the considerable doubts in the 1930s that this was in fact a guarantee, however. Brian Balogh cites one insider, Edwin Witte, as claiming that for “nearly two years after the Social Security Act became law, serious doubts continued to exist about its ever coming into full operation.” See “Securing Support,” 65.
241. Robert F. Lenhart, quoted in Pearson, “ ‘Age Ought to Be a Fact,’ ” 1165.
1. Richard H. Rovere, “The Invasion of Privacy (1): Technology and the Claims of Community,” American Scholar 27 (Autumn 1958): 413–421.
2. Alfred W. McCoy, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison: University of Wisconsin Press, 2009), 17; see his discussion of “Wilson’s surveillance state,” which launched a “federal surveillance effort” that endured for fifty years, 293–346. See also Frank J. Donner, The Age of Surveillance (New York: Random House, 1980).
3. See Michael Sherry, In the Shadow of War: The United States since the 1930s (New Haven, CT: Yale University Press, 1995).
4. K. A. Cuordileone, “The Torment of Secrecy: Reckoning with American Communism and Anti-Communism,” Diplomatic History 35: 4 (September 2011): 616.
5. Mary Graham, Presidents’ Secrets: The Use and Abuse of Hidden Power (New Haven, CT: Yale University Press, 2017), 104, 115. She writes that in this era military intelligence “began operating outside domestic restraints and foreign laws. For the next thirty years, secrecy shielded its activities from debate and from integration into the public’s understanding of the nation’s foreign policy,” 82. Michael Schudson notes that “freedom of information” became a U.S. cause after World War II in part because of growing government secrecy, with advocates calling attention “to instances where the Soviets were more open than the Americans in their information policies.” The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Belknap Press of Harvard University Press, 2015), 46, 48. See also Daniel P. Moynihan, Secrecy: The American Experience (New Haven, CT: Yale University Press, 1998).
6. The internal security acts, respectively, criminalized Communism and allowed the registration and detention of subversive group members. The 1954 Expatriation Act additionally deprived convicted Communists of U.S. citizenship. Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War (New York: Hill and Wang, 1982).
7. According to Mary Graham, “more than four million employees were screened during the ten years of the loyalty program, and 27,000 were subjected to detailed investigations” with approximately 1,650 civilian and military employees dismissed while Truman was in office. Presidents’ Secrets, 105. See also David M. Oshinsky, A Conspiracy so Immense: The World of Joe McCarthy (New York: Free Press, 1983); and Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998). For the costs of the loyalty-security program to suspected homosexuals, see Robert D. Dean, Imperial Brotherhood: Gender and the Making of Cold War Foreign Policy (Amherst: University of Massachusetts Press, 2003); and David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2006). Johnson estimates that 5,000 federal employees suspected of being gay or lesbian lost their jobs by 1960.
8. Edward Shils, “Privacy: Its Constitution and Vicissitudes,” Law and Contemporary Problems 31: 2 (1966): 285.
9. Myron Brenton, The Privacy Invaders (New York: Coward-McCann, 1964), 12.
10. Olmstead v. United States, 277 U.S. 438 (1928).
11. Martin L. Gross, The Brain Watchers (New York: Random House, 1962), 13.
12. Abbott Gleason, Totalitarianism: The Inner History of the Cold War (New York: Oxford University Press, 1995); Margot A. Henriksen, Dr. Strangelove’s America: Society and Culture in the Atomic Age (Berkeley: University of California Press, 1997); Timothy Melley, Empire of Conspiracy: The Culture of Paranoia in Postwar America (Ithaca, NY: Cornell University Press, 2000).
13. Laura McEnaney, Civil Defense Begins at Home: Militarization Meets Everyday Life in the Fifties (Princeton, NJ: Princeton University Press, 2000); Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (New York: Basic Books, 1988); Donald R. McNeill, “America’s Longest War: The Fight over Fluoridation, 1950–,” Wilson Quarterly (Summer 1985): 140–153.
14. Samuel A. Stouffer, Communism, Conformity, and Civil Liberties: A Cross-Section of the Nation Speaks its Mind (New York: Doubleday & Co., 1955), 87, 69, 59; emphasis in original. Stouffer reported that, given the opportunity to air their worries, respondents cited solely personal and family problems 80 percent of the time, with another 10 percent professing no worries at all; 8 percent mentioned international affairs, 59, 66. Sociologist David Riesman distrusted the finding that only 8 percent of the sample raised political concerns, wondering if the framing of the study pushed respondents to respond to more private concerns. “Orbits of Tolerance, Interviewers, and Elites,” Public Opinion Quarterly 20: 1; Special Issue on Communication (Spring 1956): 49–73. Stouffer was moderately conservative in his politics, which may help explain his dismissal of anticommunist excesses as a serious concern for the ordinary person.
15. Andrea Friedman, Citizenship in Cold War America: The National Security State and the Possibilities of Dissent (Amherst: University of Massachusetts Press, 2014), 28.
16. For Eastern Europeans’ own debates over public and private, see Svetlana Boym, Common Places: Mythologies of Everyday Life in Russia (Cambridge, MA: Harvard University Press, 1994), especially chs. 1 and 2; and Paul Betts, Within Walls: Private Life in the German Democratic Republic (New York: Oxford University Press, 2010).
17. As K. A. Cuordileone writes, “Anti-Communism was more than a defense against Communism (or liberalism); in its broadest cultural manifestations and most heated imaginings, it was a defense against America itself.” Manhood and American Political Culture in the Cold War (New York: Routledge, 2005), xix.
18. Kathleen G. Donohue examines arguments made over government secrecy and the public right to know in “Access Denied: Anticommunism and the Public’s Right to Know,” in Liberty and Justice for All? Rethinking Politics in Cold War America, ed. Kathleen G. Donohue (Amherst: University of Massachusetts Press, 2012), 21–50; Bricker is quoted on p. 40.
19. Nancy Schnog, “On Inventing the Psychological,” in Inventing the Psychological: Toward a Cultural History of Emotional Life in America, ed. Joel Pfister and Nancy Schnog (New Haven, CT: Yale University Press, 1997), 6. See especially Ellen Herman, The Romance of American Psychology: Political Culture in an Age of Experts (Berkeley: University of California Press, 1994).
20. See Andrew Polsky, The Rise of the Therapeutic State (Princeton: Princeton University Press, 1991); James H. Capshew, Psychologists on the March: Science, Practice, and Professional Identity in America, 1929–1969 (New York: Cambridge University Press, 1999); Hamilton Cravens and Mark Solovey, eds., Cold War Social Science: Knowledge Production, Liberal Democracy, and Human Nature (New York: Palgrave Macmillan, 2012); and Joy Rohde, Armed with Expertise: The Militarization of American Social Research during the Cold War (Ithaca, NY: Cornell University Press, 2013). Psychologists’ participation in World War I is described by John Carson in “Army Alpha, Army Brass, and the Search for Army Intelligence,” Isis 84 (1993): 278–309.
21. May, Homeward Bound, 183–207.
22. See W. H. Auden, The Age of Anxiety: A Baroque Eclogue, ed. and with an introduction by Alan Jacobs (Princeton, NJ: Princeton University Press, 2011). Schlesinger’s title was “Politics in the Age of Anxiety.” Historian Ruth Feldstein points out that therapeutic language was “central to renegotiations of liberalism from the New Deal into the Cold War.” Motherhood in Black and White: Race and Sex in American Liberalism, 1930–1965 (Ithaca, NY: Cornell University Press, 2000), 63. See also Peter Sheehy, “The Triumph of Group Therapeutics: Therapy, the Group, and Liberalism in America, 1910–1960” (PhD diss., University of Virginia, 2002). Eric Fromm, Erik Erikson, Daniel Bell, Arthur Schlesinger, and Hannah Arendt were among the intellectuals adopting this language.
23. Ron Robin, The Making of the Cold War Enemy: Culture and Politics in the Military-Intellectual Complex (Princeton, NJ: Princeton University Press, 2001), 65. Robin credits the political scientist Harold Lasswell with opening up the behavioral sciences to psychoanalytic perspectives. Friedman, Citizenship in Cold War America, 46.
24. Jonathan Metzl, Prozac on the Couch: Prescribing Gender in the Era of Wonder Drugs (Durham, NC: Duke University Press, 2003); Deborah Weinstein, The Pathological Family: Postwar America and the Rise of Family Therapy (Ithaca, NY: Cornell University Press, 2013).
25. Ernest Havemann, “The Age of Psychology in the U.S.,” Life (January 7, 1957): 72.
26. Philip Cushman, Constructing the Self, Constructing America: A Cultural History of Psychotherapy (Reading, MA: Addison-Wesley, 1995); Nathan Hale, The Rise and Crisis of Psychoanalysis in the United States: Freud and the Americans, 1917–1985 (New York: Oxford University Press, 1995).
27. Life’s series, “Psychology: What It Means in Modern Life,” debuted with Havemann’s “The Age of Psychology in the U.S.,” 68–82; quotes on pp. 70, 79.
28. William A. Creech, “Psychological Testing and Constitutional Rights,” Duke Law Journal 1966 (1966): 334.
29. James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011), 4.
30. Jamie Cohen-Cole, The Open Mind: Cold War Politics and the Sciences of Human Nature (Chicago: University of Chicago Press, 2014). See also Andrew Jewett, “Naturalizing Liberalism in the 1950s,” in Professors and Their Politics, ed. Neil Gross and Solon J. Simmons (Baltimore: Johns Hopkins University Press, 2014), 191–216.
31. This list is culled from Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), 133–157. Martin Gross instead used the term “psychological espionage,” which he borrowed from Jay L. Otis, a former president of the Division of Consulting Psychology of the American Psychological Association. The Brain Watchers, 90, 233.
32. George Orwell, Nineteen Eighty-Four (New York: Harcourt, Brace, 1949).
33. Hannah Arendt, “The Public Realm and the Private Realm,” in The Hannah Arendt Reader, ed. Peter Baehr (New York: Penguin, 2000), 212. The anthropologist John L. Locke writes of a long history of human movement toward the opportunity for “personal opacity,” which includes the residential walls that allow for certain kinds of personal, marital, and familial relationships. He adds that the search for opacity, however, thwarts the “lifelong quest of all humans to know what is going on in the personal and private lives of others.” Eavesdropping: An Intimate History (New York: Oxford University Press, 2010), 5–6.
34. Paul Betts, The Authority of Everyday Objects: A Cultural History of West German Industrial Design (Berkeley: University of California Press, 2007), 236; Betts, Within Walls.
35. Charles Madge, “Private and Public Spaces,” Human Relations 3 (1950): 187–199; quote on 189.
36. May, Homeward Bound.
37. Robert B. Westbrook, “Fighting for the American Family: Private Interests and Public Obligation in World War II,” in The Power of Culture, ed. Richard W. Fox and T. J. Jackson Lears (Chicago: University of Chicago Press, 1993), 195–221.
38. Andrew M. Shanken, 194X: Architecture, Planning, and Consumer Culture on the American Home Front (Minneapolis: University of Minnesota Press, 2009).
39. Juliet A. Williams, “Privacy in the (Too Much) Information Age,” in Public Affairs: Politics in the Age of Sex Scandals ed. Paul Apostolidis and Juliet A. Williams (Durham, NC: Duke University Press, 2004), 215. See Beatriz Colomina, Privacy and Publicity: Modern Architecture as Mass Media (Cambridge, MA: MIT Press, 1994); and Victoria Rosner, Modernism and the Architecture of Private Life (New York: Columbia University Press, 2005).
40. Margaret Marsh argues that the ideology of domesticity and the suburban ideal were two separate belief systems that fused in the postwar period; but even before this, upper-middle-class men and women “looked to the suburbs as the appropriate place to develop a new kind of family life” such that by the end of the 1920s “suburbanization and domesticity had become seemingly inseparable.” Suburban Lives (New Brunswick: Rutgers University Press, 1990), 182–183. She argues that by the 1920s, “the owner-occupied, single-family house, set in a community of similar houses, where children were the central focus of family life, and from which families considered ‘undesirable’ were excluded, had become, not the norm for all families, but very nearly the standard by which one’s middle-class credentials were judged,” 183.
41. Marsh, Suburban Lives, 184–185.
42. Housing starts reached a record 1.65 million in 1955, with fully two-thirds of the construction consisting of private one-family dwellings; Clifford E. Clark Jr., “Ranch-House Suburbia: Ideals and Realities,” in Recasting America: Culture and Politics in the Age of Cold War, ed. Lary May (Chicago: University of Chicago Press, 1989), 183. See also Gwendolyn Wright, Building the Dream (Cambridge, MA: MIT Press, 1981), ch. 13; Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (New York: Oxford University Press, 1985); Lizabeth Cohen, A Consumers’ Republic: The Politics of Mass Consumption in Postwar America (New York: Knopf, 2003), 194–256; May, Homeward Bound; Dolores Hayden, Redesigning the American Dream: Gender, Housing, and Family Life (New York: Norton, 2002); and Rosalyn Baxandall and Elizabeth Ewen, Picture Windows: How the Suburbs Happened (New York: Basic Books, 2000).
43. David M. Freund, Colored Property: State Policy and White Racial Politics in Suburban America (Chicago: University of Chicago Press, 2007); Thomas J.Sugrue, Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (Princeton, NJ: Princeton University Press, 1996). Restrictive covenants and deed restrictions kept most of these communities white until after 1960, even despite the Supreme Court’s Shelley v. Kramer ruling of 1948. See Jeffrey D. Gonda, Unjust Deeds: The Restrictive Covenant Cases and the Making of the Civil Rights Movement (Chapel Hill: University of North Carolina Press, 2015). On the sexual sorting of suburbia, see Clayton C. Howard, “The Closet and the Cul de Sac: Sex, Politics, and Suburbanization in Postwar California” (PhD diss., University of Michigan, 2010).
44. Dianne Harris calls the suburban ethos an “exclusionary discourse” in “Screening Identity: Race, Class, and Privacy in the Ordinary Postwar House, 1945–1960,” in Race and Landscape in America, ed. Richard Schein (New York: Routledge, 2007), 127–156; quotation on p. 129. See also Wini Breines, Young, White and Miserable: Growing up Female in the Fifties (Chicago: University of Chicago Press, 2001).
45. Stephen J. Whitfield, “The Culture of the Cold War,” in The Cambridge Companion to Modern American Culture, ed. Christopher Bigsby (Cambridge: Cambridge University Press, 2006), 256–274; Clark, “Ranch-House Suburbia,” 171–191.
46. Clark writes, for instance, that suburbanites sought to leave the “noise and insecurities” of city life behind. “Ranch-House Suburbia,” 188.
47. Housing and Home Finance Agency (Edward Thurber Paxton), “What People Want When They Buy a House: A Guide for Architects and Builders” (U.S. Department of Commerce, 1955), 1. The report was based on a survey by the Institute for Social Research at the University of Michigan and a study by the Small Homes Council of the University of Illinois. Better Homes and Gardens conducted a similar survey of new home buyers in 1950.
48. “What People Want When They Buy a House,” 8, 15–16.
49. Quoted in Harris, “Screening Identity,” 137.
50. Jason Reid, Get out of My Room! A History of Teen Bedrooms in America (Chicago: University of Chicago Press, 2017), 39–66. Dr. Benjamin Spock was an important voice in the new science of parenting, beginning with the first edition of his popular manual, The Common Sense Book of Baby and Child Care (New York: Duell, Sloan and Pearce, 1946).
51. See Howard, “The Closet and the Cul de Sac,” 159–162. Charles Madge noted in 1950s Britain too that the Ministry of Health recommended that every house with three or more bedrooms have not one but two W.C.s. “Private and Public Spaces,” 191.
52. Robert Woods Kennedy, The House and the Art of Its Design (New York: Reinhold Corporation, 1953), 113; quoted in Howard, “The Closet and the Cul de Sac,” 159. Clark likewise notes the division of ranch homes into “living,” “housework,” and “private” areas. See “Ranch-House Suburbia,” 179; on bathrooms, see 181.
53. Howard, “The Closet and the Cul de Sac,” 160.
54. Rhonda Y. Williams, The Politics of Public Housing: Black Women’s Struggles against Urban Inequality (New York: Oxford University Press, 2004), 38–39. Public housing was of a piece with other New Deal welfare programs like Aid for Dependent Children, she notes, in linking eligibility to “middle-class character judgments and state surveillance,” 6.
55. Clayton Howard, “Building a ‘Family-Friendly’ Metropolis: Sexuality, the State, and Postwar Housing Policy,” Journal of Urban History 39: 5 (2013): 933–955. Compounding this bias, the Servicemen’s Readjustment Act of 1944 barred members of the military discharged for homosexual conduct from receiving its low-interest loans. See Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009), 137–138.
56. As Clark suggests, the “window walls” were meant to signal healthfulness, peace and tranquility by bringing nature and light into the home. “Ranch-House Suburbia,” 174, 179.
57. Harris, “Screening Identity,” 128–129, 148.
58. Quoted in Harris, “Screening Identity,” 139.
59. Harris, “Screening Identity,” 143–144. Sandy Isenstadt, “The Rise and Fall of the Picture Window,” Harvard Design Magazine (Fall 1998): 27–33.
60. Michael Kackman, Citizen Spy: Television, Espionage, and Cold War Culture (Minneapolis: University of Minnesota Press, 2005).
61. Westin, Privacy and Freedom, 68.
62. Wiretapping was upheld by the Supreme Court during Prohibition in Olmstead v. United States (1928), 277 U.S. 438. But it was a contentious practice, regularly provoking federal congressional hearings from 1918 onward and banned (for either public or private entities) by some states—although those bans were also regularly violated and irregularly enforced. See Samuel Dash, Richard F. Schwartz, and Robert E. Knowlton, The Eavesdroppers (New Brunswick: Rutgers University Press, 1959), 421.
63. Dash et al., The Eavesdroppers, 10.
64. Dash et al., The Eavesdroppers, 3–4. On the other hand, they noted, the public was told by the telephone company that “wiretapping does not exist.”
65. This contrasted with contemporary portrayals of the anonymity of urban neighborhoods. In Alfred Hitchcock’s 1954 film Rear Window, a character in Greenwich Village cries out to his apartment courtyard: “You don’t know the meaning of the word ‘neighbors’! Neighbors like each other, speak to each other, care if anybody lives or dies! But none of you do!”
66. Quoted in Brenton, The Privacy Invaders, 46–47.
67. See Rowena Olegario, A Culture of Credit: Embedding Trust and Transparency in American Business (Cambridge, MA: Harvard University Press, 2006); Kenneth Lipartito, “Mediating Reputation: Credit Reporting Systems in American History,” Business History Review 87: 4 (Winter 2013): 655–677; Josh Lauer, Creditworthy: A History of Consumer Surveillance and Financial Identity in America (New York: Columbia University Press, 2017).
68. Brenton, The Privacy Invaders, 49.
69. Shils, “Privacy: Its Constitution and Vicissitudes,” 285.
70. Brenton, The Privacy Invaders, 175–176.
71. Richard Baxter, “The Harassed Respondent: I. Sales Solicitation in the Guise of Consumer Research” (orig. pub. 1965), in Current Controversies in Marketing Research, ed. Leo Bogart (Chicago: Markham, 1969), 25. For the growth of opinion and consumer surveys in this period, see Sarah E. Igo, The Averaged American: Surveys, Citizens, and the Making of a Mass Public (Cambridge, MA: Harvard University Press, 2007).
72. “That Noise You Hear May Be Pollution,” Business Week, April 22, 1967: 42, 43; quoted in James E. Hildebrand, “Noise Pollution: An Introduction to the Problem and an Outline for Future Legal Research,” Columbia Law Review 70: 4 (April 1970): 666.
73. William Burns, Noise and Man (London: Murray, 1968), 663.
74. New York Committee for a Quiet City, Inc., Final Report and Recommendations, July 7, 1960, p. 24; quoted in Hildebrand, “Noise Pollution,” 656. Later such concerns would extend even to “personality disintegration,” as in one Ford Motor Company advertisement: “Studies show that excessive noise can bring on anxiety, bizarre bodily sensations, and personality disintegration. Outside, it’s getting noisier and noisier. Inside a 1971 Ford LTD, it’s another world.… This year take a quiet break.” Newsweek (October 12, 1970): 52–53; quoted in Gregory F. Houlé, “Toward the Comprehensive Abatement of Noise Pollution: Recent Federal and New York City Noise Control Legislation,” Ecology Law Quarterly 4: 1 (January 1974).
75. August Heckscher, “The Invasion of Privacy (II): The Reshaping of Privacy,” American Scholar 28 (1959): 11–20; quote on p. 15.
76. Clark, “Ranch-House Suburbia,” 180.
77. Betty Friedan, The Feminine Mystique (New York: Norton, 1963), 246. See Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002), 86–87.
78. John Demos, A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970), 46–47.
79. Harris, “Screening Identity,” 129.
80. Jackson, Crabgrass Frontier; Clifford Clark Jr., American Family Home, 1800–1960 (Chapel Hill: University of North Carolina Press, 1986); Robert Fishman, Bourgeois Utopias: The Rise and Fall of Suburbia (New York: Basic Books, 1987); Marsh, Suburban Lives.
81. This was John Keats, The Crack in the Picture Window (Boston: Houghton Mifflin, 1956); quoted in Harris, “Screening Identity,” 145.
82. Heckscher, “The Invasion of Privacy (II),” 15.
83. See, for example Vance Packard’s The Status Seekers: An Exploration of Class Behavior in America and the Hidden Barriers That Affect You, Your Community, Your Future (New York: D. McKay, Co., 1959).
84. William H. Whyte, The Organization Man (New York: Simon and Schuster, 1956), 389.
85. Whyte, The Organization Man, 356, 390; emphasis in original.
86. David Riesman in collaboration with Reuel Denney and Nathan Glazer, The Lonely Crowd: A Study of the Changing American Character (New Haven, CT: Yale University Press, 1950).
87. Sloan Wilson, The Man in the Gray Flannel Suit (New York: Simon and Schuster, 1955).
88. Riesman, The Lonely Crowd, 18; emphasis in original. K. A. Cuordileone argues that “the psychological implications of a mass society, and the difficulty of achieving autonomy—an independent, well-fortified sense of self within that society—became the single most compelling problem for postwar intellectuals and social critics.” Manhood and American Political Culture in the Cold War, 98–99.
89. See John Seeley, Crestwood Heights: A Study of the Culture of Suburban Life (New York: Basic Books, 1956); Keats, The Crack in the Picture Window; and William Dobriner, ed., The Suburban Community (New York: Putnam, 1958). By the later 1960s, there were critiques of this characterization too, such as Herbert J. Gans’s 1967 attempt to correct the dominant view of suburban life as “socially, culturally, and emotionally destructive” in The Levittowners: Ways of Life and Politics in a New Suburban Community (New York: Pantheon Books, 1967), 153–184; quote on p. 153.
90. Sidney M. Jourard, The Transparent Self: Self-Disclosure and Well-Being (Princeton, NJ: Van Nostrand, 1964), 64–65, 71–72. Elsewhere, Jourard called for an “Education for Private Life” that might counteract Americans’ training in the institutions of conformity.
91. Brett Gary, The Nervous Liberals: Propaganda Anxieties from World War I to the Cold War (New York: Columbia University Press, 1999); David Greenberg, Republic of Spin: An Inside History of the American Presidency (New York: W. W. Norton, 2016); Adam Sheingate, Building a Business of Politics: The Rise of Political Consulting and the Transformation of American Democracy (New York: Oxford University Press, 2016).
92. Historians have covered this territory extensively. For a recent overview see the Special Issue on “Brainwashing: Mind Control, Media, and Warfare,” Grey Room 45 (Fall 2011): 6–150. See also Catherine Lutz, “Epistemology of the Bunker: The Brainwashed and Other New Subjects of Permanent War,” in Inventing the Psychological: Toward a Cultural History of Emotional Life in America, ed. Joel Pfister and Nancy Schnog (New Haven, CT: Yale University Press, 1997), 245–267.
93. Susan Carruthers, “The Manchurian Candidate (1962) and the Cold War Brainwashing Scare,” Historical Journal of Film Radio, and Television 18: 1 (March 1998): 75–94; Charles Young, “Missing Action: POW films, Brainwashing, and the Korean War, 1954–1968,” Historical Journal of Film, Radio and Television 18: 1 (March 1998): 49–74.
94. Edward Hunter, Brain-Washing in Red China: The Calculated Destruction of Men’s Minds (New York: Vanguard Press, 1951). Hunter first used the term in 1950, and the CIA had used it even before the war began; see Timothy Melley, “Brain Warfare: The Covert Sphere, Terrorism, and the Legacy of the Cold War,” Grey Room 45 (Fall 2011): 24, 28. See also Joost Meerloo, The Rape of the Mind: The Psychology of Thought Control, Menticide, and Brainwashing (Cleveland: Progressive Press, 1956).
95. For the most thorough account, see Charles S. Young, Name, Rank, and Serial Number: Exploiting Korean War POWs at Home and Abroad (New York: Oxford University Press, 2014).
96. Robin, The Making of the Cold War Enemy, 167. See, for example, Robert Alden, “X-Ray of the Communist Mind,” New York Times Magazine (December 20, 1953): 12, 34–37; and “The GIs Who Fell for the Reds,” Saturday Evening Post (March 6, 1954): 17–19. Matthew W. Dunne cites as evidence 231 articles on brainwashing that appeared in the New York Times in the decade of the 1950s; he counted 5,391 on the threat of nuclear war and 85 speculating on communist takeover. A Cold War State of Mind: Brainwashing and Postwar American Society (Amherst: University of Massachusetts Press, 2013), 39, 243 n. 96.
97. The CIA tried to beat the Communists to the punch by doing their own covert experiments with electroshock, hypnotism, drugs, and sensory deprivation for the waging of “brain warfare” (known as MK-ULTRA and the roots of torture as interrogation) in 1950; Melley, “Brain Warfare,” 28–29.
98. Andreas Killen and Stefan Andriopoulos, “Editor’s Introduction,” Special Issue on Brainwashing: Mind Control, Media, and Warfare, Grey Room 45 (Fall 2011): 7, 12.
99. Friedman in Citizenship in Cold War America and Matthew Dunne in A Cold War State of Mind both make this case. Dunne argues that brainwashing was a break in the postwar consensus: its move back to the United States allowed a critique of postwar culture, elevating the values of authenticity, individuality, and anti-conformity.
100. The writer is quoting Robert J. Lifton’s Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China (New York: Norton, 1961).
101. Albert Biderman, “The Image of ‘Brainwashing,’ ” Public Opinion Quarterly 26 (Winter 1962): 547–563; quotes on pp. 547, 551. See the Journal of Social Issues 13: 3 (1957), which is devoted to the “debunking of brainwashing.”
102. Anna McCarthy, The Citizen Machine: Governing by Television in 1950s America (New York: New Press, 2010); Fred Turner, The Democratic Surround: Multimedia and American Liberalism from World War II to the Psychedelic Sixties (Stanford, CA: Stanford University Press, 2013); and Christopher Simpson, Science of Coercion: Communication Research and Psychological Warfare, 1945–1960 (New York: Oxford University Press, 1994). Part of what historian Ron Robin calls the “canon” of Cold War communications studies was that “propaganda and information management were normative aspects of modern society.” This was yet another area of convergence between “Sovietized” and democratic states. Robin, The Making of the Cold War Enemy, 91–92.
103. Robin, The Making of the Cold War Enemy, 81–82. Studies of mass persuasion from the era stressed its considerable limits as a tactic. See, for example, Alex Inkeles’s Public Opinion in Soviet Russia: A Study in Mass Persuasion (Cambridge, MA: Harvard University Press, 1950).
104. The 1938 “War of the Worlds” radio broadcast was a prime example. More generally, see Daniel J. Czitrom, Media and the American Mind: From Morse to McLuhan (Chapel Hill: University of North Carolina Press, 1982).
105. Robert S. Lynd and Helen Merrell Lynd, Middletown, A Study in Contemporary American Culture (New York: Harcourt, Brace and Co., 1929), chs. 8, 9.
106. John Riley, Frank Cantwell, and Katherine Ruttiger, “Some Observations on the Social Effects of Television,” Public Opinion Quarterly 13 (Summer 1949): 223–334; quotes on pp. 230, 231–232.
107. Lynn Spigel, Make Room for TV: Television and the Family Ideal in Postwar America (Chicago: University of Chicago Press, 1992); Cecilia Tichi, Electronic Hearth: Creating an American Television Culture (New York: Oxford University Press, 1991).
108. Susan J. Douglas, Listening In: Radio and the American Imagination (Minneapolis: University of Minnesota Press, 2004).
109. Frederic Wertham, Seduction of the Innocent (New York: Rinehart, 1954). See James Gilbert, A Cycle of Outrage: America’s Reaction to the Juvenile Delinquent in the 1950s (New York: Oxford University Press, 1986).
110. Daniel Horowitz, The Anxieties of Affluence: Critiques of American Consumer Culture, 1939–1979 (Amherst: University of Massachusetts Press, 2004); Cohen, A Consumer’s Republic. See Frederic Wakeman’s The Hucksters (1946) and Sloan Wilson’s The Man in the Gray Flannel Suit (1955) for unflattering presentations of the ad man.
111. One of Dichter’s early (1939) successes was a study for Chrysler Corporation that linked convertibles with mistresses and sedans with wives.
112. John S. Sinclair, foreword to Lawrence C. Lockley, Use of Motivational Research in Marketing, Studies in Business Policy, No. 97 (New York: National Industrial Conference Board, 1960), 4.
113. Lockley, Use of Motivational Research, 23, 9.
114. Cushman, Constructing the Self, Constructing America.
115. For a full treatment, see Lawrence R. Samuel, Freud on Madison Avenue: Motivation Research and Subliminal Advertising in America (Philadelphia: University of Pennsylvania Press, 2010).
116. Fred T. Schreier and Albert J. Wood, “Motivation Analysis in Market Research,” Journal of Marketing 13: 2 (October 1948): 172–182.
117. Lockley, Use of Motivational Research, 10.
118. Ralph L. Westfall, Harper W. Boyd Jr., and Donald T. Campbell, “The Use of Structured Techniques in Motivation Research,” Journal of Marketing 22: 2 (October 1957): 134–139; quote on 134. A classic early study (on instant versus drip ground coffee and the motivations of women who purchased each: did the decision signal laziness, care for their families, frugality, etc.) was Mason Haire, “Projective Techniques in Marketing Research,” Journal of Marketing 14 (April 1950): 649–656.
119. The Rorschach test arrived in the United States in 1924. The difficulty in discerning proper responses to it “left the tester with the final, indeed the only, say in what the test-taker’s responses meant.” Roderick D. Buchanan, “Ink Blots or Profile Plots: The Rorschach versus the MMPI as the Right Tool for a Science-Based Profession,” Science, Technology, & Human Values 2: 22 (1997): 168–206; see pp. 175, 177. Also see Rebecca M. Lemov’s discussion of the development of projective tests that attempted to “look directly into the mind and heart of a human being,” the TAT and Rorchach in particular, in Database of Dreams: The Lost Quest to Catalog Humanity (New Haven, CT: Yale University Press, 2015), 19–43; quote on p. 20.
120. See the committee report of a section of the American Marketing Association: Julian L. Woodward, David Hofler, Fred Havilland, Herbert Hyman, Jack Peterman, and Harry Rosten, “Depth Interviewing,” Journal of Marketing 14: 5 (April 1950): 721–724.
121. Lockley, Use of Motivational Research, 15–16, 22, 13; emphasis in original.
122. N. D. Rothwell, “Motivational Research Revisited,” Journal of Marketing 20: 2 (October 1955): 150–154; quote on p. 150. Calling MR “badly employed and sadly abused” by marketers, this critic painted a “sharp contrast between the hopeful but cautious clinicians who developed projective testing and the boastful claims made for it by the MR borrowers,” 152.
123. Lockley, Use of Motivational Research, 24.
124. Lockley, Use of Motivational Research, 25, 26. Others made the point that “depth” interviewing and “projective” techniques were vague and unhelpful terms for what marketers were doing. See Robert J. Williams, “Is It True What They Say about Motivation Research?” Journal of Marketing 22: 2 (October 1957): 125–133.
125. Jim Montgomery, “Your Automobile Is a Real Tattle-Tale,” Atlanta Constitution, March 5, 1958, p. 24.
126. Montgomery, “Your Automobile is a Real Tattle-Tale,” 24.
127. Marshall McLuhan’s The Mechanical Bride: Folklore of Industrial Man (New York: Vanguard Press, 1951) had also exposed advertisers’ efforts to “get inside the collective public mind.”
128. For a full account, see Daniel Horowitz, Vance Packard and American Social Criticism (Chapel Hill: University of North Carolina Press, 1994), 102–131. See also his discussion of readers’ responses to Packard’s books, 158–178.
129. Horowitz, Vance Packard and American Social Criticism, 164.
130. Samuel, Freud on Madison Avenue, 88–120; James V. McConnell, Richard L. Cutler, and Elton B. McNeil, “Subliminal Stimulation: An Overview,” American Psychologist 13: 3 (1958): 229–242; Stuart Rogers, “How a Publicity Blitz Created the Myth of Subliminal Advertising,” Public Relations Quarterly 37 (Winter, 1992–93): 12–17.
131. For popular coverage of the Vicary incident, see Carter Henderson, “A Blessing or a Bane? TV Ads You’d See without Knowing It,” Wall Street Journal, September 13, 1957, p. 1; “Ads Aimed at Subconscious Criticized by Researcher,” Wall Street Journal, September 30, 1957, p. 13; “ ‘Invisible’ Ads Tested,” Printers’ Ink, September 20, 1957, p. 44; and Gay Talese, “Most Hidden Hidden Persuasion,” New York Times Magazine (January 12, 1958): 59. See also Ralph Norman Haber, “Public Attitudes regarding Subliminal Advertising,” Public Opinion Quarterly 23: 2 (Summer 1959): 291–293.
132. Samuel, Freud on Madison Avenue, 96.
133. Erving Goffman’s work in social interactionism, as well as George Herbert Mead’s on the “social self,” pointed in this direction. The link between knowing and controlling had also been observed in the literature on experimenter and expectancy effects in psychology and the Hawthorne experiments of the 1930s. See Richard Gillespie, Manufacturing Knowledge: A History of the Hawthorne Experiments (New York: Cambridge University Press, 1991).
134. This is why, as Jamie Cohen-Cole has argued, “creativity” was such an important solution to an array of social problems for mid-century social scientists. “The Creative American: Cold War Salons, Social Science, and the Cure for Modern Society,” Isis 100: 2 (2009): 219–262.
135. Holmes Alexander, “The Campaign against Intrusion,” Los Angeles Times, October 21, 1957, p. B5.
136. Signed: Parent, Downey, “State School Test Rapped,” Los Angeles Times, December 30, 1957, p. B4.
137. In what became known as the Lippmann-Terman controversy, Walter Lippmann and Lewis M. Terman publicly debated the worth of intelligence testing in the early 1920s, Lippmann mounting a sharp criticism of the tests in a series of articles for The New Republic. See his “The Mental Age of Americans,” New Republic 32 (October 25, 1922): 213–215. On the history of intelligence and aptitude testing, see John Carson, The Measure of Merit: Talents, Intelligence, and Inequality in the French and American Republics, 1750–1940 (Princeton, NJ: Princeton University Press, 2007); and Nicholas Lehmann, The Big Test: The Secret History of the American Meritocracy (New York: Farrar, Straus and Giroux, 1999).
138. This is cited in Banesh Hoffman, Tyranny of Testing (New York: Crowell-Collier Press, 1962), 37–38. See Oscar Buros, ed., Mental Measurements Yearbook, 5th ed. (New Brunswick, NJ: Rutgers University Press, 1959).
139. “Rash of Testing in Schools: Is It Being Overdone?” U.S. News and World Report (June 15, 1959); “Testing: Can Everyone Be Pigeon-Holed?” Newsweek (July 20, 1959); “What the Tests Do Not Test,” New York Times Magazine (October 2, 1960): 14.
140. Hoffman, Tyranny of Testing. Banesh Hoffman, “ ‘Best’ Answers or Better Minds,” American Scholar 28: 2 (Spring 1959): 195–202, and “The Tyranny of Multiple-Choice Tests,” Harper’s Magazine 222 (March 1961): 37–41. See also Hillel Black, They Shall Not Pass (New York: Morrow, 1962), for rising concerns about the discriminatory effects of testing.
141. See Bernice M. Moore and Wayne H. Holtzman, “What Texas Knows about Youth,” National Parent-Teacher (September 1958): 22–24; and Gwynne Nettler, “Test Burning in Texas,” American Psychologist 14 (1959): 682–683.
142. Nettler, “Test Burning,” 683.
143. Leonard D. Eron and Leopold O. Walder, “Test Burning: II,” American Psychologist 16: 5 (May 1961): 237–244.
144. On the conservative movement’s animus toward what it termed the “mental testing establishment,” see Lisa McGirr, Suburban Warriors: The Origins of the New American Right (Princeton, NJ: Princeton University Press, 2001); and Michelle M. Nickerson, Mothers of Conservatism: Women and the Postwar Right (Princeton, NJ: Princeton University Press, 2012), 103–135. For a contemporary account, see Donald Robison, “The Far Right’s Fight against Mental Health,” Look (January 26, 1965): 30–32. A study of this phenomenon by psychologists can be found in Richard Schmuck and Mark Chesler, “Superpatriot Opposition to Community Mental Health Programs,” Community Mental Health Journal 3: 4 (Winter 1967): 382–388. Norman Dain traces psychiatry’s critics on the Left and the Right in “Psychiatry and Anti-Psychiatry in the United States,” in Discovering the History of Psychiatry, ed. Mark S. Micale and Roy Porter (New York: Oxford University Press, 1994), 415–444.
145. Nickerson, Mothers of Conservatism, 69–102. A Texas representative from the Daughters of the American Revolution, for example, prepared a list of tests the organization wanted banned, alleging the “possible subversive uses of psychological instruments” and their usefulness to Communists. Nettler, “Test Burning,” 683.
146. Nickerson, Mothers of Conservatism, 128, 105.
147. Eron and Walder, “Test Burning: II,” 237–244.
148. Howard Brick, Age of Contradiction: American Thought and Culture in the 1960s (Ithaca, NY: Cornell University Press, 1998), 23–43.
149. Michael Amrine, “The 1965 Congressional Inquiry into Testing: A Commentary,” American Psychologist 20 (1965): 859–870; quote on p. 859. He noted that on the Right, psychological testing was bundled with attacks on UNESCO, UNICEF, fluoridation and “the mental health conspiracy”; quote on p. 860.
150. Russell Kirk, “Those School Psychological Tests,” National Review (June 30, 1964): 539. See also Edward J. Van Allen, The Branded Child: The School Psyche-Snoops Exposed and What Can be Done about Them (Mineola, NY: Reportorial Press, 1964).
151. Brenton, The Privacy Invaders, 165–166.
152. Editorial, “The Test Flunks Out,” Washington Post, October 4, 1963, p. A20.
153. Monroe H. Freedman, “None of Their Business,” letter to the editor, Washington Post, October 22, 1963, p. A16. For more, see “College Questionnaires about Parents Burned,” Washington Post, October 23, 1963, p. B2; and “Testers to Burn Results of Quiz in County Row,” Washington Evening Star, October 23, 1963.
154. Jacques Barzun, foreword to Hoffman, The Tyranny of Testing, 7–8.
155. Dale Tillery, “Seeking a Balance between the Right of Privacy and the Advancement of Social Research,” Journal of Educational Measurement 4: 1 (Spring 1967): 11–16; quotes on pp. 11, 14, 13.
156. Hoffman, Tyranny of Testing, 214. Hoffman proposed a committee of inquiry into the tests, with, as a minimum concern, the quality of the tests and their makers. “For the benefit of defenseless test-takers, it might well formulate a Bill of Rights, among the provisions of which would surely be that difficulty shall not be achieved by means of ambiguity and vagueness.”
157. Heckscher, “The Invasion of Privacy (II),” 11.
158. Brenton, The Privacy Invaders, 61–62. On lie detectors, see Dwight Macdonald, “The Lie-Detector Era,” The Reporter (June 8, 1954).
159. Gross, The Brain Watchers, 18.
160. The Hawthorne experiments of the 1930s had already turned attention to psychological factors and “morale” in the workplace and had also been subject to some criticism from the Left by those worried about the psychologizing of worker discontent and labor relations more generally; see Gillespie, Manufacturing Knowledge. For critics of employer invasiveness by the later 1960s, see Edward Engberg, The Spy in the Corporate Structure and the Right to Privacy (Cleveland: World, 1967); and Stanley M. Herman, The People Specialists: An Examination of Realities and Fantasies in the Corporation’s View of People, and the Plain and Fancy Specialties and Specialists That Arise Therefrom (New York: Knopf, 1968).
161. Creech, “Psychological Testing and Constitutional Rights,” 335. Surely these “soft” factors were also resorted to in order to cloak more obvious discriminatory intent.
162. Whyte, Organization Man, 108.
163. According to a testing expert, the “first inventory primarily concerned with assessing the individual was the Woodworth Personal Data Sheet,” used during World War I to detect “soldiers likely to break down in combat”; even then it used highly personal questions such as “Do you wet your bed?” Lee J. Cronbach, Essentials of Psychological Testing, 2nd ed. (New York: Harper & Brothers, 1960), 465.
164. See Herman, Romance of American Psychology, 92.
165. Lee J. Cronbach, Essentials of Psychological Testing, 3rd ed. (New York: Harper & Row, 1970), 526.
166. Thomas Chappelear, “ ‘Danger! Pseudo-Psychologist at Work!’: Psychology and Personnel Management in the Postwar Corporation,” unpublished conference paper in author’s possession; Gross, The Brain Watchers, 6–8.
167. Gross, The Brain Watchers, 9.
168. Charles Alex, How to Beat Personality Tests (New York: Arco Publishing, 1966). Alan Westin wryly noted Alex’s takeaway message to be “always selecting the most heterosexual responses to sex questions, showing no cultural interests, and stressing normality in all inter-personal relations.… In regard to ink blots, Alex advises to try to see animals in motion and, above all, to avoid mentioning sex organs.” Privacy and Freedom, 267.
169. Gross, The Brain Watchers, 19–20, 48, 174, 86.
170. Annie Murphy Paul, The Cult of Personality: How Personality Tests Are Leading Us to Miseducate Our Children, Mismanage Our Companies, and Misunderstand Ourselves (New York: Free Press, 2004), 57–59.
171. Gross, The Brain Watchers, 93–94.
172. See Gross, The Brain Watchers, 98–99.
173. Willard Clopton, “Personality X-Rays or Peeping Toms?” Washington Post, July 4, 1965, p. E2.
174. Roderick Buchanan, “The Development of the Minnesota Multiphasic Personality Inventory,” Journal of the History of the Behavioral Sciences 30: 2 (April 1994): 148–161. The interest was in whether the response predicted or had a significant statistical relationship to personal characteristics—or, in the original use of the MMPI, specified clinical conditions.
175. Clopton, “Personality X-Rays or Peeping Toms?” Because the significance of an individual’s MMPI responses was derived from statistical aggregates, the MMPI was “more difficult to fake” than some other personality inventories; it meant that its “subjects would have little idea what their responses might mean.” See Buchanan, “Ink Blots or Profile Plots,” 179.
176. William H. Whyte, “The Fallacies of ‘Personality’ Testing,” in Readings in Psychological Tests and Measurements, ed. W. Leslie Barnette (Homewood, IL: Dorsey, 1964), 312.
177. This was especially true of tests like the “biographical index,” which took successful company executives as the standard and measured test takers responses’ against it. Charged Gross, the tester “sees himself as a self-appointed bastion of normality.” The Brain Watchers, 92.
178. Gross, The Brain Watchers, 78–79.
179. Alan Westin asked, for instance, “whether employers or the government should be allowed to require individuals to have their inner processes probed through … test measurements.” Privacy and Freedom, 134.
180. Whyte, “The Fallacies of ‘Personality’ Testing,” 312.
181. Philip Vernon, Personality Assessment: A Critical Survey (London: Methuen, 1964), 257.
182. Cronbach, Essentials of Psychological Testing, 2nd ed., 459–460. Similarly, two social scientists acknowledged that “some personality tests induce the subject unwittingly to reveal more about himself than he wishes to,” trapping the individual “into making public those facts and feelings about himself or others that he would not wish to disclose.” Oscar Ruebhausen and Orville Brim, “Privacy and Behavioral Research,” Columbia Law Review 65 (November 1965): 1196.
183. Cronbach, Essentials of Psychological Testing, 2nd ed., 459.
184. Wilson, The Man in the Gray Flannel Suit.
185. Whyte, The Organization Man, 405.
186. Jourard, The Transparent Self; as cited in James Neal Butcher and Auke Tellegen, “Objections to MMPI Items,” Journal of Consulting Psychology 30: 6 (1966): 527.
187. Butcher and Tellegen, “Objections to MMPI Items,” 527–534; quote on p. 534. They reported on which items seemed offensive, including 22 percent of those on the Psychopathic Deviate scale and 18 percent of those on the Masculinity-Femininity scale.
188. Butcher and Tellegen, “Objections to MMPI Items,” 529–530, 533.
189. Butcher and Tellegen, “Objections to MMPI Items,” 533–534. They also acknowledged that purging the MMPI of offensive items would not notably “reduce objections in an employment situation.”
190. “The ‘I Love My Mother Tests,’ ” Washington Star, May 19, 1965. Ashbrook as quoted in Westin, Privacy and Freedom, 250. See also John Ashbrook, “Brainpicking in School: A Study of Psychiatric Testing,” Human Events 19: 46 (1962): 883–886.
191. These are representative MMPI items classified by Philip Marks and William Seeman in The Actuarial Description of Abnormal Personality: An Atlas for Use with the MMPI (Baltimore: Williams & Wilkins, 1963, p. 24); adapted in Cronbach, Essentials of Psychological Testing, 3rd ed., 528.
192. Art Buchwald, “A Head Start on Brain Inventory,” Los Angeles Times, June 19, 1965, p. B1.
193. The hearings were on: Psychological Tests and Constitutional Rights (1965); Special Inquiry on Invasion of Privacy (1966); The Computer and Invasion of Privacy (1966). See Cornelius Gallagher, “Why House Hearings on Invasion of Privacy,” American Psychologist 20: 11 (November 1965): 881–882; and Sam J. Ervin Jr., “Why Senate Hearings on Psychological Tests in Government,” American Psychologist 20:11 (November 1965): 879–880.
194. Deborah Nelson charts the “sudden visibility of privacy” and a new and “measureable density” to privacy fears in the 1950s United States in Pursuing Privacy, xi–xii, 6.
195. Brenton, The Privacy Invaders, 171.
196. Alan Westin set out to research and write Privacy and Freedom (1967) to alert Americans to invasions of their privacy, but by the time he completed it, “the need to warn the American public about the threats to personal privacy that had motivated his book no longer existed.” Nelson, Pursuing Privacy, 19.
197. Brenton, The Privacy Invaders, 163.
198. Vance Packard, The Naked Society (New York: D. McKay, 1964).
199. There were dissenting voices—those who argued that Americans’ clamor for privacy was misplaced or symptomatic of other problems—but they were in the distinct minority. See Granville Hicks, “The Invasion of Privacy (III): The Limits of Privacy,” American Scholar 28: 2 (Spring 1959): 185–193; and Margaret Mead, “Our Right to Privacy,” Redbook 124 (April 1965): 15–16.
200. Edward V. Long, The Intruders: The Invasion of Privacy by Government and Industry (New York: Praeger, 1967), 3.
201. Creech, “Psychological Testing and Constitutional Rights,” 336. “Never before in our history has the Government been so concerned with the personalities of its citizens,” he declared.
1. The nonbinding Universal Declaration of Human Rights passed in December 10, 1948.
2. Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, MA: Harvard University Press, 2007), 242.
3. Universal Declaration of Human Rights, Article 12, 1948.
4. Historians of the Declaration make little to no mention of its inclusion of privacy. See for example, Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Declaration of Human Rights (New York: Random House, 2001). Even when Glendon analyzes the Declaration part by part, she skims over the mention of privacy and notes no debate over the article or language; 181–183. Morsink’s discussion of Article 12 indicates that the primary debates involved not the right to privacy, which was assumed, but rather (1) the article’s initial language of inviolability (e.g., was the home truly “inviolable” if there were those who “had every right to enter the home and read the gas meter”?, 136); and (2) the positive vs. negative mode of expression (whether these rights were protected or were simply not to be interfered with). Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 2000), 130–156.
5. According to Samuel Moyn, there existed a general consensus as to the content of the rights; thus, debates centered more on specific language than the spectrum of rights to be included. The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2012), 44–83.
6. According to Carol Anderson, despite the “politics of moral outrage the Holocaust engendered,” the federal government and prominent liberals “steadfastly refused to make human rights a viable force in the United States or in international practice.” Eisenhower and Dulles even announced that human rights declarations “threatened basic liberties protected in the constitution.” Anderson, Eyes off the Prize: The United Nations and the African American Struggle for Human Rights, 1944–1955 (New York: Cambridge University Press, 2003), 4, 6. Moyn too argues that the impact of the Declaration and human rights in the 1940s and for decades after was negligible, vague, and certainly not intended to bind states. He claims that the human rights idea became irrelevant because it could not determine the choice between a welfarist and a communist scheme and thus did not serve as an effective ideological paradigm during the Cold War. The Last Utopia, 44–83. See also Mark Bradley, The World Reimagined: Americans and Human Rights in the Twentieth Century (New York: Cambridge University Press, 2016).
7. Growing numbers of jurists were also inclined to see privacy rights as implicit in the provisions of the Bill of Rights.
8. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).
9. Note that these rulings were not typically concerned with intimate relations, making Griswold an outlier. Michal R. Belknap, The Supreme Court under Earl Warren, 1953–1969 (Columbia: University of South Carolina Press, 2005); Morton J. Horowitz, The Warren Court and the Pursuit of Justice (New York: Hill and Wang, 1998).
10. Bruce J. Schulman, Lyndon B. Johnson and American Liberalism, 2nd ed. (Boston: Bedford/St. Martin’s, 2007), 90. For a helpful discussion of mid-century liberals’ understanding of “qualitative liberalism,” see Kevin Mattson, When America Was Great: The Fighting Faith of Postwar Liberalism (New York: Routledge, 2004), 140–171; and Brian Balogh, “Making Pluralism ‘Great’: Beyond a Recycled History of the Great Society,” in The Great Society and the High Tide of Liberalism, ed. Sidney M. Milkis and Jerome M. Mileur (Amherst: University of Massachusetts Press, 2005), 145–182. James T. Patterson describes a duty-bound consciousness giving way to a rights consciousness in this era, shaped by postwar consumer culture and the promises of personal happiness that it offered, as well as by the postwar civil rights movement. Grand Expectations: The United States, 1945–1974 (New York: Oxford University Press, 1996).
11. Peter Clecak, America’s Quest for the Ideal Self: Dissent and Fulfillment in the 60s and 70s (New York: Oxford University Press, 1983), 6.
12. The flurry of essays on the ruling’s fifty-year anniversary in 2015, including the special issue “Reproductive Rights after Griswold: A Fifty Year Retrospective,” Connecticut History Review 54: 2 (Fall 2015), celebrated its significance for reproductive freedom and for “break[ing] the connection between sex and procreation.” Linda Greenhouse, “From Griswold to Roe and Beyond,” Connecticut History Review 54: 2 (Fall 2015): 275. But recently there has been a recuperation of other meanings of Griswold, with the ruling understood as more than just the starting point of reproductive rights. See, for example, the essays devoted to Griswold in the Yale Law Journal 124 (2015). For the disappointments of Roe and some critique of that narrative, see Linda Greenhouse and Reva B. Siegel, “Before (and after) Roe v. Wade: New Questions about Backlash,” Yale Law Journal 120 (2010–11): 2028–2087.
13. Griswold v. Connecticut, 381 U.S. 479 (1965).
14. The federal Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, also known as the Comstock Act, was made law in 1873; it prohibited sending information about contraceptives and other so-called obscenities through the mail. Connecticut’s statue was one of the many “little Comstock” state laws enacted on its model. By the time the Supreme Court heard the case, birth control remained illegal only in Connecticut and Massachusetts.
15. Barbara Sicherman, “Introduction: Griswold v. Connecticut,” Connecticut History Review 54: 2 (Fall 2015): 256–259. See Helen Lefkowitz Horowitz, Rereading Sex: Battles over Sexual Knowledge and Suppression in Nineteenth-Century America (New York: Alfred A. Knopf, 2002); Donna Dennis, Licentious Gotham: Erotic Publishing and Its Prosecution in Nineteenth-Century New York (Cambridge, MA: Harvard University Press, 2009); Sharon R. Ullman, Sex Seen: The Emergence of Modern Sexuality in America (Berkeley: University of California Press, 1997); and Andrea Tone, Devices and Desires: A History of Contraceptives in America (New York: Hill and Wang, 2001). The Connecticut courts upheld the criminal ban in the 1940s (in Tileson) and 1950s (Poe).
16. Poe v. Ullman, 367 U.S. 497 (1961).
17. Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (Urbana: University of Illinois Press, 2002) and Woman’s Body, Woman’s Right: A Social History of Birth Control in America (New York: Penguin Books, 1977). Rickie Solinger writes that by the late 1920s, fertility control had shifted for many from being a “guilty secret” to a “matter of privacy.” Pregnancy and Power: A Short History of Reproductive Politics in America (New York: New York University Press, 2005), 102. The federal appellate judiciary in 1936 ruled that the Comstock law could not be used to prevent the transport of contraceptives for medical use in United States v. One Package of Japanese Pessaries 86 F.2d 737 (2d Cir.1936). Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 182.
18. Lawrence Friedman, “Review of Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy,” Journal of Interdisciplinary History 37: 1 (Summer 2006): 161–163.
19. See David Allyn, Make Love, Not War: The Sexual Revolution, an Unfettered History (New York: Routledge, 2001). There had also been political advocates for freer sexual expression, most notably the American Civil Liberties Union, which had raised the issue in obscenity, nudism, and censorship cases from the 1930s onward. See Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013).
20. David Allyn, “Private Acts/Public Policy: Alfred Kinsey, the American Law Institute and the Privatization of American Sexual Morality,” Journal of American Studies 30 (1996): 405–428; Nancy Cott, Public Vows, 196.
21. Although most states regulated contraceptives in some fashion, Connecticut’s law was considered the most restrictive in the nation, followed by that of Massachusetts. Donald T. Critchlow, Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America (New York: Oxford University Press, 1999), 59.
22. The Supreme Court mooted three cases in 1961, citing lack of enforcement and stating, “This Court cannot be umpire to debates concerning harmless, empty shadows.”
23. Griswold and Buxton were arrested, convicted, and fined $100 each. David J. Garrow’s is the most trustworthy account of the road to Griswold. See his Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, updated ed. (Berkeley: University of California Press, 1993), 196–269. See also John W. Johnson, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (Lawrence: University Press of Kansas, 2005). Estelle Griswold declared, “We don’t wish to impose birth control on anyone,” but would “welcome prosecution by the state” so that the “absurd and antiquated” 1879 law could be stricken from the books. Garrow, 196.
24. Arthur E. Sutherland, “Privacy in Connecticut,” Michigan Law Review 64: 2 (December 1965): 283–288; quote on p. 285.
25. Johnson, Griswold v. Connecticut, 224.
26. Boyd. v. United States, 116 U.S. 616, 630 (1886).
27. Caroline Danielson argues that DeMay v. Roberts was “the earliest case in the United States explicitly to name a right to privacy.” “The Gender of Privacy and the Embodied Self: Examining the Origins of the Right to Privacy in U.S. Law,” Feminist Studies 25: 2 (1999): 311–344, quote on p. 311. Danielson raises a number of intriguing issues regarding alternative lineages for the legal right to privacy in the United States, including, in this early instance, the gendering and embodying of privacy rights in the form of a woman delivering a child.
28. According to Charles Reich, the first statement regarding the special sanctity of a private residence was in Agnello v. United States (1925): “the search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.” “Midnight Welfare Searches and the Social Security Act,” Yale Law Journal 72 (1963): 1354.
29. Olmstead v. U.S., 227 U.S. 438 (1928).
30. 262 U.S. 390 (1923); 268 U.S. 510 (1925). Martha Minow has argued, however, that these cases are part of an “invented tradition of continuous constitutional protection for the family” that is quite contradictory and as much about regulation as protection. “We, the Family: Constitutional Rights and American Families,” Journal of American History 74: 3 (1987): 962.
31. In 1944, although in a case that affirmed the power of the state over the parent, Prince v. Massachusetts, the Court acknowledged the existence of constitutional protections for a “private realm of family life which the state cannot enter.”
32. These were On Lee v. US (1952), regarding a federal agent gathering incriminating testimony via a concealed radio transmitter; Beauharnais v. Illinois (1952), on free expression; and Public Utilities Commission v. Pollak (1952), on the right to privacy from music on streetcars.
33. Anita L. Allen views the case’s holding—that “Alabama could not compel revelation of the names and addresses of NAACP members”—as central to the development of data privacy. See her “Associational Privacy and the First Amendment: NAACP v. Alabama, Privacy and Data Protection,” Alabama Civil Rights and Civil Liberties Law Review 1 (2011): 1–13; quote on p. 7. Deborah Nelson writes that in NAACP v. Alabama, the Court broke its “thirty-six-year refusal to establish a right to privacy by concluding that a political organization had the right to keep its membership private.” Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002), 280–281.
34. John Johnson bundles all of these together as “tantalizing references to privacy emanations from the fringes of the Bill of Rights”; see Griswold v. Connecticut, 71–76; quote on p. 71.
35. William L. Prosser, “Privacy,” California Law Review 48: 3 (August 1960): 383–423. Prosser’s essay was an influential attempt to catalog and classify privacy damages into four distinct torts.
36. ACLU leaders suggested as early as 1932 that laws against birth control might be unconstitutional because of due process rights; as with the case of Prohibition, attempts to suppress birth control devices and literature involved unlawful searches and seizures. Wheeler, How Sex Became a Civil Liberty, 53.
37. See Wheeler, How Sex Became a Civil Liberty, ch. 4. Sanger in the 1940s viewed civil liberties as encompassing not just freedom of press, speech, and worship but also the “right of free men and free women to control … their own destiny on earth,” 96. The ACLU was slow to adopt this interpretation, maintaining throughout the 1950s that civil liberties applied only to the dissemination of birth control information.
38. Wheeler, How Sex Became a Civil Liberty, 103.
39. Garrow, Liberty and Sexuality, 196.
40. I thank Leigh Ann Wheeler for pointing me to this image; see How Sex Became a Civil Liberty, 97.
41. Wheeler, How Sex Became a Civil Liberty, 103.
42. In his Poe dissent, Harlan wrote that the plaintiffs’ “most substantial claim … is their right to enjoy the privacy of their marital relations.”
43. Garrow, Liberty and Sexuality, 245. Jamal Greene explains that Douglas’s first draft had “treated the intimacies of the marital relationship as protected by the First Amendment right of association.” “The So-Called Right of Privacy,” University of California, Davis Law Review 43 (2010): 715–747, quote on p. 722.
44. Donald Critchlow calls the first draft of the opinion “lackadaisical” and notes that Douglas’s attempt to derive the right to use contraceptives from the First Amendment freedom of assembly was met by Justice Hugo Black’s objection that “the right of a husband and wife to assemble in bed is a new right of assembly to me.” It was at that point that a law clerk, Paul Posner, suggested that the statue violated the right to privacy implied in the Third, Fourth, and Fifth Amendments. Intended Consequences, 59. Garrow notes that Justice Brennan pushed Douglas to argue for a right of privacy. Liberty and Sexuality, 246.
45. See Gary Gerstle’s discussion of the Court’s broader move to “break the power of the states” in the 1960s in areas of marriage, religion, voting, and the like. Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton, NJ: Princeton University Press, 2015), ch. 9.
46. On the novelty of invoking the Ninth Amendment, see for example, “Constitutional Law: Supreme Court Finds Marital Privacy Immunized from State Intrusion as a Bill of Rights Periphery,” Duke Law Journal 1966: 2 (Spring 1966): 562–577.
47. Del Dickson, ed., The Supreme Court in Conference, 1940–1985: The Private Discussions behind Nearly 300 Supreme Court Decisions (New York: Oxford University Press, 2001), 800. Justice Clark was more certain, saying, “There is a right to marry, to have a home, and to have children.… This is an area where I have the right to be let alone,” 801.
48. Garrow, Liberty and Sexuality, 249.
49. Emerson named five possibilities: equal protection, the First Amendment, substantive due process, right of privacy, and the Ninth Amendment. “Nine Justices in Search of a Doctrine,” Michigan Law Review 64: 2 (December 1965): 219–234; quote on p. 220.
50. Emerson claimed after the fact that the statute “invaded the sacred realm of marital privacy, and for all practical purposes denied to married couples the right of deciding whether or when to have children.” “Nine Justices in Search of a Doctrine,” 219.
51. The population control argument in particular was forceful in the mid-1960s. As Emerson saw it, the Connecticut statute “was fantastically in conflict with the clearly perceived need to deal with the world’s second most critical problem—the population explosion” (he did not say what the first problem was). “Nine Justices in Search of a Doctrine,” 219. See Matthew Connelly, Fatal Misconception: The Struggle to Control World Population (Cambridge, MA: Belknap Press of Harvard University Press, 2008); and Alison Bashford, Global Population: History, Geopolitics, and Life on Earth (New York: Columbia University Press, 2014), 305–327.
52. Emerson, “Nine Justices in Search of a Doctrine,” 219.
53. Robert G. Dixon Jr., “Griswold Penumbra: Constitutional Charter for an Expanded Law of Privacy,” Michigan Law Review 64: 2 (December 1965): 215. He noted that “privacy was handled only in the fictional context of bedroom invasion.”
54. Melissa Murray argues that the Trubek case framed birth control as centrally about women’s equal citizenship—a “precondition for structuring marriage along more egalitarian lines” and also for a woman’s career—even as it also spoke to marital privacy. “Overlooking Equality on the Road to Griswold,” Yale Law Journal 124 (2014–2015).
55. Cary Franklin, “Griswold and the Public Dimension of the Right to Privacy,” Yale Law Journal 124 (2014–2015). Franklin argues that Griswold was “part of a series of Warren Court decisions that suggested the Constitution, properly understood, was concerned with certain forms of material deprivation and material injustice”—and thus “the way Griswold has been categorized and canonized” as a reproductive rights case has obscured other sorts of issues at play in 1965.
56. Quotations are from the analysis provided in Dickson, Supreme Court in Conference, 802.
57. Griswold v. Connecticut, 509. Garrow, Liberty and Sexuality, 255. Stewart also failed to find a constitutional guarantee that the law infringed.
58. Freedom from the government is, of course, one of the classic or “natural” American constitutional rights, but as Mary Ziegler has suggested to me, privacy in the more expansive sense may not have aligned well with these sorts of rights.
59. Dixon Jr., “Griswold Penumbra,” 199.
60. Garrow, Liberty and Sexuality, 263.
61. The relationship between public aspirations and law is explored in the literature on popular constitutionalism. See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004); Robert Post and Reva Siegel, “Popular Constitutionalism, Departmentalism, and Judicial Supremacy,” California Law Review 92 (2004): 1027–1043; and David Cole, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (New York: Basic Books, 2016).
62. Griswold v. Connecticut, 485.
63. See Marc Stein, Sexual Injustice: Supreme Court Decisions from Griswold to Roe (Chapel Hill: University of North Carolina Press, 2010), 30.
64. Dixon Jr., “Griswold Penumbra,” 218. He called this playing “charades with the Constitution.”
65. Glendon, Rights Talk, 56. She writes that there was “nothing in Griswold to suggest privacy as individual right.” Instead, “Griswold seemed at the time merely to consolidate … the kind of protection for marriage and family life that, by 1965, was the subject of express provisions in more modern constitutions.”
66. Cott, Public Vows, 197–198.
67. On state economic support for marriage, see Cott, Public Vows; and Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (New York: Oxford University Press, 2001).
68. See Deborah Weinstein, The Pathological Family: Postwar America and the Rise of Family Therapy (Ithaca, NY: Cornell University Press, 2013).
69. Franklin, “Griswold and the Public Dimension of the Right to Privacy.”
70. See, for example, Rickie Solinger, Wake Up Little Susie: Single Pregnancy and Race before Roe v. Wade (New York: Routledge, 1992); and Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009). Peggy Pascoe examines intricate state laws that grew up in the years after Reconstruction to ban various combinations of white-other marriages, which increasingly restricted even privileged white men’s liberty to choose a spouse. What Comes Naturally: Miscegenation Law and the Making of Race in America (Oxford: Oxford University Press, 2009).
71. Solinger, Pregnancy and Power, 63. On the other hand, she notes in reference to the decriminalization of condom use during World War I the “cultural recognition that sexual intercourse, at least for white males (at least those serving their country), was a private act,” 98. Condoms were also readily available in Connecticut at this time: at issue in Griswold was female contraception and poor women’s access to birth control. See Tone, Devices and Desires.
72. Leslie J. Reagan’s study of abortion during the criminal era reveals how poor women’s bodies and decisions about their bodies were often the objects of public scrutiny, whereas women of means could, for example, keep abortions private. Reagan also documents how the state built and retained its power to intervene into the lives of women through reproductive regulation, sometimes in concert with physicians. When Abortion Was a Crime: Women, Medicine, and Law in the United State, 1867–1973 (Berkeley: University of California Press, 1997). See also Khiara M. Bridges, The Poverty of Privacy Rights (Stanford, CA: Stanford University Press, 2017), which argues that poor mothers in particular have been denied privacy rights by the state.
73. See Rhonda Y. Williams, The Politics of Public Housing: Black Women’s Struggles against Urban Inequality (New York: Oxford University Press, 2004).
74. Reich, “Midnight Welfare Searches and the Social Security Act”; Solinger, Pregnancy and Power, 147. As she notes, protection against search and seizure was a racial and class benefit.
75. Stein, Sexual Injustice, 77. Noting that U.S. law supported the deportation of homosexual aliens in this era, he writes that such men “were not just excluded from the privileges of privacy; they were subject to the demands of compulsory publicity.”
76. The Court, Stein argues, “constructed normative heterosexuality, non-normative heterosexuality, and deviant homosexuality in dynamic and hierarchical relationships to one another,” Sexual Injustice, 18.
77. Griswold v. Connecticut, 498–499; 505–507; Stein, Sexual Injustice, 29–34.
78. This remained true in Eisenstadt v. Baird of 1972, which was often hailed as extending sexual liberty to single adults. Although it struck down a birth control ban aimed at the unmarried, it was decided narrowly, not on grounds of privacy but of equal protection: single people were deemed to have been treated differently as a class than married ones under the law in question. The Court, in Marc Stein’s words, did not endorse libertarian notions about the freedom of consenting adults in private, but rather “special rights and privileges for adult, heterosexual, marital, monogamous, private, and procreative forms of sexual expression.” Sexual Injustice, 18. This regime of heterosexual and reproductive normativity would not end until 2003, when the landmark Lawrence v. Texas was handed down, striking down anti-sodomy laws. See also Michael J. Karman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York: Oxford University Press, 2013).
79. Most recently, Griswold was cited in Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015), which recognized same-sex marriage as constitutionally protected.
80. Cott, Public Vows, 199.
81. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972): “The marital couple is not an independent entity with a mind and a heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.” Mary Ann Glendon argues that it was at this moment, in 1972, that the Court “abruptly severed the privacy right from its attachment to marriage and the family and launched it as a full-fledged individual right.” Rights Talk, 57; emphasis in original. This was the moment that marked a shift from privacy as freedom from surveillance or disclosure to the freedom to engage in certain activities and make choices without government interference.
82. Roe v. Wade, 410 U.S. 113 (1973); although note that Roe spoke to a joint right of the “woman and her doctor.” Deborah Nelson observes that this expansion of the right was also its first contraction, which she links to its gendering as female. See “Beyond Privacy: Confessions between a Woman and Her Doctor,” Feminist Studies 25: 2 (Summer 1999): 279–306. Nelson explains elsewhere that “Griswold’s zone of privacy quickly expanded beyond the home and domestic autonomy” to encompass the right to personal decision-making. Pursuing Privacy in Cold War America, 20. This tilt toward protecting “choices central to personal dignity and autonomy” would persist in the Court’s later jurisprudence around reproductive rights, notably in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992).
83. Some attorneys thought it might be possible to use Roe or Eisenstadt or Griswold outside the context of sexuality and reproduction, especially until the later 1970s. See Mary Ziegler, After Roe: The Lost History of The Abortion Debate (Cambridge, MA: Harvard University Press, 2015). The coupling of privacy and reproductive rights also subjected all those cases to critique, famously by Judge Robert Bork, who called Griswold an “unprincipled” usurpation of democratic authority unauthorized by the Constitution’s text.
84. Vincent Vecera writes that while “discussion of public health did not disappear immediately … the rise of a language of rights was stark and sudden.” He argues that “as the conception of an abortion right founded on privacy rose to rhetorical dominance during the 1970s, advocates found themselves writing of an abortion decision no longer made in consultation with a physician but instead by a lone woman, in the privacy not of a medical office but instead the solitude of her conscience.” It meant that abortion advocates’ arguments “came to be situated in three rhetorical frameworks: privacy, choice, and autonomy.” “The Supreme Court and the Social Conception of Abortion,” Law & Society Review 48 (2014): 345–374.
85. As Mary Zeigler writes, “The legal academy has not been kind to the privacy rationale set forth in Roe v. Wade.” “The Price of Privacy, 1973 to the Present,” Harvard Journal of Law & Gender 37: 2 (2014): 285–329; quote on p. 285. Most writers have argued that reliance on liberty or equality, rather than privacy, would have garnered better and less “political” results. Justice Ruth Bader Ginsberg has memorably suggested that the privacy claim was an error. Reva B. Siegel has instead suggested that the very fact that privacy is “one of the most fiercely contested rights in the modern constitutional canon” has “helped to entrench the right to privacy, to make it endure, and to imbue it with evolving meaning.” “How Conflict Entrenched the Right to Privacy,” Yale Law Journal 124 (2014–2015).
86. Johnson, Griswold v. Connecticut, 4. This trajectory may have come to an end. As Jamal Greene argues in “The So-Called Right of Privacy,” “privacy” has been abandoned by the Court in recent decisions on these topics, in favor of “liberty.” Jill Lepore has also suggested that reproductive rights based on privacy arguments and gay rights based on equality arguments have diverged, with gay rights in much better shape for forsaking the privacy strategy. “To Have and To Hold: Reproduction, Marriage, and the Constitution,” New Yorker (May 25, 2010).
87. Johnson, Griswold v. Connecticut, 206.
88. Quoted in Stein, Sexual Injustice, 211.
89. Paul G. Kauper, “Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case,” Michigan Law Review 64: 2 (December 1965): 235–258; quote on p. 258.
90. Robert B. McKay, “The Right of Privacy: Emanations and Intimations,” Michigan Law Review 64: 2 (December 1965): 63–86; quote on p. 77.
91. Dixon Jr., “Griswold Penumbra,” 205.
92. Emerson, “Nine Justices in Search of a Doctrine,” 233.
93. Dixon Jr., “Griswold Penumbra,” 197.
94. Harry Kalven Jr., “Privacy in Tort Law—Were Warren and Brandeis Wrong?” Law and Contemporary Problems 31: 2 (1966): 326–341; quote on p. 327.
95. Clark C. Havighurst, foreword, Law and Contemporary Problems 31: 2 (1966): 251.
96. Glenn Negley, “Philosophical Views on the Value of Privacy,” Law and Contemporary Problems 31: 2 (1966): 319–325; quote on p. 320.
97. William M. Beaney, “The Right to Privacy and American Law,” Law and Contemporary Problems 31: 2 (1966): 253–271; quotes on pp. 255, 258–259.
98. Dixon Jr., “Griswold Penumbra,” 202, n. 22.
99. Emerson, “Nine Justices in Search of a Doctrine,” 229.
100. Beaney, “The Right to Privacy and American Law,” 271. As Edward Shils put it in the same issue, “Privacy has become a problem because it has become engulfed in the expansion of the powers and ambitions of elites and in the difficulties that they encounter in attempting to govern and protect and please vast collectivities.” “Privacy: Its Constitution and Vicissitudes,” Law and Contemporary Problems 31: 2 (1966): 281–306; quote on p. 305.
101. Negley, “Philosophical Views,” 320.
102. Beaney in fact discounted the importance of the 1890 essay for forwarding privacy as a right, believing it had not “effected any significant change in American life.” In his view, “The approximately 350 decisions handed down between 1905 and 1965, many of them under New York’s statute prohibiting intrusive conduct ‘for the purposes of trade,’ have had the effect of proscribing some of the more blatant, thoughtless, or intentional invasions of privacy, especially where a materialistic motive is evident, but we can only speculate as to a possible wider social effect of the right.” “The Right to Privacy and American Law,” 258.
103. Milton R. Konvitz, “Privacy and the Law: A Philosophical Prelude,” Law and Contemporary Problems 31: 2 (1966): 272–280; quotes on pp. 277, 279–280.
104. Shils, “Privacy: Its Constitution and Vicissitudes,” 286.
105. Few in the 1960s and early 1970s “mentioned abortion at all in the context of the right of privacy.” Johnson, Griswold v. Connecticut, 197. The case for a link between Griswold and abortion rights is often attributed to an influential 1968 essay by Roy Lucas: “Federal Constitutional Limitations on the Enforcement and Administration of State Abortion Statutes,” North Carolina Law Review 46 (June 1968): 730–778.
106. Johnson, Griswold v. Connecticut, 196–197.
107. Emerson, “Nine Justices in Search of a Doctrine,” 232.
108. Stein, Sexual Injustice, 208. He argues that a kind of popular constitutionalism wound up reshaping these decisions so that even the Court would misread its earlier rulings by the time Lawrence v. Texas was decided in 2003. Distorted reportage and the commentary of many legal scholars, lower courts, and even the gay and lesbian media, eager to see the Court as a protector and supporter of sexual rights, all presented a more sexually liberal view.
109. Stein, Sexual Injustice, 217.
110. McKay, “The Right of Privacy: Emanations and Intimations,” 82–83.
111. Beaney, “The Right to Privacy and American Law,” 256.
112. W. T. R., III, “The Fourth Amendment Right of Privacy: Mapping the Future,” Virginia Law Review 53: 6 (October 1967): 1315.
113. Charles A. Reich, “Police Questioning of Law Abiding Citizens,” Yale Law Journal 75: 7 (1966): 1170.
114. Olmstead v. United States, 277 U.S. 438 (1928). In 1933, Congress banned wiretapping in Volstead Act investigations; a 1934 Act of Congress formally prohibited the interception and divulging of telephone communications. See Samuel Dash, Richard Schwartz, and Robert Knowlton, The Eavesdroppers (New Brunswick, NJ: Rutgers University Press, 1959), 386–389.
115. “Constitutional Law: Supreme Court Finds Marital Privacy Immunized from State Intrusion as a Bill of Rights Periphery,” Duke Law Journal 1966: 2 (Spring 1966): 577 and n. 62 on that page. He noted prohibitions against miscegenation as well.
116. Emerson, “Nine Justices in Search of a Doctrine,” 232–233.
117. Lopez v. United States 373 U.S. 427 (1963), concurring opinion. The case concerned a cabaret owner whose bribe of an Internal Revenue Agent was captured on that agent’s “pocket wire recorder.”
118. Sidney E. Zion, “Wiretap v. Privacy: Court’s Recent Ruling on Birth Control Seen as Wedge against Eavesdropping,” New York Times, June 15, 1965, p. 25.
119. A California court in 1970, for example, invoked Griswold to support the right of a psychiatrist to refuse to provide evidence about a patient, noting that “the retention of a degree of intimacy in interpersonal relations and communications lies at the heart of the broad rationale of Griswold.” Stein, Sexual Injustice, 237.
120. McKay, “The Right of Privacy: Emanations and Intimations,” 278.
121. Zion, “Wiretap v. Privacy,” 25. Others were certain the case would have an impact on wiretapping and electronic eavesdropping, and, perhaps, data gathering by computers. See Beaney, “The Right to Privacy and American Law,” 196.
122. FBI agents “attached a [stereophonic] tape recorder on top of the roof of the middle telephone booth” he frequented on Sunset Boulevard. See David A. Sklansky, “Katz v. United States: The Limits of Aphorism,” in Criminal Procedure Stories, ed. Carol S. Steiker (New York: Foundation Press, 2006), 223–260; quote on pp. 223–224.
123. As Sklansky observes, the attorneys for Katz made the point that the physical location of communication was a factor, but only one among several other factors, in assessing its intended confidentiality. “The point of the Fourth Amendment was to protect ‘the right to privacy,’ and that right ‘follow[ed] the individual.’ … Equally if not more important was ‘the activity engaged in by the enforcement officer’—the lengths to which the officer had to go in order to overhear the conversation.” “Katz v. United States,” 243.
124. As Lawrence Lessig writes of the case, “In the framers’ context of 1791, protecting against trespass to property was an effective way to protect against trespass to privacy, but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was conducted in places where property rules did not reach (in the ‘ether,’ for example, of the AT&T telephone network),” Code: And Other Laws of Cyberspace, Version 2.0 (New York: Basic Books, 2006), 164. See also Orin S. Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” Michigan Law Review 102: 5 (2004): 801–888.
125. John Neary, “The Big Snoop: Electronic Snooping: Insidious Invasions of Privacy,” Life (May 20, 1966): 38–43.
126. The bugged martini olive appeared in sources from Life magazine, to the Los Angeles Times (Arthur Miller, “The Computer Threat to Privacy,” July 20, 1969, p. F7), to Senator Edward V. Long, The Intruders: The Invasion of Privacy by Government and Industry (New York: Praeger, 1967), photo after p. 54.
127. John Neary, “On an Assignment with the Ace of the Bugging Business,” Life (May 20, 1966): 44–47.
128. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), ch. 8.
129. Westin, Privacy and Freedom, 69–80. Westin attributed the accelerating use of such devices to the booming private-detective trade since World War II, the marketing of voyeurism, and a culture enamored of “Superspy and scientific wizardry,” 90, 98, 101. Myron Brenton offered a similar laundry list in The Privacy Invaders (New York: Coward-McCann, 1964), 9.
130. See Sklansky, “Katz v. United States,” 223–224.
131. His remarks came in lectures at the University of Kansas School of Law on September 26 and 27, 1974, which were then written up in William H. Rehnquist, “Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement? Or: Privacy, You’ve Come a Long Way, Baby,” University of Kansas Law Review (1974): 1–23. See also “Rehnquist on Privacy,” Privacy Journal 1: 1 (November 1974): 4; and Christopher Slobogin, “Rehnquist and Panvasive Searches,” Mississippi Law Journal 82: 2 (2013): 310–311.
132. Naomi Murakawa argues that conservative versions of law and order but also racial liberal ones (“liberal law-and-order”) solidified the criminalization of race and built the carceral state. This would defeat or limit many of the Warren Court reforms. The First Civil Right: How Liberals Built Prison America (New York: Oxford University Press, 2014), 2. See also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010); Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016); and Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and its Legacy (New York: Pantheon, 2016).
133. See Shils, “Privacy: Its Constitution and Vicissitudes,” 291, 301; Arthur Selwyn Miller, “Privacy in the Corporate State: A Constitutional Value of Dwindling Significance,” Journal of Public Law 22: 3 (1973): 3–35; and Barry Schwartz, “The Social Psychology of Privacy,” American Journal of Sociology 70 (May 1968): 743.
134. Beaney, “The Right to Privacy and American Law,” 261–262.
135. Rebecca Zietlow describes these rights as ones that “promote an inclusive vision of who belongs to the national community and facilitate equal membership.” “The Judicial Restraint of the Warren Court (and Why It Matters),” Ohio State Law Journal 69: 2 (2007): 255–301; quote on p. 257.
136. In her study of challenges to vagrancy laws and the regulating of people “out of place,” for example, legal historian Risa Goluboff argues that the Court’s decisions in this era were “part of a process of dismantling the criminal law as a method of social control,” effectively constitutionalizing a “new pluralism.” Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (New York: Oxford University Press, 2016), 329–330.
137. This set of developments is often termed the “modern criminal procedure revolution,” with key cases including: Mapp v. Ohio (1961), Brady v. Maryland (1963), Gideon v. Wainwright (1963), Escobedo v. Illinois (1964), Miranda v. Arizona (1966), and United States v. Wade (1967). See A. Kenneth Pye, “The Warren Court and Criminal Procedure,” Michigan Law Review 67 (1966): 249–268. See also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980). Legal historians have begun to reassess the “rights revolution” narrative, either by suggesting that the courts recognized some rights much earlier than we think or by arguing that the importance of the protections created by the Warren Court have been overstated.
138. On the sensibility and rhetoric of the New Left, see Doug C. Rossinow, The Politics of Authenticity: Liberalism, Christianity, and the New Left in America (New York: Columbia University Press, 1998).
139. Boston Women’s Health Book Collective, Our Bodies, Ourselves: A Book by and for Women (Boston: Women’s Health Collective, 1971). See Jennifer Nelson, More than Medicine: A History of the Feminist Women’s Health Movement (New York: New York University Press, 2015). A similar impulse lay behind the health clinics established by the Black Panthers. Alondra Nelson, Body and Soul: The Black Panthers and the Fight against Medical Discrimination (Minneapolis: University of Minnesota Press, 2011). Edward Berkowitz documents the way minorities, women, and individuals with disabilities recalibrated their interactions with the medical establishment, writing that “in general, people felt more free to challenge doctors in the seventies than they had in the postwar era.” Something Happened: A Political and Cultural Overview of the Seventies (New York: Columbia University Press, 2006), 8–9.
140. Lt. Colonel Arthur A. Murphy, “The Soldier’s Right to a Private Life,” Military Law Review (Dept. of the Army Pamphlet), 27–100–24 (April 1964): 97–99.
141. At issue were warrantless searches of GIs’ surroundings and bodies for drug use in the U.S. Army European Command; the court upheld those searches. As far as reasonable expectations of privacy, the court ruled, “military inspections have been traditionally accepted and are expected by soldiers.” Committee for GI Rights v. Callaway, No. 74–1285 (September 2, 1975).
142. Paul Ramsey, The Patient as Person: Explorations in Medical Ethics (New Haven, CT: Yale University Press, 1970), xiii. There was a precedent in earlier twentieth-century movements to restore the study of the “patient as a person,” in reaction to the perceived depersonalization of scientific medicine. George Rosen, “Approaches to a Concept of Social Medicine: A Historical Survey,” Milbank Memorial Fund Quarterly 26: 1 (1948): 7.
143. Dorothy W. Smith, “Patienthood and Its Threat to Privacy,” American Journal of Nursing 69: 3 (March 1969): 508–513; quote on p. 509.
144. Smith, “Patienthood and Its Threat to Privacy,” 509–510, 513.
145. Smith, “Patienthood and Its Threat to Privacy,” 510–511.
146. American Hospital Association, “Patient Bill of Rights,” adopted 1973.
147. Albert M. Bendich, “Privacy, Poverty, and the Constitution,” California Law Review 54: 2 (May 1966): 407–442; quotes on pp. 414, 440–441; emphasis in original.
148. McKay, here quoting William Ball, “The Right of Privacy: Emanations and Intimations,” 281. Emerson wrote that “the whole field of social welfare legislation and administration may be forced into procedures and practices more compatible with human dignity and integrity.” “Nine Justices in Search of a Doctrine,” 233.
149. At the very least, it paved the way for a good deal of scholarship on poverty and privacy. See John Gilliom, Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy (Chicago: University of Chicago Press, 2001); Christopher Slobogin, “The Poverty Exception to the Fourth Amendment,” University of Florida Law Review 55 (2003): 391–412; and Bridges, The Poverty of Privacy Rights.
150. See Charles Reich, “The New Property,” Yale Law Journal 73: 5 (1964): 733–787. The title reveals how indebted privacy still was to property rights, perhaps especially regarding the poor who do not have “personal rights.”
151. Charles Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” Yale Law Journal 74 (1965): 1245, 1246.
152. Reich, “Individual Rights and Social Welfare,” 1254, 1256. He argued that although Griswold was “a major forward step, the law has not yet developed a constitutional theory of privacy fully adequate to the present-day interdependent world.” See William E. Forbath, “Constitutional Welfare Rights: A History, Critique and Reconstruction,” Fordham Law Review 69: 5 (2001): 1821–1891.
153. Reich looked to Frank v. Maryland (1959), a case that concerned health inspectors investigating homes for unsanitary conditions without a warrant. The Court upheld the law (5–4) in part because it made “the least possible demand on the individual occupant” and caused “only the slightest restriction on his claims of privacy,” 1350. Reich believed that it could not apply to welfare searches that frequently came with the very “midnight knock on the door” that the Frank ruling had condemned.
154. Reich, “Midnight Welfare Searches and the Social Security Act,” 1355.
155. Reich, “Midnight Welfare Searches and the Social Security Act,” 1359. Reich’s concern was that growing dependence on government enabled state coercion, the price of government largesse coming in the form of restrictions on speech, association and privacy. See William H. Simon, “The Invention and Reinvention of Welfare Rights,” Maryland Law Review 44: 1 (1985): 23–28.
156. See Williams, The Politics of Public Housing, 155–228; Premilla Nadasen, Welfare Warriors: The Welfare Rights Movement in the United States (New York: Routledge, 2005); Annelise Orleck, Storming Caesars Palace: How Black Mothers Fought Their Own War on Poverty (Boston: Beacon Press, 2005); Felicia Kornbluh, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007); and Karen M. Tani, States of Dependency: Welfare, Rights, and American Governance, 1935–1972 (New York: Cambridge University Press, 2016), 113–150.
157. Williams, The Politics of Public Housing, 6.
158. Between 1964 and 1966, the rule had resulted in the removal of 15,000 black children from the rolls and the rejection of another 6,400; 97 percent of the children were black. Tani, States of Dependency, 261. See the discussion of the case in Kornbluh, The Battle for Welfare Rights, 67–68.
159. Walter Goodman, “The Case of Mrs. Sylvester Smith: A Victory for 400,000 Children,” New York Times Magazine (August 25, 1968): 28.
160. In fact, Smith argued that she was being punished for her sexual behavior as well as her political views.
161. King v. Smith, 392 U.S. 309 (1968); Goodman, “The Case of Mrs. Sylvester Smith.” Kornbluh explains that “the Court ruled based on the regulations themselves, and not on constitutional grounds.” The Battle for Welfare Rights, 67–68.
162. Goodman, “The Case of Mrs. Sylvester Smith.”
163. Kornbluh, for example, suggests that other welfare activists staked out claims to “sexual privacy” as well and that it would no longer be routine by the late 1960s for welfare departments to catalog clients’ sexual behavior or make decisions based on it, at least formally. The Battle for Welfare Rights, 71–73.
164. Kornbluh, The Battle for Welfare Rights, 79.
165. Joel F. Handler and Margaret K. Rosenheim, “Privacy in Welfare: Public Assistance and Juvenile Justice,” Law and Contemporary Problems 31: 2 (1966): 377–412; quotes on p. 377. While they examined the “suitable-home” policy and bedroom prying under AFDC, their focus was more on the information procured to administer these programs than on the raids themselves.
166. Handler and Rosenheim, “Privacy in Welfare,” 378. Indeed, they believed that “tension between insistence on detailed punitive eligibility procedures and emphasis on elevation of public support programs to the position of ‘rights’ is inevitable.” See Gilliom, Overseers of the Poor, on this point.
167. Handler and Rosenheim, “Privacy in Welfare,” 379. They noted further that money payments, rather than food stamps or other badges of relief, were therefore “highly valued in any welfare scheme that strives to protect the privacy of the poor.”
168. Handler and Rosenheim, “Privacy in Welfare,” 391.
169. Handler and Rosenheim, “Privacy in Welfare,” 404, 406, 410. For an instructive parallel from the early twentieth century, see Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (New York: Cambridge University Press, 2003). Willrich writes that the result of the effort to “humanize” criminal justice for the poor “was often an intensified scrutiny and control of individual offenders and their families rather than the radical reconstruction of society that Progressive ideology at times seemed to demand,” 320.
170. For an influential treatment of the tension between Fourth Amendment privacy and the state’s need to gather information for regulatory purposes, see William J. Stuntz, “Privacy’s Problem and the Law of Criminal Procedure,” Michigan Law Review 93: 5 (1995): 1016–1078. He notes that “a privacy value robust enough to restrain the police should also prevent a great deal of government activity that we take for granted—activity that, at least since the New Deal, is unquestionably constitutional,” 1017.
171. Warren W. Willingham, foreword to “Forum on Invasion of Privacy in Research and Testing,” Journal of Educational Measurement 4: 1 (Spring 1967): 1; he expected continuing tension between “the desire to minimize personal distinctions (which protects privacy) and to equalize opportunity (which requires investigation of inequality” (1). Giving substance to civil rights, in other words, could entail novel ways of keeping track of them. See David A. Hollinger, Post-Ethnic America: Beyond Multiculturalism (New York: Basic Books, 1995; 2000), 19–50; and John D. Skrentny, The Minority Rights Revolution (Cambridge, MA: Belknap Press of Harvard University Press, 2002).
172. Legal scholar Robert McKay noted the irony that a contraceptive launched the right, since its “very existence was little recognized in the polite society whose privacy Brandeis and Warren sought to protect.” “The Right of Privacy: Emanations and Intimations,” 64.
173. Glendon, Rights Talk, 48. She sees this as not new, but as an old and deep aspect of American legal and popular culture.
174. My thanks to Mary Ziegler for these points.
1. Edward Shils, “Social Inquiry and the Autonomy of the Individual,” in The Human Meaning of the Social Sciences, ed. Daniel Lerner (New York: Meridian, 1959), 117. “In 1950 … the suggestion of having a fellow-psychologist pose as a patient in a group therapy situation, so that the therapy process might be studied with greater control, gave one an uneasy feeling.” But in 1966, it was “almost de rigueur.” Erasmus L. Hoch, “The Privacy Issue and a Professional Response at the Departmental Level,” Journal of Educational Measurement 4: 1 (Spring 1967): 18.
2. Shils, “Social Inquiry and the Autonomy of the Individual,” 117. Elsewhere Shils wrote, “What was once prurience and voyeurism has now become ‘scientific curiosity.’ What was once ‘exhibitionism’ is now cooperation in ‘scientific research.’ What was once regarded as the subject of ‘blue films’ and ‘circuses’ is now called a ‘research situation.’ The result is the same—an invasion of personal privacy of an extreme character, more elaborate and naturally better documented than its pre-‘scientific’ predecessors.” “Privacy: Its Constitution and Vicissitudes,” Law and Contemporary Problems 31: 2 (1966): 299.
3. John M. Shlien, “Mental Testing and Modern Society,” in Readings in Psychological Tests and Measurements, ed. W. Leslie Barnette (Homewood, IL: Dorsey, 1964), 343.
4. In the same vein were Edward Gross, “Social Science Techniques: A Problem of Power and Responsibility,” Scientific Monthly 83: 5 (1956): 242–247; and Margaret Mead, “The Human Study of Human Beings,” Science 133 (January 20, 1961): 163.
5. See Julie A. Reuben, The Making of the Modern University: Intellectual Transformation and the Marginalization of Morality (Chicago: University of Chicago Press, 1996); Rebecca S. Lowen, Creating the Cold War University: The Transformation of Stanford (Berkeley: University of California Press, 1997); Margaret O’Mara, Cities of Knowledge: Cold War Science and the Search for the Next Silicon Valley (Princeton, NJ: Princeton University Press, 2005); Christopher P. Loss, Between Citizens and the State: The Politics of American Higher Education in the Twentieth Century (Princeton, NJ: Princeton University Press, 2012); Hamilton Cravens and Mark Solovey, eds., Cold War Social Science: Knowledge Production, Liberal Democracy, and Human Nature (New York: Palgrave Macmillan, 2012); and Mark Solovey, Shaky Foundations: The Politics-Patronage-Social Science Nexus in Cold War America (New Brunswick, NJ: Rutgers University Press, 2013).
6. See Brian Balogh on the emergence of the “proministrative state” and the “courtship” between professionals and the federal government that began in the Progressive era and would be consummated by 1950. Chain Reaction: Expert Debate and Public Participation in American Commercial Nuclear Power, 1945–1975 (New York: Cambridge University Press, 1991), 21–59.
7. Warren W. Willingham, foreword to “Forum on Invasion of Privacy in Research and Testing,” Journal of Educational Measurement 4: 1 (Spring 1967): 2.
8. On Humphreys’s activism, see his biography, as well as David Kraslow, “Movement to Counter Rightists Being Revived,” Los Angeles Times, March 28, 1965, p. 14, in which Humphreys is named as the possible next executive director of an anti-rightist national organization. Humphreys later served a three-month jail sentence for draft board resistance. His activism (starting with his civil rights agitation) was tracked by the FBI, who used people close to him as informants. John H. Galliher, Wayne H. Brekhus, and David P. Keys, Laud Humphreys: Prophet of Sociology and Homosexuality (Madison: University of Wisconsin Press, 2004), 71.
9. Glenn A. Goodwin, Irving Louis Horowitz, and Peter M. Nardi, “Laud Humphreys: A Pioneer in the Practice of Social Science,” Sociological Inquiry 61: 2 (1991): 139–147. They note that this blend of theology and sociology was not unusual, especially at Washington University in the mid-1960s and was “especially fruitful at a time when moral concerns and empirical investigations cross-fertilized with such fierce potency,” 140.
10. Goodwin et al., “Laud Humphreys,” 140. Humphreys named his own influences as Becker, Goffman, Mead, Simmel, the Chicago School, John Dollard, the Lynds, William F. Whyte, Polsky, Malinowski, Firth, Oscar Lewis, Jules Henry, Elliot Liebow, Marx, C. Wright Mills, Paul Goodman, Edgar Friedenberg, Michael Harrington, Irving Horowitz, and Christian Bay. See Myron Glazer, “Impersonal Sex,” Appendix to Tearoom Trade: Impersonal Sex in Public Places, enlarged ed. (New York: Aldine, 1975), 219.
11. See Greg Smith, “Introduction: Interpreting Goffman’s Sociological Legacy,” in Goffman and Social Organization: Studies in a Sociological Legacy, ed. Greg Smith (New York: Routledge, 1999), 1–18. See also Michael John Pettit, “The Con Man as Model Organism: The Methodological Roots of Erving Goffman’s Dramaturgical Self,” History of Human Sciences 24: 2 (2011): 138–154.
12. This was Alfred Lindesmith, who turned to studying drug addicts instead; Galliher et al., Laud Humphreys, 26. Only a handful of others had studied the “homosexual scene,” notably Evelyn Hooker in “The Homosexual Community,” in International Congress of Applied Psychology, Personality Research (Copenhagen: Munksgaard, 1962), with an introduction by Stanley Coopersmith, 40–59.
13. Laud Humphreys, Tearoom Trade: Impersonal Sex in Public Places, enlarged ed. (New York: Aldine, 1975), 218; Galliher et al., Laud Humphreys, 24. The department, after many run-ins with the administration, was “phased out” beginning in 1989 and shuttered in 1991; it was only reestablished in 2014.
14. Personal correspondence between Laud Humphreys and Myron Glazer, reprinted in Glazer, “Impersonal Sex,” 219.
15. As Humphreys related it, his advisor’s question was, “But where does the average guy go just to get a blow job? That’s where you should do your research”; as for the derivation of “tearoom,” Humphreys explained that it came from British slang, “tea,” for urine. Tearoom Trade, 16, 2. On tearooms earlier in the century, see George Chauncey, Gay New York: Gender, Urban Culture and the Making of the Gay Male World, 1890–1940 (New York: Pantheon, 1994), 179–206.
16. Lee Rainwater, foreword to Tearoom Trade, xi–xii. As he put it, “For a significant number, the tearooms seem to represent their only contact with a deviant sexual setting, and these individuals could not be considered social deviants in Goffman’s sense,” xiii.
17. David Sklansky, “One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure,” U.C. Davis Law Review 41: 3 (2008): 924. He adds, that, with publicity widely seen as a cure for vice, disclosure was the ruling fear of homosexuals in this era.
18. Humphreys, Tearoom Trade: Impersonal Sex in Public Places (Chicago: Aldine, 1970). See also his 1970 account of the research findings, reprinted in William L. Leap, ed., Public Sex/Gay Space (New York: Columbia University Press, 1999), 29–54. A useful commentary on the study appears in the same volume: Peter M. Nardi, “Reclaiming the Importance of Laud Humphreys’s ‘Tearoom Trade: Impersonal Sex in Public Places,’ ” 23–27.
19. Martin B. Duberman, Stonewall (New York: Dutton, 1993).
20. See Howard S. Becker, “Becoming a Marihuana User,” American Journal of Sociology 59: 3 (1953): 235–242, and Outsiders: Studies in the Sociology of Deviance (London: Free Press of Glencoe, 1963); and William Foote Whyte, Street Corner Society: The Social Structure of an Italian Slum (Chicago: University of Chicago, 1943).
21. See Rainwater’s summary, “The Lessons of Pruitt-Igoe,” National Affairs 8 (Summer 1967): 116–126.
22. Galliher et al., Laud Humphreys, 18.
23. Galliher et al., Laud Humphreys, 28.
24. Laud Humphreys, “Tearoom Trade: Impersonal Sex in Public Places,” Transaction 7: 5 (January 1970): 10–25.
25. For Humphreys’s detailed account of his methods and research design see chapter 2 of Tearoom Trade: “Methods: The Sociologist as Voyeur,” 16–44.
26. Humphreys, Tearoom Trade, 4.
27. There was some contemporary attention to these findings, especially among sociologists of deviance. But many of these findings would await the 1990s and the advent of queer studies to be appreciated and reframed as a key origin point of studying public gay sex. See, for example, Leap, Public Sex/Gay Space.
28. Humphreys did secure the cooperation of a dozen informants, whom he called the “intensive dozen.”
29. Humphreys, Tearoom Trade, 30.
30. Humphreys, Tearoom Trade, 38. He later clarified that these were campus police; Laud Humphreys, “Social Science: Ethics of Research,” Science 207 (February 15, 1980): 712.
31. Glazer, “Impersonal Sex,” 217.
32. These were the working-class and middle-class men whom Humphreys cataloged as “trade” and “ambisexuals.”
33. Humphreys, Tearoom Trade, 139.
34. Humphreys, Tearoom Trade, 135–136.
35. In this he followed in the footsteps of others like Alfred Kinsey, but in a more narrative and less statistical fashion.
36. Humphreys, Tearoom Trade, 11, 13–14.
37. This was the profile of the mid-century homophile movement as well, in which middle-class respectability and discretion were paramount. Marc Stein provides an account of the need for homophile organizations to keep a low profile, given the propensity of local officials to raid their offices, in City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945–1972 (Chicago: University of Chicago Press, 2000), ch. 8.
38. With public spaces risky, private spaces and churches became key sites for sociability and community formation for southern African Americans. Robin D. G. Kelley, “ ‘We Are Not What We Seem’: Rethinking Black Working-Class Opposition in the Jim Crow South,” Journal of American History (1993): 75–112. In another parallel to Humphreys, Kelley notes the use of stool pigeons for surveillance in black communities, 102. Michel Foucault’s 1967 lecture, “Other Spaces: Utopias and Heterotopias,” spoke to new theories of the ways spaces for nonconformity were carved out from the dominant society; it appears in Architecture/Mouvement/Continuité, trans. Jay Miskowiec (October 1984): 1–9.
39. Sklansky, “One Train May Hide Another,” 911–912.
40. On the Jenkins affair of 1964, see Lee Edelman, Homographesis: Essays in Gay Literary and Cultural Theory (London: Routledge, 1994), 148–151.
41. Sklansky, “One Train May Hide Another,” 915.
42. John J. Gallo et al., “The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement in Los Angeles County,” UCLA Law Review 13 (1966); see “Part III: Enforcement Techniques,” 689.
43. Sklansky in “One Train May Hide Another” calls this “virtually the unanimous view of scholars at the time, and of the organized bar as well.” He speculates that attention to protecting a particular sort of privacy in Katz was a mark of concern about the policing of homosexuality and a way of reining in the police and their tendencies to “proto-fascism.” This relates, he argues, to modern criminal procedure’s emphasis on “informational privacy,” what William J. Stuntz calls “the individual’s ability to keep some portion of his life secret, at least from the government,” 918–919. See Stuntz, “Privacy’s Problem and the Law of Criminal Procedure,” Michigan Law Review 93 (1995): 1034.
44. Within a year of the investigation, postal surveillance collapsed; Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013), 154–155.
45. Sklansky, “ ‘One Train May Hide Another.”
46. Edward Sagarin, Review of Tearoom Trade, Journal of Sex Research 6: 4 (November 1970): 337. “The real harm of public sex,” a later writer summarized, “was putting these men at risk for blackmail, payoffs, and destroyed reputations at the hands of the police.” Nardi, “Reclaiming the Importance of Laud Humphreys’s ‘Tearoom Trade,’ ” 25.
47. Humphreys, Tearoom Trade, 32.
48. Fred Cohen, Review of Tearoom Trade, Criminal Law Bulletin 7 (1971): 67–69; quote on p. 69. On the ways gay men created privacy in public earlier in the century, see Chauncey, Gay New York, 179–206.
49. Although the issue did not come up at the time, in retrospect, some have suggested that Humphreys blurred the line between researcher and subject. His biographers speculate that his findings could only have come from his active participation in the tearoom action, his involvement “more than he was able to report” given “institutional and disciplinary” but also legal norms. As they put it, “Laud may have been even closer to his data than anyone could have imagined. His behavior was his data.” Galliher et al., Laud Humphreys, 29–30.
50. Humphreys later mused over why the legal issues didn’t loom larger: “By observing, perhaps facilitating, and failing to report some 200 acts of fellatio, was I not guilty as an accomplice to the acts? Stated in that form, the answer may appear obvious. Strangely enough, I don’t think the question even occurred to me until late in my research.” Tearoom Trade, 228.
51. Certainly, Humphreys’s subject of inquiry—furtive, gay sex—cannot be separated from his methods. His biographers suggest that “the controversy his research methods generated probably had as much to do with what he studied as with how he studied it.” Galliher et al., Laud Humphreys, 7. While it seems obvious that the study attracted more scrutiny because of its controversial subject matter, none of the published reviews of the book shied away from the contents. The one reviewer who admitted his aesthetic distaste for what he called “a very dreary and dingy sexual outlet,” also wrote that he had “little sympathy for those who would object to the subject of Humphreys’s work because it is felt to be sordid.” David E. Lavin, Review of Tearoom Trade, Annals of the American Academy of Political and Social Science 398: (November 1971): 200.
52. Donald P. Warwick, “Tearoom Trade: Means and Ends in Social Research,” Hastings Center Studies, Institute of Society, Ethics and the Life Sciences 1: 1 (1973): 27–38.
53. These criticisms are similar to those of Stanley Milgram for potentially causing his subjects great distress. See Gina Perry, Behind the Shock Machine: The Untold Story of the Notorious Milgram Psychology Experiments, rev. ed. (New York: Free Press, 2013).
54. The Commission was created by the 1974 National Research Act; Dennis M. Maloney, Protection of Human Research Subjects: A Practical Guide to Federal Laws and Regulations (New York: Plenum Press, 1984).
55. “Informed consent” was recognized in the law as early as 1957. Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Belknap Press of Harvard University Press, 2015), 12. Minors as well as adults were covered by the new regulations, which granted subjects “the ability to assent to research from the age of seven up.” Tamar W. Carroll and Myron P. Gutmann, “The Limits of Autonomy: The Belmont Report and the History of Childhood,” Journal of the History of Medicine and Allied Sciences 66: 1 (January 2011): 82–115. See also Heather Prescott, “Using Student Bodies: College and University Students as Research Subjects,” Journal of the History of Medicine and Allied Science 57 (2002): 3–38. Such changes did not necessarily mean that researchers adopted a more autonomous or dignified vision of their subjects. Laura Stark has argued compellingly that human rights took a distinct second place to legal self-protection in the new research regime and that IRB regulations were put in place precisely to enable rather than constrain human investigation. Behind Closed Doors: IRBs and the Making of Ethical Research (Chicago: University of Chicago Press, 2012).
56. See Susan Lederer, Subjected to Science: Human Experimentation in America before the Second World War (Baltimore: Johns Hopkins University Press, 1997); Andrew Goliszek, In the Name of Science: A History of Secret Programs, Medical Research, and Human Experimentation (New York: St. Martin’s Press, 2003); and Paul Julian Weindling, Nazi Medicine and the Nuremberg Trials: From Medical War Crimes to Informed Consent (New York: Palgrave Macmillan, 2004). Stark writes that its principles were deemed “appropriate for moral monsters, not for democratically minded American physicians.” Behind Closed Doors, 104. Jill Morawski too claims that Nuremberg “heightened attention” but “produced no consensual lesson.” “Epistemological Dizziness in the Psychology Laboratory: Lively Subjects, Anxious Experimenters, and Experimental Relations, 1950–1970,” Isis 106: 3 (September 2015): 583.
57. Stark, Behind Closed Doors, 125.
58. Henry K. Beecher, “Ethics and Clinical Research,” New England Journal of Medicine 274 (June 16, 1966): 1354–1360. On Beecher’s 1966 exposé and its impact, see David J. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991), 15–29; and Lederer, Subjected to Science. Stark argues that Beecher’s revelations did not effect the change. Rather, “American moral and medical sensibilities in the late 1960s lifted the article to prominence.” Behind Closed Doors, 160.
59. Stark, Behind Closed Doors, 77–78; Zachary Schrag, Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965–2009 (Baltimore: Johns Hopkins University Press, 2010), and “How Talking Became Human Subjects Research: The Federal Regulation of the Social Sciences, 1965–1991,” Journal of Policy History 21 (2009): 3–37. It was in a memo of 1966 that the Surgeon General clarified that the new requirement covered social and behavioral scientists as well as medical researchers. Writes Laura Stark: “Tellingly, the U.S. Surgeon General wrote to university administrators in 1966 regarding the new ethics committees that ‘the wisdom and sound professional judgment of you and your staff will determine what constitutes the rights and welfare of human subjects in research, what constitutes informed consent, and what constitutes the risks and potential medical benefits of a particular investigation.’ ” “Victims in Our Own Minds? IRBs in Myth and Practice,” Law and Society Review 41: 4 (2007): 781. See also Hunter Crowther-Heyck, “Patrons of the Revolution: Ideals and Institutions in Postwar Behavioral Sciences,” Isis 97 (2006): 420–446; and Ruth R. Faden and Tom L. Beauchamp in collaboration with Nancy M. P. King, A History and Theory of Informed Consent (New York: Oxford University Press, 1986).
60. Allan M. Brandt, “Racism and Research: The Case of the Tuskegee Syphillis Study,” The Hastings Center Report 8: 6 (December 1978): 21–29; James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (New York: Free Press, 1992). A Commission on the Protection of Human Subjects in Biomedical and Behavioral Research was also established. The Belmont Report of 1978 would define ethical guidelines for medical research.
61. American Psychological Association, Ethical Standards of Psychologists (Washington, DC: APA, 1953), 113–124, and Ethical Standards for the Distribution of Psychological Tests and Diagnostic Aids (Washington DC: APA, 1954). See Irwin A. Berg, “The Use of Human Subjects in Psychological Research, American Psychologist 9 (1954): 108–111; and C. R. Rogers, “Persons or Science? A Philosophical Question,” American Psychologist 10 (1955): 267–278. See also American Psychological Association, “Ethical Standards of Psychologists,” American Psychologist 18 (1963): 56–60.
62. Comment, “Legal Implications of Psychological Research with Human Subjects,” Duke Law Journal 2 (Spring 1960): 265–274; quote on pp. 267–268.
63. “Infrequently used before the war, deceiving subjects about the ‘real’ nature of the experiment or experimental stimuli became increasingly common after 1948.” Morawski, “Epistemological Dizziness in the Psychology Laboratory,” 580. Similar questions were raised among anthropologists, although not usually framed as privacy questions, perhaps because their subjects were typically non-U.S. populations. On the history of deception in American psychology, see Michael John Pettit, The Science of Deception: Psychology and Commerce in America (Chicago: University of Chicago Press, 2013).
64. Stanley Milgram, “Behavioral Study of Obedience,” Journal of Abnormal Psychology 67 (1963): 371–378. Useful interpretations of the experiments can be found in Perry, Behind the Shock Machine, and Ian Nicholson, “ ‘Torture at Yale’: Experimental Subjects, Laboratory Torment, and the ‘Rehabilitation’ of Milgram’s ‘Obedience to Authority,’ ” Theory and Psychology 21 (2011): 737–761.
65. See especially Diana Baumrind, “Some Thoughts on Ethics of Research: After Reading Milgram’s ‘Behavioral Study of Obedience,’ ” American Psychologist 19 (1964): 421–423. Milgram’s reply was “Issues in the Study of Obedience: A Reply to Baumrind,” American Psychologist 19 (1964): 848–852.
66. Stanley Milgram, Obedience to Authority: An Experimental View (New York: HarperCollins, 1997; 1974), 219, 212–215. Milgram noted that “for some critics … the chief horror of the experiment was not that the subjects obeyed but that the experiment was carried out at all,” 211. Perry’s recent history, Behind the Shock Machine, challenges Milgram’s characterizations of the effect of the experiment on participants.
67. Some of the skepticism came from recognition of the self-serving claims of scientific authorities—for example, chemists on the safety of DDT pre-Silent Spring. For a retrospective account of Milgram’s work and influence, see Thomas Blass, ed., Obedience to Authority: Current Perspectives on the Milgram Paradigm (Mahwah, NJ: Lawrence Erlbaum, 2000).
68. For Zimbardo’s own account see Philip G. Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil (New York: Random House, 2007).
69. Constance Holden, “Ethics in Social Science Research,” Science 206 (November 2, 1979): 538. Herbert C. Kelman also charged that the experiment involved “entrapment and degradation” and that “unsought self-knowledge” was not morally defensible. He raised the possibility of a subjects’ bill of rights and subject unionizing in “The Rights of the Subject in Social Research: An Analysis in Terms of Relative Power and Legitimacy,” American Psychologist 27 (1972): 989–1016.
70. For accounts of Project Camelot, see Mark Solovey, “Project Camelot and the 1960s Epistemological Revolution: Rethinking the Politics-Patronage-Social Science Nexus,” Social Studies of Science 31: 2 (2001): 171–206; and Joy Rohde, Armed with Expertise: The Militarization of American Social Research during the Cold War (Ithaca, NY: Cornell University Press, 2013): 63–89.
71. Boas was prompted to write by the fact that several anthropologists had been implicated in state-sponsored espionage in Central America during World War I. He argued that any scholar “who uses science as a cover for political spying, who demeans himself to pose before a foreign government as an investigator and asks for assistance in his alleged researches in order to carry on, under this cloak, his political machinations, prostitutes science in an unpardonable way and forfeits the right to be classed as a scientist.” Boas, “Scientists as Spies,” The Nation, December 20, 1919. Boas would be censured by the American Anthropological Association for this statement. For the entanglement of anthropology and the state in the postwar era, see David H. Price, Cold War Anthropology: The CIA, the Pentagon, and the Growth of Dual Use Anthropology (Durham, NC: Duke University Press, 2016).
72. Alexandra Rutherford, “The Social Control of Behavior Control: Behavior Modification, Individual Rights, and Research Ethics in America, 1971–1979,” Journal of the History of the Behavioral Sciences 42 (2006): 203–220. See the entire issue of American Sociologist 13: 4 (1978) on the protection of human subjects.
73. Nancy D. Campbell and Laura Stark argue that this process was at work in the self-description of biomedical research subjects in the 1970s. “Making up ‘Vulnerable’ People: Human Subjects and the Subjective Experience of Medical Experiment,” Social History of Medicine 28: 4 (2015): 825–848.
74. Orville G. Brim Jr., “Reaction to the Papers,” Journal of Educational Measurement 4: 1 (Spring 1967): 29.
75. Brim, “Reaction to the Papers,” 30.
76. Bernard Berelson, introduction to “Forum on Invasion of Privacy in Research and Testing,” Journal on Educational Measurement 4: 1 (Spring 1967): 5. The issue summarized a 1966 symposium devoted to the issue.
77. Oscar Ruebhausen and Orville Brim, “Privacy and Behavioral Research,” Columbia Law Review 65 (November 1965): 1184–1211; quotes on pp. 1184–1185, 1190. Ruebhausen was chairman of the Special Committee on Science and Law of the Association of the Bar of the City of New York.
78. Ruebhausen and Brim, “Privacy and Behavioral Research,” 1201.
79. Ruebhausen and Brim, “Privacy and Behavioral Research,” 1208, 1192, 1194, 1201.
80. Oscar Ruebhausen and Orville Brim, “Privacy and Behavioral Research: Preliminary Summary of the Report of the Panel on Privacy and Behavioral Research,” Science 155 (February, 3, 1967): 535–538; quotes on pp. 535, 536.
81. Ruebhausen and Brim, “Privacy and Behavioral Research,” 1208.
82. Ruebhausen and Brim, “Privacy and Behavioral Research: Preliminary Summary,” 537.
83. See Laura Stark, “The Science of Ethics: Deception, the Resilient Self, and the APA Code of Ethics, 1966–1973,” Journal of the History of the Behavioral Sciences 46: 4 (2010): 337–370.
84. Ruebhausen and Brim, “Privacy and Behavioral Research,” 1200.
85. Comment, “Legal Implications of Psychological Research with Human Subjects,” 270.
86. See Samuel Messick, “Personality Measurement and the Ethics of Assessment,” American Psychologist 20: 136 (1965): 140. Surely for some subset of subjects, however, the desire to advance scientific knowledge was a factor in their participation, and a kind of benefit.
87. Ruebhausen and Brim, “Privacy and Behavioral Research,” 1198 and n. 49 on that page.
88. Morawski, “Epistemological Dizziness in the Psychology Laboratory”; Pettit, The Science of Deception; Stark, Behind Closed Doors.
89. Ruebhausen and Brim, “Privacy and Behavioral Research: Preliminary Summary,” 537. The panel instead recommended establishing a “partnership” between the “scientist and his subject”: if full consent could not be obtained, the scientist had to ensure a trusting fiduciary relationship and also arrange a possible exit from the research for the subject.
90. Hoch, “The Privacy Issue and a Professional Response,” 19–20.
91. Eugene J. Webb, Donald T. Campbell, Richard D. Schwartz, and Lee Sechrest, Unobtrusive Measures: Nonreactive Research in the Social Sciences (Chicago: Rand McNally, 1966), vii.
92. See Morawski, “Epistemological Dizziness in the Psychology Laboratory.”
93. This was research conducted by Edward H. Peeples Jr. and reported in Community Nutrition Institute Weekly Report 5: 45 (November 13, 1975): 4. See “Dormant Data,” Privacy Journal 2: 3 (January 1976): 5–6. Peebles estimated that pet food was a significant part of the diet in 225,000 American households, and the issue had recently attracted the attention of the Senate Nutrition Committee. See the report in the Port Huron, Michigan, Times Herald, December 23, 1975, p. 20.
94. William A. Creech, “Psychological Testing and Constitutional Rights,” Duke Law Journal 1966 (1966): 369. See also G. Cooper, “Legal Implications of the Use of Standardized Ability Tests in Employment and Education,” Columbia Law Review 68 (1968): 690–744.
95. George K. Bennett, “Testing and Privacy,” Journal of Educational Measurement 4: 1 (Spring 1967): 9.
96. Willingham, foreword to “Forum on Invasion of Privacy in Research and Testing,” 1.
97. Herbert S. Conrad, “Clearance of Questionnaires with Respect to ‘Invasion of Privacy,’ Public Sensitivities, Ethical Standards, etc.: Principles and Viewpoint in the Bureau of Research, U.S. Office of Education,” Journal of Educational Measurement 4: 1 (Spring 1967): 25.
98. Conrad, “Clearance of Questionnaires with Respect to ‘Invasion of Privacy,’ ” 27.
99. Robert O. Carlson, “The Issue of Privacy in Public Opinion Research,” Public Opinion Quarterly 3: 1 (1967): 1–8.
100. Carlson, “The Issue of Privacy in Public Opinion Research.”
101. Carlson, “The Issue of Privacy in Public Opinion Research.”
102. Charles S. Mayer and Charles H. White Jr., “The Law of Privacy and Marketing Research,” Journal of Marketing 33: 2 (April 1969): 1–4.
103. Mayer and White, “The Law of Privacy and Marketing Research,” 3.
104. Leo Bogart, “The Researcher’s Dilemma” (1962), in Current Controversies in Marketing Research, ed. Leo Bogart (Chicago: Markham, 1969), 9.
105. Mayer and White, “The Law of Privacy and Marketing Research,” 3. At the same time, the writers pointedly observed that existing privacy rights were not identical to the rights citizens imagined that they were entitled to.
106. “Census Programs Attacked as Invasion of Privacy,” American Statistician 22 (April 1968): 12–13.
107. Roderick D. Buchanan argues, for example that the congressional personality test hearings were managed in the end by experts. “On Not Giving Psychology Away: The Minnesota Multiphasic Personality Inventory and Public Controversy over Testing in the 1960s,” History of Psychology 5: 3 (2002): 284–309.
108. Goodwin et al., “Laud Humphreys,” 142; Alvin Gouldner, “The Sociologist as Partisan: Sociology and the Welfare State,” American Sociologist 3: 2 (May 1968): 103–116.
109. Galliher et al., Laud Humphreys, 21.
110. Galliher et al., Laud Humphreys, 20. Institutional Review Boards were modeled on the Clinical Research Committee of the National Institutes of Health, established in 1953. On the history of this model of research clearance (based on “review procedures rather than ethics principles”), see Stark, Behind Closed Doors.
111. Galliher et al., Laud Humphreys, 19–20. These were actually physical blows, although there are conflicting accounts of what actually happened. “Sociology Professor Accused of Beating Student,” New York Times, June 10, 1968, p. 25; Goodwin et al., “Laud Humphreys,” 142–143. The Times reported that the dispute concerned Gouldner’s personal attacks on sociologists (including his colleague Lee Rainwater) who studied deviant behavior, “suggesting that these researchers were more interested in their own professional advancement than in the plight of the drug addicts and other deviants they studied, and that some of their methods were dishonest and immoral.” According to Gouldner, the dispute stemmed from Humphreys’s anger about the article. Gouldner, “The Sociologist as Partisan.”
112. This account comes primarily from Galliher et al., Laud Humphreys, 21, 27.
113. At some point, Humphreys had been offered a teaching position in the department. Following this series of events, there was a public protest, published in the St. Louis Post Dispatch, by seven sociologists against the administration for replacing the department chair, delaying Rainwater’s grant, and questioning the legitimacy of Humphreys’s dissertation. Galliher et al., Laud Humphreys, 21–22, 27.
114. Two Transaction articles followed, including a cover-page feature in 1970.
115. Humphreys, “Social Science: Ethics of Research,” 714. In a letter to Myron Glazer in 1971, however, Humphreys did say that even despite the fact that there was “plenty of precedent for my research strategies,” he worried about publishing the research and that he and his advisors “agonized over every move, every step of the research.” See Glazer, “Impersonal Sex,” 219.
116. Likewise, in a 1970 defense of Humphreys, Rainwater and Irving Horowitz would underscore their support, as editors of a sociological journal, of “the right to privacy of the researcher over and against the wishes of established authority.” Irving Louis Horowitz and Lee Rainwater, “On Journalistic Moralizers,” Transaction 7: 7 (May 1970): 4–10, reprinted in Appendix to Tearoom Trade: Impersonal Sex in Public Places, enlarged ed. (New York: Aldine, 1975), 189.
117. Lee Rainwater and David J. Pittman, “Ethical Problems in Studying a Politically Sensitive and Deviant Community,” Social Problems 14 (1966–1967): 357–366; quote on p. 361. They went on to write, “Being aware of the possibility of having our records subpoenaed … we can take precautions. We can arrange to obliterate identifying information on records. We can obtain a clear legal definition of who can and who cannot subpoena us and exactly what kind of control they can exercise over our records. Also, it seems to us, we must face up to the necessity if all else fails of having to engage in one or another kind of ‘hanky panky’ to preserve the informant’s anonymity where the courts will not sustain that right,” 364. Worries over the confidentiality of research sources from subpoena were a live topic for social scientists in this era. See James D. Carroll and Charles R. Knerr, “The APSA Confidentiality in Social Scientific Research Project: A Final Report,” PS 9: 4 (Autumn 1976): 416–419. They argued that increasing public sensitivities about misuse of personal information, the greater volume of “relevant” and interventionist research, the “increased dependence of public decision makers upon social and behavioral research,” and the increase in “naturalistic” and “interactive” research, had combined to make confidentiality and other legal and ethical problems more present in social research in recent years, 418.
118. Rainwater and Pittman, “Ethical Problems in Studying a Politically Sensitive and Deviant Community,” 361.
119. Lee Rainwater, And the Poor Get Children: Sex, Contraception, and Family Planning in the Working Class (Chicago: Quadrangle Books, 1960). One of the conclusions was that the new oral contraceptives would be a difficult method for working-class women to use conscientiously, and one that they also might distrust. To overcome this challenge, the study recommended mobile units, caseworkers, and discussion groups at women’s homes, 172–173. (This perhaps suggested that contraception was not seen as a particularly “private” matter in the years prior to Griswold). Because Rainwater’s study was then used to support the idea that working-class women didn’t want help limiting their families, Rainwater and Pittman used it as an object lesson in researchers needing to guard against misuse and misinterpretation of their results. “Ethical Problems in Studying a Politically Sensitive and Deviant Community,” 362.
120. Moynihan lifted his most controversial phrase, “tangle of pathology,” from psychologist Kenneth Clark’s “Youth in the Ghetto” report. In historian Daniel Geary’s framing, Moynihan, Rainwater, and Clark all represented a “prevalent social-scientific school known as ‘pathologism’ that stressed how racism damaged African American social life,” using a medical term to describe social ills affecting the community. But Clark would by 1970 become one of Moynihan’s detractors. Geary, Beyond Civil Rights: The Moynihan Report and Its Legacy (Philadelphia: University of Pennsylvania Press, 2015), 61–62, 114. For Clark’s critique of Moynihan, see p. 203.
121. Rainwater was “Moynihan’s staunchest supporter,” writing with a graduate student, William Yancey, a book in 1967 on the affair. Rainwater and Yancey, The Moynihan Report and the Politics of Controversy (Cambridge, MA: MIT Press, 1967). The book defended “social scientists’ autonomy to portray African American social life” and thereby “upheld the intellectual authority of a white-dominated profession.” See Geary, Beyond Civil Rights, 116–118. Rainwater would be sharply criticized for his stance, with charges by black power intellectuals such as Julius Lester that Moynihan and his colleagues believed that they were “greater authorities on blacks than blacks themselves,” 121. Other correctives were offered by sociologist Carol Stack and the historians Herbert Gutman and Eugene Genovese.
122. This was Rainwater’s Behind Ghetto Walls (1970), which analyzed the “pathologies” of public housing and portrayed the lives of his subjects quite harshly. See Geary, Beyond Civil Rights, 116–118. There are some striking resonances to the recent controversy over Alice Goffman’s ethnography, On the Run: Fugitive Life in an American City (Chicago: University of Chicago Press, 2014). On the politics of white scholars writing on African Americans in this era, see Gary T. Marx, “Reflections on Academic Success and Failure: Making It, Forsaking It, Reshaping It,” in Authors of Their Own Lives: Intellectual Autobiographies by Twenty American Sociologists, ed. Bennett M. Berger (Berkeley: University of California Press, 1990), 260–284.
123. Geary, Beyond Civil Rights, 115.
124. Rainwater and Pittman, “Ethical Problems in Studying a Politically Sensitive and Deviant Community,” 363; emphasis in original.
125. Rainwater and Pittman, “Ethical Problems in Studying a Politically Sensitive and Deviant Community,” 365; emphasis in original. Here they were referring to confidentiality vis-à-vis politically powerful informants and the “publicly accountable,” it should be noted.
126. Humphreys, “Tearoom Trade.”
127. This information comes from personal correspondence between Humphreys and Myron Glazer. See Glazer, “Impersonal Sex,” 215. Humphreys allowed that “memories of that time of panic have helped me understand, though not approve, the procedures of some White House conspirators in the Watergate cover-up.” Tearoom Trade, 229.
128. Strikingly, given Humphreys’s own experience being tracked by the FBI for his civil rights work, it did not seem to occur to him to worry that he might lead law enforcement right to the door of tearoom users. See Galliher et al., Laud Humphreys, 71.
129. Humphreys, Tearoom Trade, 170–171.
130. See especially his postscript in the reissued 1975 edition of Tearoom Trade, offering “a Retrospect on Ethical Issues,” and the commentaries that follow; Humphreys, “Postscript: A Question of Ethics,” 167–173. Fifty-seven pages of the reissued book were devoted to the ethics controversy. See also Donald O. Granberg and John F. Galliher, A Most Human Enterprise: Controversies in the Social Sciences (Lanham, MD: Lexington Books, 2010).
131. Kenneth Plummer, Review of Tearoom Trade, British Journal of Criminology 12: 2 (April 1972): 190.
132. Warwick, “Tearoom Trade: Means and Ends in Social Research.” Warwick’s long list of the sociologist’s deceptions included passing as gay (although of course, in some sense, Humphreys wasn’t); disguising his identity by posing as a watchqueen; making an oral record of his observations by hiding a tape recorder in his car; deceiving police about the nature of his study to gain access to automobile license registers; changing his appearance so he could conduct interviews; and misrepresenting the social health survey and “random sample,” which may have thereby distorted the social health survey results, 199.
133. Glazer, “Impersonal Sex,” 217.
134. Glazer, “Impersonal Sex,” 220–221.
135. E. B. Eiselein, Review of Tearoom Trade, American Anthropologist 73: 4 (August 1971): 861. As it turned out, Humphreys was not exactly taking on the “guise of the gay guy,” but was keeping his sexual identity hidden from his colleagues.
136. Lawrence Rosen, Review of Tearoom Trade, Journal of Marriage and Family 34: 2 (May 1972): 382.
137. Glazer, “Impersonal Sex,” 217. Stanley Milgram was similarly criticized for not providing adequate debriefing and follow-up in his obedience study; see Gina Perry, Behind the Shock Machine.
138. Warwick, “Tearoom Trade,” 204–205. “This concern should be especially great when a researcher imposes himself on others for his own ends, without their knowledge. The men in the tearoom did not, after all, ask to be studied or helped,” 205; emphasis in original.
139. Warwick, “Tearoom Trade,” 202–203.
140. Warwick, “Tearoom Trade,” 204.
141. Barry Krisberg, Review of Tearoom Trade, Issues in Criminology 7: 1 (Winter 1972): 126. Krisberg considered Humphreys a practitioner of “hip sociology,” along with Becker and Goffman. Similar charges of “pornography” and “ghetto tourism” were used to criticize Lee Rainwater’s work, as well as Kenneth Clark’s.
142. Edward Sagarin, who also wrote under the name Donald Webster Cory, was the author of the influential 1951 book, The Homosexual in America: A Subjective Approach. He was famously “outed” by Laud Humphreys at the 1974 meeting of the American Sociological Association. Sagarin, Review of Tearoom Trade, 337–338.
143. Sagarin, Review of Tearoom Trade, 338.
144. Warwick, “Tearoom Trade,” 207.
145. Warwick, “Tearoom Trade,” 207.
146. Glazer, “Impersonal Sex,” 222.
147. Glazer, “Impersonal Sex,” 222.
148. This was via excerpts published in the sociological monthly, Transaction. See Transaction 7: 5 (January 1970): 10–25. Rainwater and Irving Horowitz, both Humphreys’s advisors, were editors of the journal and would defend his work in it pages later that year.
149. Nicholas von Hoffman, “Sociological Snoopers,” Washington Post, January 30, 1970, pp. B1, B9.
150. See, for example, Herbert C. Kelman, A Time to Speak: On Human Values and Social Research (San Francisco: Jossey-Bass, 1968); and Myron Glazer, The Research Adventure: Promise and Problems of Field Work (New York: Random House, 1972).
151. Kai T. Erikson, “A Comment on Disguised Observation in Sociology,” Social Problems 14: 4 (Spring 1967): 366–373; quotes on pp. 367–369, 373. Erikson lambasted the presumption of the sympathetic researcher who thinks he knows how his actions will affect others, “particularly when, as is ordinarily the case, he has elected to wear a disguise exactly because he is entering a social sphere so far from his own experience.” Erikson’s article directly followed Rainwater and Pittman’s essay on “Ethical Problems” in that issue of Social Problems. Interestingly, Humphreys wrote in 1975, “It may provide some insight into my lack of doubt about the ethics of my observations to know that I spend an hour discussing my research with Erikson at about the same time his paper on ethics was published. Neither of us recall that he raised any ethical objections at that point; we were both more interested in the nature and quality of the data being gathered.” Tearoom Trade, 227.
152. Humphreys linked the new worries over these issues to Watergate plumbers and domestic surveillance, and he hoped his material on ethics would help social scientists “clarify their research posture in a post-Watergate society.” Tearoom Trade, 175.
153. Robert T. Bower and Priscilla de Gasparis, Ethics in Social Research: Protecting the Interests of Human Subjects (New York: Praeger, 1978). See also the American Sociologist symposium on the topic in 1978.
154. Bower and de Gasparis, Ethics in Social Research, 4.
155. Bower and de Gasparis, Ethics in Social Research, 12–35; quote on p. 26. Joan Cassell made the additional distinction that while subjects of behavioral experiments may be at risk during data collection, the risk to subjects of observational study is often deferred until data and analysis are made available. Joan Cassell, “Risk and Benefits to Subjects of Field Work,” American Sociologist 13 (August 1978): 134–143.
156. Zachary Schrag observes that presumed dangers to social scientific research subjects—as opposed to medical ones—centered especially on the “unwarranted invasion of privacy.” Ethical Imperialism, 8. Bower and de Gasparis commented here on the ethics of unobtrusive measures, which were in part espoused for their avoidance of risks of coercion, embarrassment, or imposition. “Most strenuous objections” to such studies, they noted, “come under the heading of invasion of privacy, with privacy defined as the individual’s right to decide what of himself he will expose, to whom, and in what circumstances.” Both the problem and the benefit of this kind of research were that the subject was unaware of being observed. Ethics in Social Research, 35.
157. Bower and de Gasparis, Ethics in Social Research, 14. Privacy concerns would of course soon come to the biomedical domain in fears of genetic databases and the like. Other writers would also distinguish social research in terms of the difficulty in securing true consent. By the 1980s some social researchers even reversed the presumption that their inquiries were less risky or at least more amenable to consent than the biomedical ones: “Since what may happen in social interaction is never fully predictable and often quite unanticipated, there is a very real sense in which truly informed consent is more illusory in social research than in biomedical research with the latter’s sometimes even life-threatening dangers.” This writer also noted that “social science folk literature is rich with tales of inadvertently blown covers and identification of disguised and supposedly anonymous individuals, institutions, and communities.” Allen D. Grimshaw, “Whose Privacy? What Harm?” Sociological Methods and Research 11: 2 (November 1982): 244, 242.
158. Bower and de Gasparis, Ethics in Social Research, 19.
159. Bower and de Gasparis, Ethics in Social Research, 35. They noted the usefulness of such studies for probing deviant behavior. But they remarked that “the brave researcher that undertakes them nowadays can expect the vocal opposition of many of his peers on the ground of deception and invasion of privacy.” This was true even if his use of unobtrusive techniques “may get the applause of others … because of their very unobtrusiveness.”
160. Bower and de Gasparis, Ethics in Social Research, 22, 46.
161. Horowitz and Rainwater, “On Journalistic Moralizers,” 185. Horowitz would continue to defend Humphreys through the 1970s, protesting in a letter to Science a “moral hard-liner” approach to deception in social research and praising that “courageous band of scholars who continue to believe that research priorities and protection through discussion have their own moral imperatives.” Irving Louis Horowitz, “Social Science Research Ethics,” Science 206 (November 30, 1979): 1022.
162. Horowitz and Rainwater, “On Journalistic Moralizers,” 181, 188–189. They pointed to “a key contradiction in the contemporary position of the liberal: he wants to protect the rights of private citizens, but at the same time he wants to develop a welfare system that could hardly function without at least some knowledge about these citizens,” 189. See also Irving Louis Horowitz, The Decomposition of Sociology (New York: Oxford University Press, 1993).
163. Humphreys, Tearoom Trade, 188.
164. Humphreys, Tearoom Trade, 17. See Gallo et al., “The Consenting Adult Homosexual and the Law,” 804. They cite a Mansfield, Ohio, study, in which sixty-five men were caught in two weeks of police surveillance.
165. Humphreys, “Tearoom Trade”; emphasis in original.
166. Humphreys, Tearoom Trade, 231. For social scientists’ worry about lost knowledge due to research regulations, see Schrag, Ethical Imperialism.
167. Humphreys, “Social Science: Ethics of Research,” 714. Stanley Milgram made an identical claim about the benefits of his obedience study to participants.
168. This was the Committee of Concern about Institutional Review Board Practices. “Social Scientists Form Committee to Protest Proposed Regulations,” IRB: Ethics & Human Research 1: 8 (December 1979): 7. See Federal Register, August 14, 1979; and IRB, November 1979, pp. 1–5, 12.
169. Susan C. Lawrence, Privacy and the Past: Research, Law, Archives, Ethics (New Brunswick, NJ: Rutgers University Press, 2016), 47.
170. Holden, “Ethics in Social Science Research,” 538.
171. Humphreys, Tearoom Trade, 175.
172. Holden, “Ethics in Social Science Research,” 537. She was reporting on the proceedings of an NSF-funded conference on the topic. See Humphreys’s reply, “Social Science: Ethics of Research.”
173. Peter Nardi, for example, notes this framing of the study in the 1996 textbook Sociology (Belmont, CA: Wadsworth) by David Ward and Lorene Stone. “Reclaiming the Importance of Laud Humphreys’s ‘Tearoom Trade,’ ” 23.
174. Laura M. MacDonald, “America’s Toe-Tapping Menace,” New York Times, September 2, 2007, p. C10.
175. Galliher et al., Laud Humphreys, 47.
1. In 1974, Seymour M. Hersh reported in the New York Times that Nixon’s CIA had conducted secret surveillance of antiwar protesters and other dissidents, despite prohibitions in the 1947 National Security Act; a host of other revelations would soon arrive about assassination plots, civil rights surveillance, mail opening, NSA watch lists, and secret LSD experiments. Hersh, “Huge CIA Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years,” New York Times, December 22, 1974. Mary Graham, Presidents’ Secrets: The Use and Abuse of Hidden Power (New Haven, CT: Yale University Press, 2017), 143–146; Seth Rosenfeld, Subversives: The FBI’s War on Student Radicals, and Reagan’s Rise to Power (New York: Farrar, Straus and Giroux, 2013).
2. For the background on the plan, see Priscilla Regan, Legislating Privacy: Technology, Social Values, and Public Policy (Chapel Hill: University of North Carolina Press, 1995), 71–77; see also Arthur R. Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers (Ann Arbor: University of Michigan Press, 1971), 71–82.
3. “Privacy and Efficient Government: Proposals for a National Data Center,” Harvard Law Review 82 (1968): 400–417.
4. Raymond T. Bowman, “Crossroad Choices for the Future Development of the Federal Statistical System,” Journal of the American Statistical Association 63 (1968): 810.
5. Richard Ruggles, Richard Miller, Edwin Kuh, Stanley Lebergott, Guy Orcutt, and Joseph Pechman, “Committee on the Preservation and Use of Economic Data,” Report presented to the Social Science Research Council of the American Economic Association (1965), 6–7. Carl Kaysen, Charles C. Holt, Richard Holton, George Kozmetsky, H. Russell Morrison, and Richard Ruggles, “Report of the Task Force on the Storage of and Access to Government Statistics,” American Statistician 23: 3 (1969): 15–16.
6. See, for example, Nan Robertson, “Data-Center Aims Scored in Inquiry,” New York Times, July 28, 1966, p. 24; “Bureaucracy: Chains of Plastic,” Newsweek (August 8, 1966): 27; Anthony Prisendorf, “National Data Center: Computer vs. the Bill of Rights,” The Nation 203 (1966): 449–452; “A Government Watch on 200 Million Americans?” U.S. News & World Report (May 16, 1966): 56; and “The National Data Center and Personal Privacy,” The Atlantic (November 1967): 53. For the scholarly response, see E. S. Dunn Jr., “The Idea of a National Data Center and the Issue of Personal Privacy,” American Statistician 21 (1967): 21–27; and Jack Sawyer and Howard Schechter, “Computers, Privacy, and the National Data Center: The Responsibility of Social Scientists,” American Psychologist 23: 11 (1968): 810–818. Jerry M. Rosenberg devoted a chapter of his 1969 book, The Death of Privacy (New York: Random House, 1969), to the threat of a proposed national data bank, 22–40.
7. Sawyer and Schechter, “Computers, Privacy, and the National Data Center,” 811.
8. This last was the Government Accounting Office’s blueprint for a center called FEDNET. Helen Nissenbaum, Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford, CA: Stanford Law Books, 2010), 39. See also Robert Ellis Smith, Ben Franklin’s Website: Privacy and Curiosity from Plymouth Rock to the Internet (Providence, RI: Privacy Journal, 2000), 309–312. “A detectable trend toward increased public criticism of the plans of organizations and their personal records” was also obvious in Britain, according to Malcolm Warner and David Stone, The Data Bank Society: Organizations, Computers and Social Freedom (London: George Allen & Unwin, 1970), 20.
9. They noted that “credential systems became an object of wide-ranging protest in the 1960s,” prompting challenges “to the authority of established public and private institutions” and to the “criteria of individual evaluation” that many organizations employed. Alan F. Westin and Michael A. Baker, Databanks in a Free Society: Computers, Record-Keeping and Privacy (New York: Quadrangle Books, 1972), 343.
10. FOIA was signed, with reservations, by President Lyndon Johnson, and went into effect in 1967. Cornelia Vismann writes that “public debate over the decisive power of records found immediate confirmation in the official information politics of the Vietnam War.” Files: Law and Media Technology, trans. Geoffrey Winthrop-Young (Stanford, CA: Stanford University Press, 2008), 147. On the longer battle over the public’s “right to know,” see Kathleen G. Donohue, “Access Denied: Anticommunism and the Public’s Right to Know,” in Liberty and Justice for All? Rethinking Politics in Cold War America, ed. Kathleen G. Donohue (Amherst: University of Massachusetts Press, 2012), 21–50; and Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Belknap Press of Harvard University Press, 2015). Mary Graham writes that so many exceptions were built into FOIA by Johnson and others that by the time it was approved in committee, “it sparkled like a Christmas tree, its worthy purpose obscured by glittering exceptions”; nine exceptions “took back much of what the disclosure requirements promised the public.” Graham, Presidents’ Secrets, 127, 131.
11. On the distrust of experts and authorities in the 1970s see Peter Carroll, It Seemed like Nothing Happened: America in the 1970s (New Brunswick, NJ: Rutgers University Press, 1990), 235. Edward Berkowitz argues that this was a “crisis of competence” that “defined the seventies.” Something Happened: A Political and Cultural Overview of the Seventies (New York: Columbia University Press, 2006), 6.
12. The Parallax View (1974), dir. Alan J. Pakula, and Three Days of the Condor (1975), dir. Sydney Pollack. Francis Ford Coppola’s The Conversation (1974), in production when Watergate broke, had as its protagonist a surveillance expert who suffers a crisis of conscience.
13. CCTV came into regular use in urban areas in the 1970s as a technology of “public safety” and grew to become so important that it was dubbed the “fifth utility” in some cities. Clive Norris and Gary Armstrong, The Maximum Surveillance Society: The Rise of CCTV (New York: Oxford University Press, 1999). Here the “target hardening” theories of architect Oscar Newman were influential. See his Defensible Space (New York: Macmillan, 1972) and Architectural Design for Crime Prevention (Washington, DC: Department of Justice, 1973). Magnetic stripes were first used on transit tickets in the early 1960s by the London Transit Authority and on credit cards in 1970.
14. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Pantheon, 1977) was the first American edition of Foucault’s work. See Francois Cusset, French Theory: How Foucault, Derrida, Deleuze, & Co. Transformed the Intellectual Life of the United States, trans. Jeff Fort with Josephine Berganza and Marlon Jones (Minneapolis: University of Minnesota Press, 2008), 54–75.
15. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967). See, for example, Westin’s New York Times obituary from 2013. Margalit Fox, “Alan F. Westin, Who Transformed Privacy Debate before the Web Era, Dies at 83,” New York Times, February 23, 2013, p. D7. A second important, early intervention in debates over privacy and data banks was Miller’s The Assault on Privacy.
16. Westin, Privacy and Freedom, 7. For a similar definition of privacy as “control over information about oneself,” see Charles Fried, “Privacy,” Yale Law Journal 77 (1968): 483.
17. Stanton Wheeler, “Problems and Issues in Record-Keeping,” in On Record: Files and Dossiers in American Life, ed. Stanton Wheeler (New Brunswick, NJ: Transaction Books, 1969), 23.
18. “The Computer and Invasions of Privacy,” Hearings before the Subcommittee on Government Operations, Special Subcommittee on Invasion of Privacy, U.S. House of Representatives, 89th Congress, Second Session, July 26–28, 1966; “Computer Privacy,” Hearings before the Subcommittee on the Judiciary, Subcommittee on Administrative Practice and Procedure, Parts I and II, U.S. Senate, 90th Congress, First and Second Session, March 14–15, 1967, and February 6, 1968; “Federal Data Banks, Computers and the Bill of Rights,” Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, U.S. Senate, 92nd Congress, First Session, February-March, 1971. See also “Computerization of Government Files: What Impact on the Individual?” UCLA Law Review 15: 5 (1968): 1371–1498.
19. Among these were Wheeler, ed., On Record; Westin and Baker, Databanks in a Free Society; and James B. Rule, Private Lives and Public Surveillance: Social Control in the Computer Age (New York: Schocken Books, 1974).
20. Robert Wallace, “What Happened to Our Privacy?” Life (April 10, 1964): 10. The article noted that “private business and industry are even more heavily engaged [in dossier-keeping] than the federal government, and often with less reason.”
21. U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Administrative Practice and Procedure, “Government Dossier: Survey of Information Contained in Government Files” (Committee Print) (Washington, DC: U.S. Government Printing Office, 1967), 7–9. Todd Robert Coles, “Does the Privacy Act of 1974 Protect Your Right to Privacy? An Examination of the Routine Use Exemption,” American University Law Review 40 (1991): 957–958, n. 2. See also “Records Maintained by Government Agencies,” Hearings on H.R. 9527 and Related Bills Before a Subcommittee of the House Committee on Government Operations, 92d Congress, 2d Session 22 (1972), which estimated that the “average American is [the] subject of [an] estimated 10–20 files compiled by the federal government on private organizations.”
22. Nan Robertson, “Data Center Held Peril to Privacy,” New York Times, July 27, 1966, p. 41.
23. Richard Harwood, “There’s a Dossier on You,” Washington Post, May 29, 1966, p. E1.
24. The Washington Post described the center as a “harbinger of Big Brother,” while the LA Times warned that “Big Brother May be a Computer.” The New York Times later characterized the National Data Center as “an Orwellian threat to privacy” and “a Big Brother in Washington with an eye on all of (the public).” George Lardner Jr., “Data Center Hearing Warned on Privacy: Hearing on Data Center Cautioned on Privacy,” Washington Post, July 27, 1966, p. A1; Viewpoint of the Times, “ ‘Big Brother’ May be a Computer,” Los Angeles Times, October 8, 1967, p. M7; Nan Robertson, “Data Bank: Peril or Aid? The U.S. Central Data Bank: Would It Threaten Your Privacy?” New York Times, January 7, 1968, p. 1. James Rule noted that “my first sensitivity to these issues came on reading Orwell’s 1984.” Private Lives and Public Surveillance, 15. Cancer Ward (1968) was distributed in samizdat in 1966 in the Soviet Union, with versions available outside the USSR appearing beginning in 1968.
25. U.S. Congress, House of Representatives, Committee on Government Operations, Privacy and the National Data Bank Concept, 90th Congress, 2nd Sess., July 1968 (Washington, DC: U.S. Government Printing Office, 1968), v.
26. Thomas Haigh, “How Data Got Its Base: Information Storage Software in the 1950s and 1960s,” IEEE Annals of the History of Computing (October–December, 2009): 6–25.
27. Jack Star, “The Computer Data Bank: Will it Kill Your Freedom?” Look 32 (June 15, 1968): 29.
28. Lasswell used the term in writing about the potential of using audiovisual media as “social observatories” for social science research: “The archives that contain this material provide a ‘data bank’ available for instructional purposes.” See “Technique of Decision Seminars,” Midwest Journal of Political Science 4: 3 (1960): 213–236; quote on p. 218.
29. Warner and Stone, The Data Bank Society, 28, n. 12; emphasis in original. Rex Malik, “The Databank Society: Can We Cope?” New Scientist and Science Journal (March 4, 1971): 498. Among other things, Malik’s article warned of “government by electronic caprice.” By 1975, the Very Large Database Conference had been organized to share “research and development results in the field of database management.” See www.vldb.org/conference.html.
30. See, for example, Westin and Baker, Databanks in a Free Society, 229.
31. Warner and Stone, The Data Bank Society, 24.
32. COINTELPRO was created by the FBI in 1956 under J. Edgar Hoover as a vehicle to disrupt the Communist Party U.S.A., and it then moved on to other targets. It was exposed in 1971 through a burglary at an FBI field office in Media, Pennsylvania, organized by a group calling itself the Citizens’ Commission to Investigate the FBI. Nelson Blackstock, COINTELPRO: The FBI’s Secret War on Political Freedom (New York: Vintage, 1976); David Cunningham, There’s Something Happening Here: The New Left, the Klan, and FBI Counterintelligence (Berkeley: University of California Press, 2005); David Garrow, The FBI and Martin Luther King, Jr., rev. ed. (New Haven, CT: Yale University Press, 2006); Tim Weiner, Enemies: A History of the FBI (New York: Random House, 2012); Betty Medsger, The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI (New York: Alfred A. Knopf, 2014).
33. Miller, The Assault on Privacy, 54–55.
34. Donohue, “Access Denied,” 29, 46. See also Rosenfeld, Subversives.
35. Josh Lauer argues that commercial surveillance in the United States has from its beginnings outpaced state surveillance systems. For the whole sweep of this history see his Creditworthy: A History of Consumer Surveillance and Financial Identity in America (New York: Columbia University Press, 2017).
36. “New Service Uses Computers to Supply Fast Credit Checks,” New York Times, July 10, 1966, p. 1; Westin, Privacy and Freedom, 305–309.
37. “Retail Credit’s Day in Court,” Privacy Journal 1: 2 (December 1974): 1; “Retail Credit Co. on Trial,” Privacy Journal 1: 11 (September 1975): 4. Intriguingly, Retail Credit attempted to use FCRA against the Federal Trade Commission, arguing that the federal agency should not be privy to its customer files. On the Retail Credit Company, see the exposé “Anything Adverse?” New Yorker, April 21, 1975, as well as Roemer v. Retail Credit Co. of 1975. The company would soon, as a result of all this bad publicity, rename itself Equifax.
38. Even after the passage of FCRA, James Rule reported that the Associated Credit Bureaus “still stipulates that information contained in credit reports ‘must not be revealed to the subject reported on.’ ” Private Lives and Public Surveillance, 212.
39. Robert C. Goldstein and Albert S. Dexter, “Privacy Regulation and Your Computer,” Business Quarterly 40: 4 (Winter 1975): 31.
40. FCRA was passed in 1970 as an amendment to the Consumer Credit Protection Act of 1968.
41. “Under Surveillance: CBS Looks at How People Are Watched,” CBS Television broadcast, December 23, 1971.
42. “Assault on Privacy,” ABC Television broadcast, January 8, 1972. From the program summary: “A penetrating bit of research turns into a most revealing documentary on the ways you’re being checked out by credit investigators and law enforcement agents. It is a story of expanding invasion of privacy, of official surveillance and credit company peeping, perhaps intended to help but often abused or intentionally misused.”
43. Robert Ellis Smith founded and edited the journal, an outgrowth of his work as associate director of the Privacy Project of the ACLU. Subscribers seem to have been those in data-processing fields, business management, government, library work, educational institutions, banking, insurance and credit, as well as civil liberties, public interest, and press groups, with individuals making up 10 percent of the subscription base. The list of subscribers, of course, was “not made available to others.” See “Who Reads Privacy Journal Anyway?” Privacy Journal 1: 9 (July 1975): 8.
44. “Bucking the System,” Privacy Journal 2: 8 (June 1976): 3.
45. Privacy Journal 1: 11 (September 1975): 6; Privacy Journal 1: 6 (April 1975): 3.
46. Sharon Biederman, “Privacy at the Check-Out Counter,” Privacy Journal 1: 3 (January 1975): 1.
47. “American Way,” Privacy Journal 1: 7 (May 1975): 7.
48. Biederman, “Privacy at the Check-Out Counter,” 2.
49. “The Snooper’s Walking Tour,” Privacy Journal 2: 2 (December 1975): 4–6.
50. Paul Armer, “Keeping Your Bills Secret in an Electronic Age,” Privacy Journal 1: 5 (March 1975): 1. The article discussed National Science Foundation funding to explore cashless technologies, including the question of “how deep and how broad the concern for privacy is and how it will impede change in the payments system,” 6. The author explained that “the extreme case, in which all transactions go through the system in real time, obviously represents the greatest threat to privacy” but he thought it unlikely that “we’ll get to the extreme case in the near future, if ever.” There is a mention of a “cashless society” in the notice on “Electronic Funds,” Privacy Journal 1: 1 (November 1974): 2.
51. See the run of Privacy Journal for 1974 and 1975. On cable television see “In the States,” Privacy Journal 1: 6 (April 1975): 5; on the increased rate of wiretapping (conservatively estimated at 1,052 taps intercepting 1.9 million conversations in 1974; these figures did not include unknown illegal taps or unreported ones, wiretaps with the consent of one party, or “service monitoring” by telephone companies), see “The Wired Nation: Wiretaps,” Privacy Journal 1: 9 (July 1975): 1, 6.
52. These are all from Privacy Journal for 1974–1976.
53. See Privacy Journal 1: 4 (February 1975): 5.
54. Vance Packard, “Don’t Tell It to the Computer,” New York Times Magazine (January 8, 1967): 44–45, 89–92.
55. Robert Ellis Smith, Privacy: How to Protect What’s Left of It (Garden City, NY: Anchor Press, 1979). Other titles were Stephen W. Leibholz and Louis D. Wilson, Users’ Guide to Computer Crime: Its Commission, Detection & Prevention (Radnor, PA: Chilton Books, 1974); and a guide book for teenagers, Gerald S. Snyder, The Right To Be Let Alone (New York: Julian Messner, 1976). See also “Government Snooping—How to Fight Back,” U.S. News & World Report (September 22, 1975): 21–23. There were also countervailing how-to guides for snooping, such as John M. Carroll, Confidential Information Sources, Public and Private (Los Angeles: Security World, 1975).
56. Robert A. Wright, “For Privacy from Cranks, Creeps and Crooks, Millions Getting Unlisted Phone Numbers,” New York Times, December 22, 1971, p. 18.
57. National Research Council, Privacy and Confidentiality as Factors in Survey Response (Washington, DC: National Academy of Sciences, 1979), vii.
58. Miller, The Assault on Privacy, 73. For the longer view of the computer revolution, see Martin Campbell-Kelly and William Asprey, Computer: A History of the Information Machine (New York: Westview Press, 1996).
59. Matthew Wisnioski, Engineers for Change: Competing Visions of Technology in 1960s America (Cambridge, MA: MIT Press, 2012). Some experts did warn early on of the dangers of computer power, including Bernard Benson, president of the Benson-Lehner Corporation; Richard Hamming, a Bell Laboratories researcher; and the author David Bergamini. See Westin, Privacy and Freedom, 299–305.
60. Inventory of Automatic Data Processing Equipment in the United States Fiscal Year 1971, General Services Administration; cited in Sam Ervin, Jr., “The First Amendment: A Living Thought in the Computer Age,” Columbia Human Rights Law Review 4 (1972): 25. Westin and Baker give a similar accounting in Databanks in a Free Society. Jerry Rosenberg estimated that there were 45 computers in government use in 1954, 1,946 in 1965, and 2,600 in 1967 in The Death of Privacy, 24.
61. Rosenberg, The Death of Privacy, 24.
62. Miller, The Assault on Privacy, 66.
63. Star, “The Computer Data Bank,” 28.
64. These were the Dunn and Ruggles reports. See Westin, Privacy and Freedom, 317; and Dunn, “The Idea of a National Data Center,” 23.
65. Kaysen et al., “Report of the Task Force on the Storage of and Access to Government Statistics,” 19.
66. Dunn, “The Idea of a National Data Center,” 23. Despite assurances, there were significant worries about individual identification. In follow-up discussions, privacy safeguards of several kinds were proposed, including standards for consent and confidentiality, penalties for transgressors, independence from other agencies, guidelines for secure input and processing, cryptographically coded output, a Public Advisory Committee to oversee operations, and a “devil’s advocate group” that would attempt to acquire data illegally. Sawyer and Schechter, “Computers, Privacy, and the National Data Center,” 815–816. A Harvard Law Review article proposed further safeguards, including the scrambling of individual identifications according to a secret program and the establishment of specific variable boundaries and sample sizes. “Privacy and Efficient Government,” 413–414.
67. Star, “The Computer Data Bank,” 28–29.
68. Roger Piper, The Story of Computers (New York: Harcourt, Brace, 1964), 11.
69. Martin L. Ernst, “What Else Will Computers Do to Us?” Wall Street Journal, October 21, 1970, p. 18.
70. “Federal Data Banks, Computers and the Bill of Rights,” U.S. Senate Hearings (1971), Part I, 24–25. Warner and Stone, although they wrote in this register themselves, derided the “mythology” propagated by “science-fiction writers and ill-informed press articles” about electronic brains. For them, the power of computers was not mythical but “real, and urgent, because they reflect the very substantial information-processing power of present-day machinery.” The Data Bank Society, 29.
71. On the computer as metaphor in American culture more broadly, see Paul N. Edwards, The Closed World: Computers and the Politics of Discourse in Cold War America (Cambridge, MA: MIT Press, 1996), especially 303–351. See also Wisnioski, Engineers for Change.
72. Other novels cited by privacy scholars of the day include Michael Frayn, The Tin Men (1965), Robert A. Heinlein, The Moon Is a Harsh Mistress (1966), Dennis Feltham Jones, Colossus (1966)—the basis of the Colossus film—and Olof Johannesson, The Tale of the Big Computer (1968). Films include Hot Millions, dir. Eric Till (1968) and The Computer Wore Tennis Shoes, dir. Robert Butler (1969). David Burnham’s The Rise of the Computer State: A Chilling Account of the Computer’s Threat to Society (New York: Vintage, 1984) is a later, nonfiction work in this vein.
73. Steven Lubar, “ ‘Do Not Fold, Spindle or Mutilate’: A Cultural History of the Punch Card,” Journal of American Culture 14 (1992): 43–55.
74. IBM cards, Fred Turner notes, were employed symbolically to protest the intertwining of “the corporate world, the university, the military, and the punch-card universe of information.” From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network, and the Rise of Digital Utopianism (Chicago: University of Chicago Press, 2006), 12. Protests occurred at U.C. Santa Barbara, University of Pittsburgh, George Williams University-Montreal, University of Maryland, Howard University, State University of New York at Stony Brook (twice), New York University (where a computer was held for ransom), Fresno State College, University of Wisconsin-Madison (twice), University of Kansas-Lawrence, and Stanford University. David P. Julyk, “ ‘The Trouble with Machines Is People.’ The Computer as Icon in Post-War America: 1946–1970” (PhD diss., University of Michigan, 2008), 214.
75. Star, “The Computer Data Bank,” 27.
76. Warner and Stone, The Data Bank Society, 13, 15.
77. Political mailing lists and direct mail campaigns, pioneered by Richard Vigurie, date from the early 1970s.
78. Isaac Asimov, “The Individualism to Come,” New York Times advertising supplement, sec. 11, January 7, 1973, pp. 12, 13.
79. “A National Survey of the Public’s Attitudes toward Computers” (December 1971); see Ervin, “The First Amendment,” 50. Creative Computing conducted another of the early surveys in 1975; see “Public Attitudes about Computers,” Privacy Journal 2: 4 (February 1976): 1. In a 1983 survey, 48 percent of those polled voiced strong concern about threats to personal privacy from technology, a twofold increase from 1978. Fully 60 percent believed that their privacy required limitations on the use of computers. Louis Harris, “The Road after 1984: A Nationwide Survey of the Public and Its Leaders on the New Technology and Its Consequences for American Life,” 1983. For privacy surveys, see www.privacyexchange.org/iss/surveys/surveys.html.
80. Westin and Baker, Databanks in a Free Society, 343.
81. “FTC Is Assailed on Tax Checking,” New York Times, June 20, 1964, p. 29.
82. “The Paper Prison: Your Government Records,” ABC News Close-Up broadcast, April 25, 1974. Congressional scrutiny led the Department of Defense to discontinue the use of SPNs that year, to stop providing the number to employers, and to enable veterans to have the form reissued without the SPN classification. Two years later, however, the numbers were still being used “extensively” by employers, most certificates still carried the code, and those certificates that had been reissued absent an SPN were “instantly suspect.” “The Codebreakers,” Privacy Journal 2: 10 (August 1976): 7. Note also “blue papers” and the long-standing practice of using discharges to deny benefits to homosexual service members. Margot Canaday, “Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I. Bill,” Journal of American History 90: 3 (2003): 940–941. In both cases, the paperwork followed the ex-soldier into civilian life.
83. Advertisement for “The Paper Prison: Your Government Records,” Chicago Tribune, April 25, 1974, p. B10.
84. “ ‘Paper Prison’ Captivating,” Chicago Tribune, April 25, 1974, p. B10.
85. Philippa Strum, Privacy: The Debate in the United States since 1945 (New York: Harcourt Brace, 1998), 46–47.
86. This was the Social Security Number Task Force of 1970. See Nissenbaum, Privacy in Context, 117–118. Social Security Task Force, “Report to the Commissioner, Social Security Administration,” May 1971, F: SSN-Early History, C12, Social Security History Archives, Baltimore, Maryland [hereafter, SSHA].
87. Memo from Commissioner of Social Security to the Secretary of Health, Education, and Welfare, “Social Security Number Misuse—Possible Congressional Interest,” February 15, 1977, F: SSN-Process, C12, SSHA. This included “identifying information on 256 million peoples … earning histories for 90 percent of the work force; family, financial, and in some cases, medical details on the 38 million people who are entitled to a benefit under one of the programs administered by SSA.”
88. Jack Star, “The Computer Data Bank,” 28.
89. “Social Security Numbers,” Privacy Journal 2: 5 (March 1976): 1.
90. “Social Security Numbers,” Privacy Journal 2: 3 (January 1976): 4. See Flavio Komuves, “We’ve Got Your Number: An Overview of Legislation and Decisions to Control the Use of SSNs as Personal Identifiers,” John Marshall Journal of Computer & Information Law 16 (1998): 529–577.
91. Milton R. Knovitz, “Privacy and the Law: A Philosophical Prelude,” Law and Contemporary Problems 31: 2 (1966): 272–280.
92. Legislative History of the Privacy Act of 1974, Senate and House Committee(s) on Government Operations, CMP-1976-OPS-0021 (September 1, 1976), 932; see Meg Leta Jones, “A Right to a Human in the Loop: Political Constructions of Computer Automation and Personhood,” Social Studies of Science 47: 2 (2017): 216–239; quote on p. 228.
93. Michael A. Baker, “Record Privacy as a Marginal Problem: The Limits of Consciousness and Concern,” in Surveillance, Dataveillance and Personal Freedoms, ed. Staff of the Columbia Human Rights Law Review (Fair Lawn, NJ: R. E. Burdick, 1973), 100, 101, 108–109, 111; emphasis in original.
94. Miller, The Assault on Privacy, 65.
95. See also, for example, Charles A. Reich’s worry about the wiping away of second chances in “Police Questioning of Law Abiding Citizens,” Yale Law Journal 75 (1966): 1161.
96. Arthur Miller, “Computers, Data Banks and Individual Privacy: An Overview,” in Surveillance, Dataveillance and Personal Freedoms, ed. Staff of the Columbia Human Rights Law Review (Fair Lawn, NJ: R. E. Burdick, 1973), 18–19.
97. Miller, The Assault on Privacy, 65.
98. This figure appeared in debates over the National Data Center as well. U.S. Congress, The Computer and the Invasion of Privacy, 2.
99. See “Double Jeopardy,” Privacy Journal 1: 1 (November 1974): 5.
100. Testimony on Fair Credit Reporting Act–1973, Subcommittee on Consumer Credit, Senate Committee on Banking, Housing and Urban Affairs, October 1–4, 10, 1973; quoted in Jones, “A Right to a Human in the Loop,” 226. Attempts to amend the law in 1973 to permit consumers to perform a physical inspection of their credit information did not succeed.
101. Frank Askin, “Surveillance: The Social Science Perspective,” in Surveillance, Dataveillance and Personal Freedoms, ed. Staff of the Columbia Human Rights Law Review (Fair Lawn, NJ: R. E. Burdick, 1973), 87.
102. Edward V. Long, The Intruders: The Invasion of Privacy by Government and Industry (New York: Praeger, 1967), 55.
103. Wheeler, “Problems and Issues in Record-Keeping,” 24. Wheeler noted that records carried more formal legitimacy and authority than the people they represented; had permanence, with a “life far beyond the life-span of given individuals”; were transferable, with a “career independent from that of the person to whom it refers” and indeed had “a life of their own”; were separable from those who supplied their information in the first place and thus had a facelessness “missing from interpersonal communication”; and could be combined, “often without the knowledge of the person whose fate they may be helping to determine,” the composite picture potentially bearing “little resemblance to the person it purports to describe,” 5.
104. Miller, The Assault on Privacy, 65.
105. Miller, The Assault on Privacy, 64–65.
106. U.S. Department of Health, Education, and Welfare, Records, Computers, and the Rights of Citizens (Cambridge, MA: MIT Press, 1973), 92, 167, 111. Helen Nissenbaum calls the report “ground-breaking” in its attempt to balance the benefits of record-keeping systems with protection for citizens. Privacy in Context, 38.
107. Rule, Private Lives and Public Surveillance, 13, 7–8.
108. Rule examined police record systems, vehicle and driver licensing, and National Insurance in Britain along with consumer credit reporting and the BankAmericard system in the United States. He argued that if these systems did not yet constitute a “total surveillance society” a la Orwell—the costs of continuous mass surveillance were simply too high—he argued that they “now monitor some of the most important junctures between private individuals and the major institutions of modern society.” Private Lives and Public Surveillance, 30–31, 36.
109. Rule, Private Lives and Public Surveillance, 39, 42, 331. Rule acknowledged that centralization of personal data in electronic form could lead to enhanced rather than diminished protection of that information, 334, 336. He also raised the issue of sophisticated techonologies of “evasion” arriving in step with new technologies of “control,” such as benefits fraud or “the plastics business,” 342. He believed in particular that the last few decades of increasing mass surveillance had brought the “relaxation of many forms of small-scale surveillance” such as gossip and social shaming and that the very impetus for modern surveillance systems “stems at least partly from the breakdown of their traditional counterparts,” 332.
110. Orville G. Brim Jr., foreword, Databanks in a Free Society, xvii.
111. Westin and Baker, Databanks in a Free Society, 222–223. They argued that the major surge occurred between 1940 and 1955, which they attributed to increased affluence, spending, and travel; the expansion of social programs; the increasing number of students in higher education; and the like.
112. Westin and Baker, Databanks in a Free Society, quote on p. 233.
113. Westin and Baker, Databanks in a Free Society, 237, 249.
114. Westin and Baker, Databanks in a Free Society, 263, 269, 341. In this report (see especially pp. 242–243), Westin backtracked from some of the speculations in his 1967 Privacy and Freedom. Most who wrote from the point of view of business or marketing practices agreed with these assessments, not surprisingly. See Goldstein and Dexter, “Privacy Regulation and Your Computer,” which concluded that “most authorities now agree that information in a computerized system is potentially easier to protect than that in a traditional, manual one,” 30.
115. Westin and Baker, Databanks in a Free Society, 256.
116. Rule, Private Lives and Public Surveillance, 7–8.
117. This was in reference to the new Privacy Act. David S. Broder, “Ford Vows to Enforce New Law on Privacy,” Washington Post, September 22, 1975, p. A2; Philip Shabecoff, “Ford Sees Peril of ‘Big Brother,’ ” New York Times, September 22 1975, p. 13. In fact, Ford, advised by then-Justice Department official Antonin Scalia as well as Richard Cheney and Donald Rumsfeld, had vetoed the Privacy Act out of fears that it would compromise intelligence and FBI information. A sign of the high pitch of privacy concerns in 1974 was that his veto was easily overridden.
118. Richard M. Nixon, Radio Address, February 23, 1974. John T. Woolley and Gerhard Peters, The American Presidency Project [online], www.presidency.ucsb.edu/ws/?pid=4364.
119. Francis W. Sargent, “Politics of Privacy, the View from Massachusetts,” Privacy Journal 1: 6 (April 1975): 1. In fact, Sargent believed the “biggest political problem associated with privacy is not the lack of public support, but the opposite.” He thought it might lead to hasty and poorly conceived remedies.
120. Mary Margaret Penrose, “In the Name of Watergate: Returning FERPA to its Original Design,” NYU Journal of Legislation and Public Policy 14: 1 (February 2011): 75–113. She writes that the scandal bred “a climate of fear, perhaps even paranoia, of ‘private’ information and ‘secret data collection’ attended by an equally compelling desire to know precisely who had what information in their possession,” 83.
121. James Rule, Douglas McAdam, Linda Stearns, and David Uglow, The Politics of Privacy: Planning for Personal Data Systems as Powerful Technologies (New York: Elsevier Press, 1980), 101. In the 92nd and 93rd Congresses alone there were almost 300 bills introduced focused on access to and dissemination of personal data. Jerome J. Hanus and Harold C. Relyea, “A Policy Assessment of the Privacy Act of 1974,” American University Law Review 25: 3 (1976): 567.
122. FOIA was initially enacted in 1966, taking effect in 1967.
123. The privacy of records was a bipartisan issue, although one could see the fissures. Liberals’ faith in the effectiveness of data in attacking social problems put them at odds with an emerging conservative position that attacked data collection itself: the meddling of the IRS, for example, and racial record keeping, which 1960s civil rights legislation and affirmative action made mandatory. The new Supreme Court justice William Rehnquist, for example, was willing to speculate in 1973 that the cleanest solution to the problem of regulating the personal data used in running government programs might be to dismantle some of the programs. William H. Rehnquist, “Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement? Or: Privacy, You’ve Come a Long Way, Baby,” University of Kansas Law Review (1974): 1–23. “Rehnquist on Privacy,” Privacy Journal 1: 1 (November 1974): 4.
124. Freedom of Information Act Guide and Privacy Act Overview (Washington, DC: Office of Information and Privacy, Office of Policy and Communications, U.S. Dept. of Justice, 1992–). The Privacy Act of 1974 would be just one in a series of laws and initiatives addressing the security of data records, including the Social Security Number Task Force of 1970, the Fair Credit Reporting Act of 1970, The Family Educational Rights and Privacy Act of 1974, the Video Privacy Protection Act of 1987, the Computer Matching and Privacy Protection Act of 1988, and the Drivers Privacy Protection Act of 1994. This profusion of bills illustrates what is known as the “sectoral approach” in U.S. privacy law.
125. The period between 1961 and 1979, Alan Westin noted, witnessed the “rise of information privacy as an explicit social, political, and legal issue of the high-technology age.” “Social and Political Dimensions of Privacy,” Journal of Social Issues 59: 2 (2003): 435. In a review of privacy legislation, two experts noted in 1975 that “there now seems to be an irreversible trend in the Western, industrialized world toward recognition of a right of personal privacy, and greater control by individuals over information about them.” Goldstein and Dexter, “Privacy Regulation and Your Computer,” 35–36.
126. David H. Flaherty, Protecting Privacy in Surveillance Societies: The Federal Republic of Germany, Sweden, France, Canada, and the United States (Chapel Hill: University of North Carolina Press, 1989).
127. The HEW report, for example, included reports from Canada, Great Britain, and Sweden. Records, Computers, and the Rights of Citizens, preface (x).
128. This was the Privacy and Protection of Personal Information in Europe report. See Jones, “A Right to a Human in the Loop,” 228.
129. George Sirgiovanni, “The Buckley Amendment,” Freedom of Information Center Report no. 373, School of Journalism, University of Missouri at Columbia (June 1977): 2.
130. The amendment was named for its sponsor, the conservative Republican senator James Buckley of New York, the brother of conservative intellectual William F. Buckley. FERPA was enacted on August 21, 1974, with an effective date of November 19, 1974. It was attached to the omnibus Elementary and Secondary Education Act of 1974 and was amended in January of 1975. The lack of congressional debate may have signaled a rough consensus compared to other provisions regarding school busing and distribution of funds. See Richard D. Lyons, “Senate Backs Access of Parents to School Records of Children,” New York Times, May 15, 1974, p. 29.
131. The NCCE was a grassroots membership organization with affiliates all over the country, funded in part by Ford Foundation monies and assisted on this issue by the Russell Sage Foundation. In 1973 the NCCE replaced the National Citizens Commission for the Public Schools, established in 1956 to lobby for improvements in the public schools; the organization was defunct by 1996. One of President Ford’s staffers noted that advocates of the amendment feared that “school administrators are testing, experimenting, and classifying their children to their detriment” and viewed the legislation “as part of a set of issues which involves neighborhood control of the schools.” Memorandum from Robert R. Belair to David Lissy, “President’s Position on Buckley Amendment,” May 4, 1976, Domestic Council on the Right to Privacy, David H. Lissy Files, 1975–1977, Ford Papers, Gerald R. Ford Library, Ann Arbor, Michigan [henceforth, Ford Papers]. See Albert Shanker, “In the Public Good: A Second Look at the Privacy Law,” Display Advertisement, New York Times, November 24, 1974, p. 213; Eric Wentworth, “Changes Sought on Student File Inspection,” Washington Post, December 9, 1974, p. A2.
132. Wentworth, “Changes Sought in Law on Student File Inspection.” For example, Shirley A. Chisholm, liberal Democrat of New York, and John Ashbrook, conservative Republican of Ohio, were both supporters of the legislation on school files.
133. Michael J. Zdeb, “A Student Right of Privacy: The Developing School Records Controversy,” Loyola University Law Journal 6: 2 (1975): 430, 432–433.
134. Quoted in Diane Divoky, “Cumulative Records: Assault on Privacy,” Learning 2 (September 1973): 18–21.
135. This was the characterization of Katherine Ludlipp, Georgetown Law Center Right of Privacy Seminar. See also Wentworth, “Changes Sought on Student File Inspection.”
136. “The Nation: Open Sesame Street,” Time (December 16, 1974).
137. “School Files: The Law Went too Far,” New York Times, December 15, 1974, p. 235.
138. Sirgiovanni, “The Buckley Amendment,” 2.
139. Diane Divoky, “How Secret School Records Can Hurt Your Child,” Parade Magazine (March 31, 1974). Divoky was approached by the NCCE to write the article for Parade.
140. Divoky, “How Secret School Records Can Hurt Your Child.”
141. Diane Divoky, “Cumulative Records.”
142. Quoted in Divoky, “Cumulative Records.” As Representative Jack Kemp put it, the NEA recommended in 1925 that “health, guidance and psychological records be maintained for—on—each pupil”; the American Council on Education in 1941 developed record forms “that gave more attention to behavior description and evaluations and less to hard data on subjects and grades.” “Student Records: A Proposed Strategy for Preventing Abuses of the Right to Privacy,” Congressional Record, 93rd Congress, second session.
143. She noted that guidance counselors, who produced the most “sensitive and inferential records,” were the staunchest opponents to parental access to student records. Divoky, “Cumulative Records.”
144. Divoky, “How Secret School Records Can Hurt Your Child.” On the centrality of the family dynamic to understandings of psychological development in the postwar era, see Deborah Weinstein, The Pathological Family: Postwar America and the Rise of Family Therapy (Ithaca, NY: Cornell University Press, 2013).
145. Zdeb, “A Student Right of Privacy,” 430, 443. He is quoting Doe v. McMillan, 459 F.2d 1304, 1325 (D.C. Cir. 1972).
146. Zdeb, “A Student Right of Privacy,” 434.
147. This is the difference between the intrusion and the trace; see Dan Bouk, “The History and Political Economy of Personal Data over the Last Two Centuries in Three Acts,” Osiris 31: 1 (2017): 85–106. Indeed, a colleague of the inventor of the MMPI predicted in 1966 that “the invasion of privacy issue is going to be with us for a long time. Centralized computer storage and retrieval of personal information is going to be the next arena.” Roderick D. Buchanan, “On Not Giving Psychology Away: The Minnesota Multiphasic Personality Inventory and Public Controversy over Testing in the 1960s,” History of Psychology 5: 3 (2002): 294.
148. At that time the organization’s name was the National Committee for Public Schools; it had reconstituted itself as the NCCE by 1974. It described itself as “the only national organization dedicated to redressing the imbalance of power in public school governance” and the “only mass membership organization devoted to increasing citizen participation in the educational decision-making process”; emphasis in original. See letter from Katharine L. Auchincloss to Mr. Guzzardi, April 22, 1974; National Committee of Citizens in Education records, Box: 1, Folder: 16, Pennsylvania State Special Collections Library [hereafter NCCE].
149. See test mailing material, titled “Denial of Access and Invasion of Privacy: A Test Mailing in Two Parts,” Box: 1, Folder: 15 (and prior draft in Box: 1 Folder 16), NCCE.
150. “Denial of Access and Invasion of Privacy: A Test Mailing in Two Parts,” Box: 1, Folder: 15, NCCE. The mailer pointed readers to an article for inspiration: Jeremiah S. Gutman, “The Right to Know,” Hastings Center Report 3: 5 (November 1973).
151. National Committee for Citizens in Education, Students, Parents and School Records (Columbia, MD: 1974), 45–50. Key to the question of parents’ rights was the “in loco parentis” doctrine. See memorandum from Sarah C. Carey to Stuart Sandow, “The ‘In Loco Parentis’ Doctrine and Parents’ Right to School Records,” December 7, 1973, Box: 1, Folder: 15, NCCE. See also Sarah C. Carey, “Students, Parents and the School Record Prison: A Legal Strategy for Preventing Abuse,” reprinted in Students, Parents and School Records, 23–43; and Alan H. Levine, Eve Cary, and Diane Divoky, The Rights of Students: An American Civil Liberties Union Handbook (New York: Avon Books, 1973). Advocates of parents’ rights often drew from the 1925 Pierce case holding that “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Cases, such as Merriken v. Cressmen (U.S. District Court for Eastern Pennsylvania), placed limits on the nature and extent of information collection on children’s relationship to their parents; other cases suggested rights of parents to inspect records, such as Van Allen v. McCleary, which turned on a parent’s wish to review the findings of a school psychologist.
152. NCCE, Students, Parents and School Records, vi.
153. Quoted in NCCE, Students, Parents and School Records, 96, 103, 177 (I believe but am not certain that this letter is from a mother), 188, 247 (emphasis in original), 220.
154. Wentworth, “Changes Sought in Law on Student File Inspection.” This detailed language about the range of documents on file was removed when the Act was amended the following year.
155. Melvin J. Goldberg to John Duggan, Vassar College, November 30, 1974, Box: 8, Folders: 2–3, NCCE.
156. Mrs. Alexandria Castagnaro [sp?] to J. William Rioux, February 28, 1975, Box: 8, Folders: 4–6, NCCE. Grateful to NCCE for advice, she explained, “I cannot afford to give anything as yet, but as soon as I can save $15.00 you will be the first to get it.” Emphasis in original.
157. “The Buckley Privacy Amendment Two Years Later,” Congressional Record-Senate, June 3, 1976, S8483. Eric Wentworth, “Unlocking School Files: The Buckley Amendment,” Washington Post, November 17, 1974, p. C5. See also Peter B. Edelman, “Children’s Rights Coming to the Fore,” New York Times, January 15, 1975, p. 71. David Schimmel and Louis Fischer, Rights of Parents in the Education of Their Children (Columbia, MD: National Committee for Citizens in Education, 1977); and the Children’s Defense Fund pamphlet, “Your School Records: Questions & Answers about a New Set of Rights for Parents & Students,” October 1975, Ford Papers.
158. Bowen speech notes on FERPA, Educational Staff Seminar, December 18, 1974, Box: 7, Folder: 26, NCCE.
159. Quoted in Wentworth, “Unlocking School Files.”
160. Milwaukee Journal, November 19, 1977; quoted in Sirgiovanni, “The Buckley Amendment,” 3.
161. These other organizations included the National Urban League, the National Council of Jewish Women, the Urban Policy Research Institute, the Child Welfare League, and the National Council of Catholic Women. NCCE documents indicate an average of one thousand calls a month to its toll-free telephone number; on dialing the callers would be asked for their address so as to receive a card for recording their experiences attempting to access their child’s records; “Hot Line Opened for Citizens in Education Privacy Info,” Education Daily, October 7, 1974, p. 2, Box: 8, Folder: 17, NCCE. On the volume of calls, see notes from the “Women in Community Service” meeting, May 7, 1975, in Box: 8, Folder: 17, NCCE. “News Briefs,” South Carolina School Boards Association, November 20, 1974, Box: 8, Folders: 2–3, NCCE.
162. Memo from NCCE to Thomas McFee, “Recommendations for Final Regulations for the Family Educational Rights and Privacy Act of 1974,” March 4, 1975, Box: 8, Folders: 4–6, NCCE.
163. Louisville Courier-Journal, November 5, 1974; quoted in Sirgiovanni, “The Buckley Amendment,” 3.
164. Memo from Brandon B. Sparkman to Board of School Commissioners, “An Act Passed by Congress—‘Protection of the Rights and Privacy of Parents and Students,’ ” October 30, 1974, Box: 8, Folder: 1, NCCE.
165. “Public Notice,” per order of the Providence School Committee, Providence Journal, November 19, 1974; Box: 8, Folder: 2, NCCE.
166. On the other hand, the executive secretary of the National Association of Secondary School Principals opposed the “panic-button purging of files” since it “suggests that school officials have something to hide and overlooks the fact that records are kept for one purpose only, i.e., to assist the student.” Wentworth, “Unlocking School Files,” C5.
167. Louisville Courier-Journal, November 5, 1974; quoted in Sirgiovanni, “The Buckley Amendment,” 3.
168. Letter from J. William Rioux, April 5, 1974, Box: 8, Folder: 1, NCCE. In Maryland’s case, for example, there was an attempt to distinguish “pupil records” from “pupil nonrecords,” the latter a form of personal property created by a staff member and kept in his or her own files, intended to be “an extension of memory”; “Proposed Draft Bylaw Revision,” Box: 8, Folder: 1, NCCE. And some school administrators applauded, including one from Park Ridge, Illinois, who wrote to the NCCE in thanks for their effort in tackling the issue. “School records,” he lamented, “have grown like topsy.” Merlin W. Schultz to NCCE, November 18, 1974, Box: 8, Folders: 2–3, NCCE.
169. Sirgiovanni, “The Buckley Amendment,” 6. At UCLA, for example, student records could be “scattered in as many as 200 offices around campus.” “Abuse of Educational Records Probed by Privacy Commission,” Access Reports, October 18, 1976, p. 1; “Repeal of Education Privacy Act Urged by Spokesman for Colleges,” Access Reports, November 15, 1976, p. 5.
170. Memo, Robert R. Belair to David Lissy, “President’s Position on Buckley Amendment,” May 6, 1976, folder “Buckley Amendment,” Box 1, Domestic Council, David H. Lissy Files: 1975–1977, Ford Papers. All letters of recommendation were originally made accessible by the law, but FERPA was amended on December 31, 1974, to protect the confidentiality of existing letters and to permit students to waive the right to see their letters. See Edward B. Fiske, “Colleges Ask Students to Forgo Right to See Files,” New York Times, December 3, 1980, p. A1; Alfred Fitt, “The Buckley Amendment: Understanding It, Living with It,” College Board Review (Summer 1975). Fitt, a special adviser at Yale, in a letter to the NCCE leadership, purported to be “dumbfounded” by the legislation: “The act intended to strengthen the rights of parents of school children has, without the slightest consideration of the matter, destroyed the rights of parents of college students”; it had also given students unwise access to their medical records, etc. See Alfred B. Fitt to J. William Rioux, November 4, 1974, Box: 8, Folder: 2–3, NCCE.
171. “School Records,” Privacy Journal 2: 9 (July 1976): 6.
172. Liz Roman Gallese, “Student Job Referrals by Teachers Hit Snags Due to a Privacy Law,” Wall Street Journal, January 14, 1977, p. 1. Others warned of an increase in “bland recommendation letters” because of the risk of students gaining access to them, with “objective” measures like grades and test scores correspondingly gaining more weight. The chancellor of the University of Wisconsin predicted that faculty would wind up “going to the telephone more” to keep their assessments off the record. Sirgiovanni, “The Buckley Amendment,” 5–6; Bart Barnes, “College Entrance Problem: Law Leads to Bland Recommendations,” Washington Post, December 1, 1975, p. A1. Edward B. Fiske, “Access to Students’ Records Still Burdening Schools,” New York Times, February 1, 1976, p. 33.
173. Memo, Robert R. Belair to David Lissy, “President’s Position on Buckley Amendment,” Ford Papers.
174. “College Records,” Privacy Journal 1: 2 (December 1974): 5.
175. Memo from NCCE to Thomas McFee, “Recommendations for Final Regulations for the Family Educational Rights and Privacy Act of 1974,” March 4, 1975, Box: 8, Folders: 4–6, NCCE. Similar complaints would be lodged about the Freedom of Information Act, as Michael Schudson notes in The Rise of the Right to Know, 30–34.
176. A congressional report two years after FERPA’s passage noted that there had been some “purging” of student files, “cleaning out material which is irrelevant, and perhaps damaging, to a student’s education”; it also suggested that the law “has given some educators a much sought-after basis for refusing to turn over files to police, the armed services, or the FBI.” “The Buckley Privacy Amendment Two Years Later,” Congressional Record-Senate, June 3, 1976, S8483. An education news service noted in 1976 that “there hasn’t been a rush by students and parents to look at school records” and that “those who do … seem more bored than titillated by what they find.” “Buckley Law Not So Burdensome after All, Lawyers Say,” Education Daily 9: 59 (March 24, 1976): 1. Estimates of the use of the act varied widely, with some universities claiming hundreds of requests for files and others dozens; Fiske, “Access to Students’ Records.” A New York Times survey of the early impact of FERPA on fourteen college campuses indicated that small numbers of students were taking advantage of their new rights—and those “mainly out of curiosity about items such as their I.Q.’s or their high school letters of recommendation”—and found that parental response in secondary schools had also been modest. Edward B. Fiske, “Law Opening School Files Has Slight Impact so Far,” New York Times, February 17, 1975, p. 22.
177. The other sponsor was Senator Sam Ervin. Edmund Muskie, “The Federal Government and Your Right to Privacy,” Congressional Record-Senate, September 26, 1975, p. 30496; “Government Snooping—How to Fight Back,” 21–23.
178. The Privacy Act was passed on December 31, 1974.
179. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. ed. (New York: Viking, 1964), 289.
180. Miller, The Assault on Privacy, 54.
181. “Focusing on Federal Files,” Washington Post, September 19, 1975, p. A26. See also Jerry Oppenheimer, “Bureaucracy’s Molasses-Like Reluctance to Disclose,” Washington Star, April 1, 1976, p. A1.
182. “Now: Access to Your Own Records,” Privacy Journal 1: 11 (September 1975): 1.
183. Linda Mathews, “Privacy Law Now in Effect,” Los Angeles Times, September 27, 1975, p. 1A.
184. Mathews, “Privacy Law Now in Effect.”
185. Miller, The Assault on Privacy, 71.
186. These were the statements of Mary Lawton, deputy assistant attorney general in the U.S. Justice Department, as quoted by John Painter Jr., “Well-Meant Information, Privacy Acts so Loosely Knit Administrators Going Ape,” Portland Oregonian, March 28, 1976. She was referring here both to the Privacy Act and the newly amended Freedom of Information Act.
187. Mathews, “Privacy Law Now in Effect.”
188. Privacy Act requests were most common for the Department of State, the FBI, and the CIA. Oppenheimer, “Bureaucracy’s Molasses-Like Reluctance to Disclose,” A1. The article notes that the number of lawsuits had climbed significantly as well. “The Buckley Privacy Amendment Two Years Later,” Congressional Record-Senate, June 3, 1976, p. S8483.
189. “The Price Tag,” Privacy Journal 1: 4 (February 1975): 1.
190. Baker, “Record Privacy as a Marginal Problem,” 102.
191. “Inventory of Uncle Sam’s Data Banks,” Privacy Journal 2: 10 (August 1976): 1.
192. Mathews, “Privacy Law Now in Effect.” The advocate was Douglass Lea, counsel to the Senate Judiciary Subcommittee on Constitutional Rights. The U.S. Office of Management and Budget estimated a start-up cost of $100 million and then $200 to $300 million annually for the first four to five years to implement the privacy provisions in the 1974 legislation. See “The Price Tag,” 1. The OMB did expect some savings, however, because of “disincentives to collecting personal data inherent in the legislation.”
193. “Routine use” was interpreted to mean disclosure “compatible with the purpose for which it was collected.” Even as President Ford signed the Privacy Act, he criticized this section as weak. See “In Congress,” Privacy Journal 1: 3 (January 1975): 2.
194. Arthur Miller put it this way, writing about the failure of the proposed National Data Center: “even though public debate and outrage can be successful in a particular case, total reliance on counterattacking against individual information gathering activities will not reverse the growing risk to personal privacy created by an ever-increasing level of federal data collection.” The Assault on Privacy, 82.
195. Myron Brenton, The Privacy Invaders (New York: Coward-McCann, 1964), 10. The exception to this pattern was FCRA, the only law in place at this time to regulate private data banks. Of FCRA, James Rule noted that although it did “involve the consumer more in the processing and selling of information about himself,” it “virtually ratifies the position of credit bureaus with respect to the main patterns of their operations.” As he summarized, the “intent of the Act is clear: to remove some of the popular objections to credit reporting in the interests of making it work as efficiently as possible,” Private Lives and Public Surveillance, 215–216.
196. Edmund Muskie voiced these hopes in “The Federal Government and Your Right to Privacy.”
197. The Privacy Act set up a seven-member commission, “equipped with subpoena power and a budget of $1.5 million to examine for two years privacy issues not included in the act.” Mary Ann Kuhn, “Americans Worry over Growing Loss of Privacy,” Washington Star, September 22, 1975. Originally intended to have broad rulemaking and investigatory powers, it was reduced to a study group. The upshot was that the private sector was mostly exempted from legal scrutiny, except when singled out for regulation, as with FCRA and the credit industry. The failure to regulate the private sector set the stage for future battles over commercial data mining. The contrast to European privacy law, which rigorously regulates corporations’ data collection, is instructive. James Q. Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” Yale Law Journal 113 (2004): 1153–1221.
198. Privacy Journal reported that HEW, which had done so much to inspire privacy legislation through its report on Records, Computers and the Rights of Citizens, had by 1976 “become the battleground for crucial bureaucratic decisions on confidentiality, all of them losses for the remaining privacy advocates in the department.” “New HEW,” Privacy Journal 2: 7 (May 1976): 2.
199. Final Report of the Privacy Protection Study Commission, July 12, 1977, quoted in Jones, “The Right to a Human in the Loop,” 228.
200. See Rule, Private Lives and Public Surveillance, 348.
201. Meg Leta Jones, following Westin, sees the 1980s as a “quiet period” regarding data privacy, with far less commentary and action, even as personal computers were becoming more commonplace. She notes that the Reagan administration was not particularly interested in oversight. Jones, “The Right to a Human in the Loop,” 225, 228. Also see John Shattuck, “In the Shadow of 1984: National Identification Systems, Computer Matching, and Privacy in the United States,” Hastings Law Journal 35 (1983–1984): 997–998. In the 1980s the Electronic Communications Privacy Act extended wiretapping restrictions to the computer transmission of electronic data. The Computer Matching and Privacy Protection Act of 1988 protected subjects of Privacy Act records from being automatically matched with records across agencies. Neither of these laws was particularly stringent or effective, but did mark the beginnings of our current conversation about big data correlations and discrimination.
202. Named for Idaho Senator Frank Church, the formal name of the investigatory body was the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States Senate. It was one of several investigations of intelligence abuses in the 1970s, including the Watergate hearings themselves, the Rockefeller Commission, and the Pike Committee. The outcome would be a “long process of surrounding intelligence gathering with layers of oversight and other legal limits,” yielding bans on assassinations, CIA and NSA surveillance within the United States, mail opening, and agencies’ examination of tax returns, for example. An Intelligence Oversight Board and new Foreign Intelligence Surveillance Court were created as well. Graham, Presidents’ Secrets, 146. For a contemporary perspective on the developing debate, see Richard H. Blum, ed., Surveillance and Espionage in a Free Society (New York: Praeger, 1972).
203. The American Hospital Association had recently specified legitimate users of medical records in Hospital Medical Records: Guidelines for Their Use and the Release of Medical Information (Chicago: American Hospital Association, 1972).
204. Whalen v. Roe, 429 U.S. 589 (1977). The district court had concluded, “An individual’s physical ills and disabilities, the medication he takes, the frequency of his medical consultation are among the most sensitive of personal and psychological sensibilities. One does not normally expect to be required to have to reveal to a government source, at least in our society, these facets of one’s life.” Donna C. Parratt, “Developments in the Right of Privacy: Whalen v. Roe and the Extent of the Right to Anonymity in the Doctor-Patient Relationship,” Congressional Research Service 76–204A (November 1, 1976): 9–10. Also see Doe v. MacMillan on junior high school student records being used by officials in a review of the Washington, DC, schools.
205. Note, however, a set of recent cases that have come before the Court on GPS devices and location tracking (“cell site” information) via mobile phones. See U.S. v. Jones, 132 U.S. 945 (2012), where Justice Sotomayor specifically worried about the aggregation of data, and U.S. v. Carpenter (currently pending), which is likely to address the kind of information accessible through databases. Privacy concerns were also raised about DNA databases in Maryland v. King 569 U.S. (2013).
206. Arthur Miller, “The Surveillance Society: Just How Far Can It Go?” Los Angeles Times, September 6, 1970, pp. C1–2. Miller in this article was most concerned with U.S. Army surveillance of domestic political activity. On dating the term, see David Murakami Wood, “The ‘Surveillance Society’: Questions of History, Place and Culture,” European Journal of Criminology 6 (2): 179–194. Wood notes that it is usually credited to sociologists Gary Marx, Oscar Gandy, and David Lyon, in particular.
207. Oscar H. Gandy Jr., The Panoptic Sort: A Political Economy of Personal Information (Boulder: Westview Press, 1993); David Lyon, The Electronic Eye: The Rise of Surveillance Society (Minneapolis: University of Minnesota Press, 1994), and Surveillance Society: Monitoring Everyday Life (Philadelphia: Open University, 2001); Gary Marx, “What’s New about the ‘New Surveillance’? Classifying for Change and Continuity,” Surveillance & Society 1: 1 (2002): 9–29. David Alan Sklansky notes a telling shift in the uses of Orwell’s Nineteen Eighty-Four in privacy debates over the last several decades: “today, the book is generally seen as a warning not so much about privacy in general as about surveillance,” which he takes as indicative of an overall shift in attention away from physical and toward informational privacy. “Too Much Information: How Not to Think about Privacy and the Fourth Amendment,” California Law Review 102: 5 (2014): 1077, n. 27.
208. Again, Foucault’s writings on discipline, classification, and panopticism may have been influential for these analyses, but it is also quite possible that a grassroots grasp of surveillance preceded its formal theorizing. Certainly, Gilles Deleuze’s notion of the database as the “exemplary new control mechanism in itself” and of individuals as “dividuals, and masses, samples, data, markets, or ‘banks,’ ” aligns with many of the ideas about record systems circulating in the United States in the 1960s and 1970s. Gilles Deleuze, “Postscript on the Societies of Control,” October 59 (Winter 1992): 3–7; emphasis in original.
209. Daniel Rodgers describes the effort by academics in this period to find “a language for power adequate to the era” in Age of Fracture (Cambridge, MA: Belknap Press of Harvard University Press, 2011), 102. See especially his discussion of the intellectual currents undergirding the “dematerialization of power,” 77–110.
1. The revised Freedom of Information Act, FERPA, and the Privacy Act of 1974 were all examples of the former; the Church Committee, the Rockefeller Commission, and the Pike Committee examples of the latter.
2. Mary Graham notes that the efforts in Congress to pull back the secrecy of the executive branch and to promote access to government information were always partial and flawed. Presidents’ Secrets: The Use and Abuse of Hidden Power (New Haven, CT: Yale University Press, 2017), 130. See Archon Fung, Mary Graham, and David Weil, Full Disclosure: The Perils and Promise of Transparency (New York: Cambridge University Press, 2007).
3. As already noted, closed-circuit television, or video surveillance, grew to become so important that it was dubbed the “fifth utility” in some cities. Clive Norris and Gary Armstrong, The Maximum Surveillance Society: The Rise of CCTV (New York: Oxford University Press, 1999). See the writings of architect Oscar Newman: Defensible Space (New York: Macmillan, 1972) and Architectural Design for Crime Prevention (Washington, DC: Department of Justice, 1973).
4. Christian Parenti, The Soft Cage: Surveillance in America from Slavery to the War on Terror (New York: Basic Books, 2003), 195. See Mike Davis, City of Quartz: Excavating the Future in Los Angeles (New York: Verso, 1990), 221–264; and Neil Smith, The New Urban Frontier: Gentrification and the Revanchist City (New York: Routledge, 1996).
5. Bruce J. Schulman, “The Privatization of Everyday Life: Public Policy, Public Services, and Public Space in the 1980s,” in Living in the Eighties, ed. Gil Troy and Vincent J. Cannato (New York: Oxford University Press, 2009), 167–180; quote on p. 168. He notes that in the 1980s, what had been a “secession of the rich” from public services and public life “spread downward,” 169. For broader trends in political culture see his The Seventies: The Great Shift in American Culture, Society, and Politics (New York: Free Press, 2001); Bruce J. Schulman and Julian E. Zelizer, eds., Rightward Bound: Making America Conservative in the 1970s (Cambridge, MA: Harvard University Press, 2008); and Beth Bailey and David Farber, eds., America in the Seventies (Lawrence: University of Kansas, 2004).
6. Schulman, “The Privatization of Everyday Life,” 171. See also Mike Davis, City of Quartz, ch. 4. The privatization of residential communities had its counterpart in enclosed, privatized commercial spaces in the form of shopping malls. See M. Jeff Hardwick, Mall Maker (Philadelphia: University of Pennsylvania Press, 2003); and Michael Sorkin, ed., Variations on a Theme Park (New York: Hill and Wang, 1992).
7. As Michael Schudson argues, “Openness was a key element in the transformation of politics, society, and culture from the late 1950s through the 1970s.” The phrase “right to know” was voiced as early as the Constitutional Convention, but did not appear in Supreme Court rulings or “even in popular rhetoric” until 1945 when journalists began to organize around it. Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Harvard University Press, 2015), 5–6.
8. Samantha Barbas traces the longer history of this tendency in the news industry, starting in the late nineteenth century, in Laws of Image: Privacy and Publicity in America (Stanford, CA: Stanford University Press, 2015).
9. Stanley v. Georgia, 394 U.S. 557 (1969). There was pushback, however, including the pronouncement of “legitimate state interests at stake in stemming the tide of commercialized obscenity” in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
10. As Leigh Ann Wheeler summarizes it, a civil liberties approach “tilted toward freedom to and against freedom from.” This meant that “constitutional sexual privacy played a major role” in the visibility of sex in public. How Sex Became a Civil Liberty (New York: Oxford University Press, 2014), 92, 7–8, 177; emphasis in original. Wheeler traces these developments to the ACLU’s campaigns on behalf of sexual expression, leading to an emphasis on decriminalization of “victimless crimes,” including prostitution and even public solicitation, versus unwanted sexual display.
11. See E. Wayne Karp, Family Matters: Secrecy and Disclosure in the History of Adoption (Cambridge, MA: Harvard University Press, 1998); and Ellen Herman, Kinship by Design: A History of Adoption in the Modern United States (Chicago: University of Chicago Press, 2008).
12. See, for example, Doug C. Rossinow, The Politics of Authenticity: Liberalism, Christianity, and the New Left in America (New York: Columbia University Press, 1998); and Russell Rickford, We Are an African People: Independent Education, Black Power, and the Radical Imagination (New York: Oxford University Press, 2016).
13. Two key works are Sara Evans, Personal Politics: The Roots of Women’s Liberation in the Civil Rights Movement and the New Left (New York: Knopf, 1979); and Ruth Rosen, The World Split Open: How the Women’s Movement Changed America (New York: Viking, 2000).
14. As Robert O. Self writes, “What lived in the shadows of the ‘private’—abortion, rape, homosexuality, sexual harassment and abuse—activists pushed into the public realm.” In this sense, “secrets became public, and then the basis of rights.” All in the Family: The Realignment of American Democracy since the 1960s, repr. ed. (New York: Hill and Wang, 2013), 11. Also see Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (New York: Viking, 2013).
15. See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation, repr. ed (New York: Pantheon, 1983).
16. Kenneth Cmiel, “The Politics of Civility,” in The Sixties: From Memory to History, ed. David Farber (Chapel Hill: University of North Carolina Press, 1994), 263–290; Maurice Isserman and Michael Kazin, “The Failure and Success of the New Radicalism,” in Rise and Fall of the New Deal Order, ed. Steve Fraser and Gary Gerstle (Princeton, NJ: Princeton University Press, 1989), 212–242.
17. Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000), 202.
18. Sam Binkley, Getting Loose: Lifestyle Consumption in the 1970s (Durham, NC: Duke University Press, 2007), 3–4.
19. Bruno Bettelheim observed as early as 1968 a “changing attitude of the younger generation toward privacy,” focused on communality “even in times that they are alone.” Bettelheim, “The Right to Privacy is a Myth,” Saturday Evening Post (July 27, 1968): 8–9. For a dramatic case of “loosening,” see Gay Talese, Thy Neighbor’s Wife (Garden City, NY: Doubleday, 1980).
20. Abigail McCarthy, Private Faces/Public Places (Garden City, NY: Doubleday, 1972), 3–4.
21. McCarthy, Private Faces, 399.
22. McCarthy, Private Faces, 399–400, 405, 407–408, 409–10. She referred to Eisenhower’s hospitalization for a heart attack; Lyndon Johnson had also publicized his scar after gallbladder surgery in 1965, which took many commentators aback. See Schudson, The Rise of the Right to Know, 9.
23. McCarthy, prologue, Private Faces. Her title was taken from a poem by W. H. Auden.
24. McCarthy, Private Faces, 435.
25. This was Myra McPherson.
26. See Schudson, The Rise of the Right to Know, especially ch. 4.
27. Campaign contribution disclosures were enacted in 1974 as an amendment to the 1971 Federal Election Campaign Act and required the disclosure of the names, addresses, and places of business of all citizens who made political contributions over $100. A strange set of bedfellows, including conservative senator James Buckley of New York, former senator Eugene McCarthy, and the New York Civil Liberties Union, along with nine other parties, argued that the provision violated contributors’ political privacy. Lesley Oelsner, “12 Criticize New Vote Law in High Court,” New York Times, September 20, 1975, p. 10. In Buckley v. Valeo (1976), the Supreme Court ruled that disclosure of voters’ information did not violate First or Fourteenth Amendment rights. See Julian E. Zelizer, “Seeds of Cynicism: The Struggle over Campaign Finance, 1956–1974,” Journal of Policy History 14: 1 (2002): 73–111.
28. The Chicago Tribune reported that “most members who have moved on their own to disclose their finances say they did so in an attempt to restore the credibility of government, especially in light of Watergate.” “60 in Congress out of 534 Offer Financial Data,” Chicago Tribune, May 7, 1974, p. B7.
29. This was Representative Louis Frey Jr., Republican of Florida. See “Invasion of Privacy,” Congressional Record 7790 (1974): 7822.
30. Schudson, Rise of the Right to Know, 104.
31. These developments were propelled by a desire to weaken powerful committee chairs and clear the way for liberal legislation. Important in this effort was a liberal coalition, the Democratic Study Group, dedicated to adding “anti-secrecy” amendments to the Legislative Reorganization Act of 1970, a major revision of Congress’s procedural operations, which had not been altered in a significant way since 1946. Schudson persuasively argues that credit for transparency measures properly belongs to those in Congress in the 1960s, not the “Watergate babies” elected in 1975 and 1977. Rise of the Right to Know, 105–134.
32. Schudson, The Rise of the Right to Know. Ralph Nader’s Unsafe at Any Speed was published in 1965. On consumer watchdogs, see Daniel Horowitz, The Anxieties of Affluence: Critiques of American Consumer Culture, 1939–1979 (Amherst: University of Massachusetts Press, 2004), 166–176.
33. Eagleton had been treated for depression three times in the 1960s; the concern was about the mental stability of a man “with a finger on the button.” Joshua M. Glasser notes that while rumors had swirled around Eagleton’s drinking problems and hospitalizations, these did not initially doom his candidacy. The Eighteen-Day Running Mate: McGovern, Eagleton, and a Campaign in Crisis (New Haven, CT: Yale University Press, 2012); see p. 131.
34. This is what John B. Thompson calls the “trouble that can afflict politicians in an age of mediated visibility—phenomena such as the gaffe, the leak, the outburst and the scandal.” He notes that “while the 19th century was the birthplace of mediated scandal, the 20th century was to become its true home.” See “The New Visibility,” Theory, Culture and Society 22 (2005): 31–51, and also his Political Scandal: Power and Visibility in the Media Age (Cambridge: Polity, 2000), chs. 2 and 4.
35. John Robert Greene, Betty Ford: Candor and Courage in the White House (Lawrence: University Press of Kansas, 2004), 28. The scrutiny was in part thanks to the 25th Amendment (ratified in 1967), which made Ford subject to congressional investigation and approval. As Mary Graham notes, his tax returns were scoured, his associates interviewed, and his more than two decades of votes and statements in Congress reviewed. Presidents’ Secrets, 134.
36. This is taken from Ford’s inaugural address, delivered on August 9, 1974.
37. Betty Ford with Chris Chase, The Times of My Life (New York: Harper & Row, 1978), 151.
38. Greene, Betty Ford, xiii. Paul Healy, “Betty Ford: Candor with a Capital C,” Chicago Tribune, January 5, 1975, p. D1.
39. She had a predecessor in Marvella Bayh, wife of the Democratic senator from Indiana, Birch Bayh, who also talked publicly about her surgery. The New York Times reported that a mastectomy was often seen as the “operation that women fear most” and that “up until a few years ago, mastectomy was a subject that was only whispered about outside of doctors’ offices.” Bayh, along with Shirley Temple Black, brought the “once taboo subject into the open.” Judy Klemesrud, “After Breast Cancer Operations, a Difficult Emotional Adjustment,” New York Times, October 1, 1974, p. 46.
40. James T. Patterson observes that early in the twentieth century, patients often refused to reveal diagnoses even to close friends. By mid-century, patients were becoming more open about talking about cancer in particular, as cures appeared on the horizon. The Dread Disease: Cancer and Modern American Culture (Cambridge, MA: Harvard University Press, 1987). Emily K. Abel notes the appearance of a handful of published statements in the mid-1950s with titles like “I Had Breast Cancer” (1954). That particular essay argued, “A deplorable curtain of silence hangs about this subject and it is time we lift it.” Patients were not the only ones to keep a cancer secret. Physicians often withheld information from patients and their families, either a cancer diagnosis or the disease’s extent. “When treatment was necessary, doctors gave just enough information to obtain compliance.” The writer John Gunther discovered the nature of his son’s brain tumor, for example, “only after he ‘peeped’ at the medical records lying on a technician’s desk.” The Inevitable Hour: A History of Caring for Dying Patients in America (Baltimore: Johns Hopkins University Press, 2013), 92–94.
41. Siddhartha Mukherjee, The Emperor of All Maladies: A Biography of Cancer (New York: Scribner, 2011), 26–27.
42. Greene, Betty Ford, 51.
43. Greene, Betty Ford, 51.
44. Suzanne Loebl, “A New Way Must Be Found to Safeguard Medical Privacy,” New York Times, December 7, 1974, p. 29.
45. Greene, Betty Ford, 51–52.
46. See Brenda Stone, “Thousands Seek Breast Cancer Examinations and Information,” Chicago Tribune, October 3, 1974, p. A1. A Chicago Cancer Prevention Center was reported as “being bombarded with calls” after Ford’s surgery. See also Jane E. Brody, “Inquiries Soaring on Breast Cancer,” New York Times, October 6, 1974, p. 21; “ ‘Thank God for Betty Ford’: U.S., U.K. Women Flock to Cancer Clinics,” Toronto Globe and Mail, October 19, 1974, p. 15; Ronald Kotulak, “Can the Mass of Publicity Push a Cure for Cancer?” Chicago Tribune, October 24, 1974, p. B9; and Dorothy Collin, “Many Saved by Telling of Surgery,” Chicago Tribune, January 28, 1975, p. 1. Breast cancer advocates would by the later 1970s rely on such personal testimonies to publicize the need for funding and research, such as Rose Kushner’s memoir, Why Me? (1979) and Betty Rollin’s First You Cry (1976).
47. Stuart Auerbach, “Mrs. Ford a Little Tired but Otherwise Doing Well,” Boston Globe, September 30, 1974, p. 1. Judy Ross, letter to the editor, Los Angeles Times, October 3, 1974, p. C4.
48. Loebl, “A New Way Must Be Found to Safeguard Medical Privacy,” p. 29.
49. Mary McGrory, “First Lady Is ‘Everywoman’ Now,” Boston Globe, October 2, 1974, p. 19. An editorial noted that some Americans “soundly criticize the plethora of publicity about First Lady Betty Ford’s breast cancer as an invasion of privacy,” but took the opposite view. Editorial, Hartford Courant, October 18, 1974, p. 18.
50. Ellen Goodman, “The Doctor’s Code of Silence,” Boston Globe, October 1, 1974, p. 30.
51. “Her malignancy has no bearing whatsoever on the ‘state of the nation,’ nor might I add, is it anyone’s business whether or not President Ford toasts his own English muffins for breakfast and shares a room with his wife.” A. R. Franco, “Allow First Family a Private Life,” Hartford Courant, October 4, 1974, p. 18.
52. Peter Gordy, “What Price News?” Atlanta Constitution, October 7, 1974, p. 5A.
53. For accounts of her comments about “how often she sleeps with the President,” see McCall’s September issue with Myra MacPherson. “They’ve asked me everything but how often I sleep with my husband, and if they’d asked me that I would have told them … as often as possible.” “Betty Answers the Only Question Left Unasked,” Atlanta Constitution, August 21, 1975, p. 1A; “Pillow Talk by Mrs. Ford,” Boston Globe, August 21, 1975, p. 1; “Betty Ford Speaks Her Mind—Again: Secrets of the White House Bedroom,” Los Angeles Times, August 21, 1975, p. B18.
54. Betty Ford, 60 Minutes, July 21, 1975. See also Greene’s account in Betty Ford, 75–79.
55. “Betty Ford Would Accept ‘an Affair’ by Daughter,” New York Times, August 11, 1975, p. 16.
56. Sheila Rabb Weidenfeld, First Lady’s Lady: With the Fords at the White House (New York: G. P. Putnam’s, 1979), 162.
57. Weidenfeld, First Lady’s Lady, 162.
58. Healy, “Betty Ford: Candor with a Capital C.”
59. The White House received 28,000 letters in response to the show, the majority critical. Greene, Betty Ford, 78.
60. Greene, Betty Ford, 83. Greene notes that polls also showed majorities favoring her comments on both her reaction to her daughter’s hypothetical “affair” and the Equal Rights Amendment. See Louis Harris, “Survey Reveals Betty Is a Big Asset for Ford,” Atlanta Constitution, August 9, 1976, p. 2A.
61. Sociologist Michael Schudson argues that after the 1960s, the press became more critical of and adversarial toward established power, billed itself publicly as “aggressive,” and engaged in longer-form, more contextual reporting. Rise of the Right to Know, 150–164. He cites the 1960 scandal over President Eisenhower’s deception about the U.S. downing of a U-2 spy plane over Russia, the Kennedy-Nixon debates, confrontations between journalists and military spokesmen over Vietnam, underground publications, and maverick reporters along with deeper changes in the culture of journalism, governance, and the culture at large—including the rise of a more “critical culture” with the expansion of higher education—as behind this shift. Rise of the Right to Know, 141–143. Throughout the Watergate scandal, Nixon had also been “scrutinized for clues” as to the stability of his mind and marriage. There were rumors of problems with drugs and alcohol, the use of sleeping pills, and “secret visits to a New York psychiatrist” during the 1968 campaign. Andreas Killen, 1973 Nervous Breakdown: Watergate, Warhol, and the Birth of Post-Sixties America (New York: Bloomsbury, 2006), 48–49.
62. Schudson, Rise of the Right to Know, 143–144.
63. The heroic role of the Washington Post’s investigative reporters during Watergate was important here. See Carl Bernstein and Bob Woodward, All the President’s Men (New York: Simon and Schuster, 1974).
64. Thompson, “The New Visibility,” 45.
65. Edward Berkowitz, Something Happened: A Political and Cultural Overview of the Seventies (New York: Columbia University Press, 2006), 217.
66. Greene, Betty Ford, 76. Greene notes that neither Lady Bird Johnson nor Pat Nixon had been asked to give such an interview. This is not to say that earlier First Ladies had been silent about life in the White House. Lady Bird Johnson, for example, published the rather decorous A White House Diary (New York: Holt, Rinehart and Winston, 1970).
67. Weidenfeld, First Lady’s Lady, 168.
68. Greene, Betty Ford, 86.
69. Weidenfeld, First Lady’s Lady; Greene, Betty Ford, 107.
70. See Larry J. Sabato, Feeding Frenzy: Attack Journalism and American Politics (Baltimore, MD: Lanahan, 2000); and Suzanne Garment, Scandal: The Crisis of Mistrust in American Politics (New York: Times Books, 1991).
71. Berkowitz, Something Happened, 102. “Such behavior might have been routine in previous years, but it was also well hidden from public view,” Berkowitz notes. This was, he writes, just one of the “intimate Washington conversations that the public savored during the seventies.”
72. Susan Wise Bauer, Art of the Public Grovel: Sexual Sin and Public Confession in America (Princeton, NJ: Princeton University Press, 2008), 98–99. Bauer notes that the comments were credited with wiping out Carter’s significant lead in the presidential race. She argues that he simply hadn’t mastered the new and requisite “language of public confession.”
73. Marion Winik, “The Neighbor, d. 1978,” The Glen Rock Book of the Dead (Berkeley: Counterpoint, 2007).
74. Emily Nussbaum, “The Great Divide: Norman Lear, Archie Bunker, and the Rise of the Bad Fan,” New Yorker (April 7, 2014). See Saul Austerlitz, Sitcom: A History in 24 Episodes from ‘I Love Lucy’ to ‘Community’ (Chicago: Chicago Review Press, 2014); and Donna McCrohan, Archie & Edith, Mike & Gloria: The Tumultuous History of All in the Family (New York: Workman, 1987).
75. For the fullest account, see Jeffrey Ruoff’s excellent An American Family: A Televised Life (Minneapolis: University of Minnesota Press, 2002). See also Laurie Rupert and Sayanti Ganguly Puckett, “Disillusionment, Divorce, and the Destruction of the American Dream: An American Family and the Rise of Reality TV,” in The Tube Has Spoken, ed. Julie Anne Taddeo and Ken Dvorak (Lexington: University Press of Kentucky, 2010), 83–97; and Andreas Killen’s discussion of the series in 1973 Nervous Breakdown. There were precedents, including a Canadian documentary, The Things I Cannot Change (1966–1967), which tracked an impoverished family, the Baileys, and led to much critique of the filmmakers.
76. Commentators on this aspect of the show have often referred to Lance “coming out” during the filming, but that is not quite accurate. His mother, referring euphemistically to “the life Lance was leading,” simply noted that “for the first time I knew what was going on with Lance in New York.” Pat Loud with Nora Johnson, Pat Loud: A Woman’s Story (New York: Coward, McCann & Geoghegan, 1974), 96.
77. Paula Rabinowitz, They Must Be Represented: The Politics of Documentary (New York: Verso, 1994), 136. Jackie Kennedy’s eccentric cousins, meanwhile, became the subjects of a documentary, Grey Gardens (1975).
78. See Mark Andrejevic, Reality TV: The Work of Being Watched (Lanham, MD: Rowman & Littlefield, 2003); and Taddeo and Dvorak, eds., The Tube Has Spoken.
79. Rabinowitz, They Must Be Represented, 131. See also Jim Lane, The Autobiographical Documentary in America (Madison: University of Wisconsin Press, 2002).
80. Jeffrey Ruoff, “Conventions of Sound in Documentary,” Cinema Journal 32: 3 (Spring 1993): 24–40; quote on p. 26. He cites Joyce Chopra’s Joyce at 34 (1972), Amalie Rothschild’s Nana, Mom, and Me (1974), and Jill Godmilow’s Antonia: Portrait of a Woman (1974), all of which explored personal issues in the growing women’s movement. See also Ed Pincus’s autobiographical Diaries, 1971–76 (1981), which “turned the camera on his own marriage and family life for more than five years”; he edited the twenty-eight hours of footage into a three-and-a-half-hour film in 1981. William Yardley, “Ed Pincus, Documentary Filmmaker, Dies at 75,” New York Times, November 8, 2013, p. A33.
81. Ruoff quotes the former president of NET as saying that the transitional moment between NET and PBS was likely the only moment that the documentary could have been made “in the history of public TV.” An American Family, 5.
82. Ruoff, An American Family, xii.
83. Ruoff, An American Family, xviii.
84. Margaret Mead, “As Significant as the Invention of Drama or the Novel,” TV Guide (January 6, 1973): A61.
85. It registers as #32 on TV Guide’s “50 Greatest Shows of All Time” list.
86. Sam Binkley writes that it appeared “to confirm the obsolescence of the nuclear family itself—a sign of increased liberty to some, but a frightening indicator of larger processes of social uprootedness and moral confusion to others.” Getting Loose, 63.
87. See, for example, John Carmody, “ ‘American Family’: Shattered American Dream,” Washington Post, December 1, 1972, p. D1; Stephanie Harrington, “An American Family Lives Its Life on TV,” New York Times, January 7, 1973, p. 141; “Future of the Family,” Atlanta Constitution, March 17, 1973, p. 4A; and Pat Colander, “One Man’s Family—The Norm Exposed,” Chicago Tribune, April 3, 1975, p. B1. See also Shana Alexander, “The Silence of the Louds,” Newsweek (January 22, 1973): 28.
88. Tom Shales, “On Camera Again,” Washington Post, February 22, 1973, p. C1. One critic pointed out that the filmmakers were not subjects of the film, though at times they outnumbered the family and “must have constituted a major feature of life in the household during the filming.” Bernard Beck, “Ghost in the Family,” Society 11 (January/February, 1974): 80.
89. Paula Rabinowitz cites the influence on the documentary of 1960s cinéma vérité: “Its reality, authenticity, spontaneity, unmediated truth, and direct access to emotion signaled a break with both Hollywood and the overt theatricality of 1930s documentary forms.” They Must Be Represented, 133–134.
90. Ella Taylor, Prime-Time Families: Television Culture in Postwar America (Berkeley: University of California Press, 1989), 44. In the 1970s, “family became a forum of rare articulation of social conflicts of all kinds,” 65. She points out that television families in the 1970s were either “troubled” (with divorced or single parents) or “intact” but set in the past, as in The Waltons or Little House on the Prairie, 50.
91. See Jason Landrum and Deborah Carmichael, “Jeffrey Ruoff’s An American Family: A Televised Life—Reviewing the Roots of Reality Television,” Film & History: An Interdisciplinary Journal of Film and Television Studies 32: 1 (2002); Killen notes that 1973 was a “uniquely creative year” in film. 1973 Nervous Breakdown, 76.
92. Killen, 1973 Nervous Breakdown, 76.
93. Among the changes were of course the reproductive rights rulings handed down by the court from Griswold v. Connecticut to Roe v. Wade.
94. According to Ruoff, phone taps were installed by Susan Raymond. An American Family, 46. As Killen observes, the filming in effect “entailed an extensive bugging operation—from telephone taps to the mikes installed throughout the house … to the numerous cameras, all positioned to provide maximum coverage.” 1973 Nervous Breakdown, 57. Nixon in 1971 installed a voice-activated recording system that secretly recorded all conversations in the Oval Office. It was more sophisticated than the systems of his predecessors, but not a major departure. FDR had recorded press conferences via a microphone in a lamp on his desk in the Oval Office. JFK used concealed microphones that transmitted to a reel-to-reel recorder in the White House basement. Johnson had secretaries listen in on phone calls when he was Senate majority leader and secretly recorded some phone calls as vice president; as president, he installed microphones in the Cabinet Room, Oval Office, his secretaries’ desks, the Situation Room, his White House bedroom, and his ranch in Texas. See Bruce J. Schulman, “Taping History,” Journal of American History 85: 2 (September 1998): 571–572.
95. Allen D. Grimshaw, “Whose Privacy? What Harm?” Sociological Methods and Research 11: 2 (November 1982): 234.
96. Loud, Pat Loud, 125. Pat claimed that she was persuaded to tell Bill on camera by both Gilbert and the Raymonds: “Craig wanted me to because he said it was real and inevitable and everything led up to it.” She added, “Alan and Susan concurred that Bill should be told of my decision on camera unprepared,” 128.
97. Loud, Pat Loud, 116–117.
98. Laurie Winer, “Reality Replay,” New Yorker (April 25, 2011).
99. Ruoff, An American Family, 26–27. Bill Loud was able to have a few lines of his removed from an episode, for example; Loud, Pat Loud, 134.
100. Ruoff, An American Family, 27.
101. Loud, Pat Loud, 96, 108, 91.
102. Note that the editors, though they did not spend time with the Louds in person, themselves became enmeshed with the family, feeling that their lives were “becoming more real than our own.” Ruoff, An American Family, 42.
103. See Loud, Pat Loud, 111.
104. Loud, Pat Loud, 122. She also said it made the event “less stark a horror,” 181.
105. Loud, Pat Loud, 122.
106. Loud, Pat Loud, 133, 135.
107. Anne Roiphe, “Things Are Keen but Could Be Keener,” New York Times Magazine (February 18, 1973): 292.
108. Loud, Pat Loud, 137.
109. Ruoff, An American Family, 105.
110. Shales, “On Camera Again.”
111. Pat Loud, Letter to the Forum for Contemporary History, February 23, 1973; reprinted in Ron Goulart, An American Family (New York: Warner Paperback Library, 1973), 237. As Jeffrey Ruoff writes, it was “the broadcast, not the shooting,” that “radically transformed their private lives.” An American Family, 38.
112. See Ruoff, An American Family, xviii, 115.
113. Harrington, “An American Family Lives Its Life on TV,” 141.
114. Grimshaw, “Whose Privacy? What Harm?” 239, 234. See Galella v. Onassis, 487 F.2d 986 (1973), an early paparazzi case.
115. Calvin Pryluck, “Ultimately We Are All Outsiders: The Ethics of Documentary Filming,” Journal of the University Film Association 28: 1 (Winter 1976): 21–29; quotes on pp. 21, 23.
116. Pryluck observed that documentarian Frederick Wiseman finds, “as did Allen Funt, of Candid Camera—that few people do object.” He noted that Funt would boast that “we get 997 out of every thousand releases without pressure.” But that did not surprise him, because he believed the method for obtaining consent to be stacked in the filmmaker’s favor: the “initiative and momentum of the situation favor the filmmaker,” as did the very presence of the film crew. “Ultimately We Are All Outsiders,” 22.
117. Pryluck wrote, “In our society there is a profound social respect for the right to decide for one’s self how to live one’s life,” which includes the right to be free from “harassment, humiliation, shame, and indignity.” “Ultimately We Are All Outsiders,” 24–25.
118. Shales, “On Camera Again.”
119. Elizabeth Jensen, “Lance Loud’s Last Testament,” Los Angeles Times, January 6, 2003, p. E1.
120. Quoted in Ruoff, An American Family, xv.
121. Roiphe, “Things Are Keen but Could Be Keener.”
122. Pat Loud, Letter to the Forum for Contemporary History, 234.
123. See, for example, Harrington, “An American Family Lives Its Life on TV,” 141.
124. Ruoff, An American Family, 110.
125. Two scholars argue that “the empathy built throughout the series for Mrs. Loud’s marital dilemma, the choice between preserving a dysfunctional family or ending the charade of the typically 1950s style ideal family” echoed the “doubts and shifting values” of those watching. Landrum and Carmichael, “Jeffrey Ruoff’s An American Family,” 68.
126. Abigail McCarthy, “ ‘An American Family’ and ‘The Family of Man,’ ” The Atlantic (July 1973): 72–76. As she and others noted, Gilbert had searched for a family “already in trouble,” one in the mold of the fictional characters in Ross Macdonald’s detective novels, also using as a contact Santa Barbara family therapists.
127. Loud, Pat Loud, 16, 170. See excerpts of clippings and also letters to Pat, 164–172.
128. Stephanie Harrington noted “the compulsion” with which “you find yourself sticking with the Louds,” likening the show to “your favorite soap opera.” “An American Family Lives Its Life on TV,” 141.
129. Roiphe, “Things Are Keen but Could be Keener.”
130. McCarthy, Private Faces.
131. McCarthy, “ ‘An American Family’ and ‘The Family of Man.’ ”
132. Loud, Pat Loud, 92. She added, “Crowds gather around television crews everywhere.”
133. Pat Loud, Letter to the Forum for Contemporary History, 234. She repeats this in “An American Family: Real-Life Louds Recall Their Days as TV’s Louds,” Chicago Tribune, April 22, 1973, p. A2.
134. Pat Loud, Letter to the Forum for Contemporary History, 238.
135. Beck, “Ghost in the Family,” 80. See also Richard Schickel, Intimate Strangers: The Culture of Celebrity in America (Garden City, NY: Doubleday, 1985).
136. As for herself, “I dragged a bit at first.” Pat Loud, 90, 109.
137. Harrington, “An American Family Lives Its Life on TV,” 141.
138. Less “typical” was the family’s size, with five children. Ruoff notes that this exasperated PBS, given that following all seven members of the family would make the filming more expensive than anticipated.
139. See Ruoff, An American Family, 67.
140. Loud, Pat Loud, 174.
141. Ruoff, An American Family, 89.
142. Roiphe, “Things Are Keen but Could be Keener”; Rabinowitz, They Must Be Represented, 140–141.
143. Shales, “On Camera Again.” On the other hand, both parents at times decried the influence of television on their children. Pat described it as every parent’s problem, and Bill remarked that he wished he’d thrown the family’s TV set “into the Pacific.” Ruoff, An American Family, 107.
144. Loud, Pat Loud, 125–129. At another point she described the argument in which she confronted Bill with his infidelities as “probably my best scene.” Shales, “On Camera Again,” p. C10.
145. Loud, Pat Loud, 16. Lance too talked about his parents’ separation as “a scene” that had been rehearsed many times.
146. Shales, “On Camera Again.”
147. Loud, Pat Loud, 48.
148. Beck, “Ghost in the Family,” 80. A writer for The New Republic had made a similar analysis. Roger Rosenblatt argued that “the Louds were born a TV program waiting to be discovered. They had always thought of themselves as a family show.” See Killen, 1973 Nervous Breakdown, 63.
149. Lynn Spigel, Make Room for TV: Television and the Family Ideal in Postwar America (Chicago: University of Chicago Press, 1991); Cecilia Tichi, Electronic Hearth: Creating an American Television Culture (New York: Oxford University Press, 1991). Andreas Killen sees the series as a response to the “ ‘reality deficit’ that TV had itself produced” in vehicles like The Brady Bunch. 1973 Nervous Breakdown, 5. Ella Taylor calls network TV the “uncrowned queen of popular entertainment,” with 4.4 million families owning TV sets by 1950 and 50 million sets sold by 1960. Prime-Time Families, 20.
150. Taylor, Prime-Time Families, 1. She writes that during the first two decades of its history, the “episodic series established itself as television’s characteristic genre”; this made for a “continuous chronicle of domesticity that has provided a changing commentary on family life,” 17.
151. T. Coffin, “Television’s Effects on Leisure-Time Activities,” Journal of Applied Psychology 32 (1948): 550–558.
152. Vincent M. Rue, “Television and the Family: The Question of Control,” Family Coordinator 23: 1 (January 1974): 73–81; quotes on 73, 78, 79. For the statistics, see Television Factbook, 1969–1970.
153. Candid Camera began as a radio show (called Candid Microphone) in 1947 and by 1960 was a hit show for CBS (1960–1966), garnering in 1960–1961 the seventh highest ratings in the nation. See Wolfgang Saxon, “Allen Funt, Creator of ‘Candid Camera,’ is Dead at 84,” New York Times, September 7, 1999, p. 9. See Fred Nadis, “Citizen Funt: Surveillance as Cold War Entertainment,” in The Tube Has Spoken: Reality TV & History, ed. Julie Anne Taddeo and Ken Dvorak (Lexington: University Press of Kentucky, 2010), 11–26.
154. Allen Funt, Eavesdropper at Large: Adventures in Human Nature with ‘Candid Mike’ and ‘Candid Camera’ (New York: Vanguard Press, 1952), 23, 205.
155. Allen Funt and Philip Reed, Candidly, Allen Funt: A Million Smiles Later (New York: Barricade Books, 1994) 11.
156. Funt himself noted that up until this point “concealed microphones had been used a good deal in criminology, to some extent by secret government agents, but hardly at all in broadcasting.” Eavesdropper at Large, 17.
157. Erving Goffman, The Presentation of Self in Everyday Life (Garden City, NY: Doubleday, 1959); Daniel J. Boorstin, The Image: A Guide to Pseudo-Events in America (New York: Harper & Row 1964).
158. See “An American Family Fights Back,” Boston Globe, and “Art Is Talking back to Life—The Nelsons Are Hitting the Neilsens,” Chicago Sun-Times; cited in Ruoff, An American Family, 162.
159. John O’Connor, “Mr. & Mrs. Loud, Meet the Bradys,” New York Times, March 4, 1973, p. 137.
160. Shales, “On Camera Again.”
161. This episode of the Dick Cavett Show aired February 20, 1973.
162. Warner Paperback Library published a printed version of series, with commentaries appended, to transcripts of twelve episodes plus photos. The back cover read, in all caps, “never before has television probed so close to human truth.”
163. O’Connor, “Mr. & Mrs. Loud, Meet the Bradys,” p. 137. To another critic, however, Craig Gilbert appeared “distraught—more visibly shaken by the experience than any of the family members.” The Louds’ criticism “has reportedly driven Gilbert back into psychoanalysis.” Shales, “On Camera Again.”
164. Ann Japenga, “ ‘An American Family’ 8 Years Later,” Los Angeles Times, January 6, 1980, p. I1.
165. Shales, “On Camera Again.”
166. O’Connor, “Mr. & Mrs. Loud, Meet the Bradys.”
167. Loud, Pat Loud, 162.
168. O’Connor, “Mr. & Mrs. Loud, Meet the Bradys.” He noted that the Louds “almost doubled ratings for the Cavett show.”
169. Loud, Pat Loud, 19.
170. “The Broken Family: Divorce U.S. Style,” Newsweek (March 12, 1973): 45–57; Tom Donnelly, “The Loud Phenomenon,” Washington Post, July 1, 1973, p. F1.
171. Donnelly, “The Loud Phenomenon.”
172. Harry Shearer, “An American Family: A Televised Life,” Wilson Quarterly 26: 3 (Summer 2002): 118–119.
173. See Rabinowitz, They Must Be Represented, 141. Lance had corresponded with Andy Warhol even before An American Family arrived on the scene; afterward he would report for Warhol’s Interview magazine. Andreas Killen notes Lance’s “infatuation with Warhol,” dying his hair and beginning a correspondence with him before the series began. 1973 Nervous Breakdown, 71.
174. Thomas J. Lueck, “Lance Loud, 50, Part of Family Documentary,” New York Times, December 29, 2001, p. D7.
175. Donnelly, “The Loud Phenomenon.” Indeed, journalists kept an eye on the Louds, reporting in 1976 for instance that Pat was reading manuscripts for a New York literary agency; that Bill, now 55, had remarried; and that Lance was appearing in New York nightclubs with his rock band. Tom Bronzini, “Postscript: The Continuing Saga of an American Family,” Los Angeles Times, October 22, 1976, p. D1; Japenga, “ ‘An American Family’ 8 Years Later”; John Carman, “Ho Hum, the Loud Family Is Back,” Atlanta Constitution, August 11, 1983, p. 7B. A whole series of retrospectives began in 1978, including the film Five Years Later, for ABC; the HBO broadcast of Susan and Alan Raymond’s An American Family Revisited in 1983; and People’s profile of the family in 1993 to mark the twentieth anniversary of the series. In 1982, one reporter announced, “The surprise ending” was that “the Louds have turned out just fine.” The parents had made new lives for themselves on opposite coasts and the five Loud children were out on their own. Lance, at 30, was—almost too neatly—attending the School for Television Arts. Bill said that his former wife was “probably the best friend I have” and that they regularly talked on the phone. The article concluded that the Louds were in better touch with each other, and healthier, than most families. Scott Kraft, “Family Broken on TV Heals in Real Life,” Chicago Tribune, April 4, 1982, p. B1.
176. Shearer, “An American Family: A Televised Life.”
177. Ruoff, An American Family, 123.
178. Ruoff, An American Family, 106.
179. Pat appeared on TV to promote her autobiography, in which she wrote (some) about appearing on TV. Ruoff, An American Family, 123.
180. Harrington, “An American Family Lives Its Life on TV,” 141.
181. “American Family: Real-Life Louds Recall Their Days as TV’s Louds,” p. A2. Bill and Pat had write-ups, and the children were all interviewed separately.
182. As the New York Times noted in Lance’s obituary, “Perhaps most shocking to an audience that had rarely witnessed frank portrayals of homosexuality on television, were scenes of Mr. Loud himself coming out. He was shown wearing blue lipstick, and, after moving to the Chelsea Hotel in Manhattan, introducing his mother to a world of transvestites and hustlers.” Lueck, “Lance Loud, 50, Part of Family Documentary.”
183. O’Connor, “Mr. & Mrs. Loud, Meet the Bradys,” p. 137.
184. Roiphe, “Things Are Keen but Could be Keener.”
185. Here, Roiphe admired Pat’s bravery and self-control rather than her emotiveness—her ability to hide her feelings from the camera and maybe from herself.
186. Roiphe’s visceral language provoked a strong counter-response from the Gay Activist Alliance and set the wheels turning regarding attention to representations of gays on commercial TV. Killen, 1973 Nervous Breakdown, 71.
187. Harrington, “An American Family Lives Its Life on TV,” 141.
188. Eve Kosofsky Sedgwick, Epistemology of the Closet, rev. ed. (Berkeley: University of California Press, 2008), 67.
189. Jenifer Dodd notes that “egoistic” homosexuality remained in the DSM, a kind of compromise measure that allowed some forms of homosexuality to remain pathologized. The American Psychiatric Association specified that those “who are either bothered by, in conflict with, or wish to change their sexual orientation” could still be diagnosed as ill under a new category called “sexual orientation disturbance.” “ ‘Compulsive Rapism’: Psychiatric Approaches to Sexual Violence in the 1980s” (PhD diss., Vanderbilt University, 2016).
190. Ruoff, An American Family, 127–128. The second critic is columnist Frank Rich. Killen calls the series a “touchstone for gay culture.” 1973 Nervous Breakdown, 75.
191. Ruoff, An American Family, 127.
192. Catharine A. MacKinnon, “Privacy v. Equality,” in Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987), 100.
193. George Chauncey has argued that “gay people in the pre-war [pre-WWI] years … did not speak of coming out of what we call the gay closet but rather of coming out into what they called homosexual society or the gay world, a world neither so small, nor so isolated, nor … so hidden as ‘closet’ implies.” Gay New York: Gender, Urban Culture and the Making of the Gay Male World, 1890–1940 (New York: Pantheon, 1994), 7. Psychologist Evelyn Hooker has been credited with introducing the use of the term “coming out” to the academic community in the 1950s.
194. The homosexual rights movement began to form allegiances with “sympathetic heterosexual liberals” in this period and was in accord about “the right to sexual freedom in private.” Larry Gross, Contested Closets: The Politics and Ethics of Outing (Minneapolis: University of Minnesota Press, 1993), 146. This is not to say that gay life was marked by “silence, invisibility, and isolation,” as John D’Emilio points out in Sexual Politics, Sexual Communities (Chicago: University of Chicago Press, 1983)—only that communities often found a logic in keeping their sexuality hidden from outsiders. Marc Stein, City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945–1972 (Chicago: University of Chicago Press, 2000).
195. Self, All in the Family, 78. As Gross notes, after gay liberation came on the scene, “there was no longer any consensus among either homosexuals or their allies that gay rights should be confined to the right to privacy.” Contested Closets, 146.
196. See William N. Eskridge Jr., “Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961,” Florida State University Law Review (1997): 703–840; and “Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981,” Hofstra Law Review 25 (1997): 817–970.
197. Self, All in the Family, 78. In this way, Self argues, sexual freedom “pushed against liberalism’s insistence of the sanctity of the line between public and private,” 100.
198. Many social movements were coming to terms with lack of visibility as a potentially greater harm than scrutiny in this period. As Kenneth B. Clark had observed in his study of Harlem, African American respondents freely talked about crimes they had committed, which he took as their response to someone actually listening to them. Dark Ghetto: Dilemmas of Social Power (New York: Harper & Row, 1965), xviii–ix. The Black Panthers also launched an analysis of social neglect as the other side of the coin to overt oppression. See Alondra Nelson, Body and Soul: The Black Panthers and the Fight against Medical Discrimination (Minneapolis: University of Minnesota Press, 2011), 11, 64–65.
199. Humphreys accused Edward Sagarin, a well-known sociologist of homosexuality and critical reviewer of Tearoom Trade, of homophobia and came out himself. See Glenn A. Goodwin, Irving Louis Horowitz, and Peter M. Nardi, “Laud Humphreys: A Pioneer in the Practice of Social Science,” Sociological Inquiry 61: 2 (1991): 145. Sagarin had written one of the earliest calls for homosexual civil equality as a gay man in 1951, under the name of Donald Webster Cory (The Homosexual in America: A Subjective Approach). But by the 1970s he was “well known within sociology as a fierce opponent of gay liberation.” See Gross, Contested Closets, 16–17.
200. Time’s cover for its September 8, 1975, issue read, “ ‘I Am a Homosexual: The Gay Drive for Acceptance.” The issue included two articles, “Gays on the March” and a brief profile of Leonard Matlovich titled “The Sergeant v. the Air Force.”
201. “Gays on the March.”
202. Laud Humphreys had been chastised for imperiling the collective privacy of men in the tearooms, an instructive contrast.
203. “Gays on the March.”
204. William Cooney, “Ex-Marine Probably Saved Ford,” San Francisco Chronicle, September 23, 1975; Frank Del Olmo and Daryl Lembke, “Ex-Marine Deflects Weapon as Woman Shoots,” Los Angeles Times, September 23, 1975, p. 3; Daryl Lembke, “Hero in Ford Shooting Active Among S.F. Gays,” Los Angeles Times, September 25, 1975, p. 3; Fred W. Friendly, “Gays, Privacy and a Free Press,” Washington Post, April 8, 1990, p. B7. See Elizabeth A. Armstrong, Forging Gay Identities: Organizing Sexuality in San Francisco, 1950–1994 (Chicago: University of Chicago Press, 2002). Sipple v. Chronicle Publishing Co., 154 Cal. App. 3d 1040 (1984) 201 Cal.Rptr. 665.
205. Goodwin et al., “Laud Humphreys,” 144.
206. Goodwin et al., “Laud Humphreys,” 146.
207. Irving Louis Horowitz, Tributes: Personal Reflections on a Century of Social Research (New Brunswick, NJ: Transaction, 2004), ch. 20. See also Peter M. Nardi, “ ‘The Breastplate of Righteousness’: Twenty-Five Years after Laud Humphreys’ Tearoom Trade: Impersonal Sex in Public Places,” Journal of Homosexuality 30: 2 (1995): 1–10. Another scholar found that Humphreys’s findings held up well two decades later, both the demographics of participants in tearooms and their specific manner of interaction. See Frederick J. Desroches, “Tearoom Trade: A Research Update,” Qualitative Sociology 13: 1 (1990): 39–61. Phillip Brian Harper praises Humphreys’s closing chapter on “What’s Wrong with Public Sex” as “an extremely lucid and cogent explication of the problem.” Private Affairs: Critical Ventures in the Culture of Social Relations (New York: New York University Press, 1999), 74; for the entire discussion, see pp. 73–77. See also Janice M. Irvine, “ ‘The Sociologist as Voyeur’: Social Theory and Sexuality Research, 1910–1978,” Qualitative Sociology 26: 4 (Winter 2003): 429–30.
208. As William Leap wrote, “The regulatory power of the state has already established all of these locations [where gay sex occurs] as public locations,” and that “claims to sexual (and other) privacy are constructed in spite of public regulation.” Public and private were thus “relative, almost subjective interpretations of local terrain.” He noted the fiction of claims to privacy since they came always with the possibility of intrusion, supervision, and disruption. “In this sense, all sites of sexual practice are public locations, and any claims to privacy which unfold there are fictional claims.” Discussions of “sex-in-public-places,” he argued, raise “questions about the meaning of public, and the sources which give the term its regulatory power.” Leap, ed., Public Sex/Gay Space (New York: Columbia University Press, 1999), 4, 9, 14; emphasis in original. See also Dangerous Bedfellows and Ephen Glenn Colter, eds., Policing Public Sex: Queer Politics and the Future of AIDS Activism (Boston: South End Press, 1996).
209. Leap, ed., Public Sex/Gay Space, 14. See also Zachary Schrag, Ethical Imperialism: Institutional Review Boards and the Social Sciences, 1965–2009 (Baltimore: Johns Hopkins University Press, 2010), for more recent arguments about the harm of IRB regulations to research in history.
210. Larry Gross writes, “The gay movement of the early 1980s … had placed the right to privacy at the center of its agenda. Flying the same banner liberalizing movements had used to secure the right to contraception and abortion and to force back the forces of sexual censorship, the reformist wing of the gay movement used the rhetoric of privacy rather than the more subversive language of sexual liberation.” Contested Closets, 33–34.
211. A critic describes the ruling as an example of the way “privacy rights have been gerrymandered by the courts,” functioning as “an instrument used by government to promote socially desirable ways of life, rather than a source of protection for those seeking relief from official coercion.” Juliet Williams, “Privacy in the (Too Much) Information Age,” in Public Affairs: Politics in the Age of Sex Scandals, ed. Paul Apostolidis and Juliet A. Williams (Durham, NC: Duke University Press, 2004), 219–220.
212. Peter Clecak characterized the 1960s and 1970s as ushering in a revolution in the “culture and politics of everyday life” such that “individuals began to conceive of themselves as possessing equal rights to self-fulfillment and to a greater measure of control over their inner and outer lives.” America’s Quest for the Ideal Self: Dissent and Fulfillment in the 60s and 70s (New York: Oxford University Press, 1983), 212–213.
213. The 1970s gay liberation movement, writes historian Heather Murray, “marked a moment of hope that gay individuals would no longer just be faintly—or even pruriently—imagined figures in North American life.” This early, ebullient moment passed fairly quickly. Not in This Family: Gays and the Meaning of Kinship in Postwar North America (Philadelphia: University of Pennsylvania Press, 2010), 78.
214. This was Scott Tucker, quoted in Gross, Contested Closets, 146. See Scott Tucker, The Queer Question: Essays on Desire and Democracy, with a foreword by Sarah Schulman (Boston: South End Press, 1997).
215. Gross, Contested Closets, 146.
216. Bowers v. Hardwick, 478 U.S. 186 (1986). The ruling aligned with a neoconservative definition of privacy that was explicitly normative and aimed to preserve a certain version of heterosexual privilege even as it enlisted a libertarian understanding of privacy in the economic sphere.
217. Conservatives referred to it derisively as the “so-called right of privacy” and skepticism about privacy rights had helped torpedo Robert Bork’s Supreme Court nomination; by the 1980s, this was “becoming something of a secret handshake on the right,” Jamal Greene notes. “The So-Called Right to Privacy,” UC Davis Law Review 43 (2010): 715–747.
218. Marc Stein, Sexual Injustice: Supreme Court Decisions from Griswold to Roe (Chapel Hill: University of North Carolina Press, 2010). Lawrence v. Texas, 539 U.S. 558 (2003).
219. Richard D. Mohr, Gay Ideas: Outing and Other Controversies (Boston: Beacon Press, 1992), 17.
220. Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002), 158. See also Kendall Thomas, “Beyond the Privacy Principle,” Columbia Law Review 92 (1992): 1461–1467; Janet Halley, “Reasoning about Sodomy: Act and Identity in and after Bowers v. Hardwick,” Virginia Law Review 79 (1993): 1721–1780; and Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship (Durham, NC: Duke University Press, 1997).
221. The disease was initially referred to as “gay related immune disorder”; by 1982 it had been renamed “acquired immunodeficiency syndrome” by the Centers for Disease Control. Steven Epstein, Impure Science: AIDS, Activism and the Politics of Knowledge (Berkeley: University of California Press, 1996), 46–48. Heather Murray gives the figure of 5,600 deaths by 1984 and nearly 50,000 by 1988. Not in This Family, 137, citing Sean Wilentz, The Age of Reagan: A History, 1974–2008 (New York: HarperCollins, 2008), 186. See also John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper and Row, 1988), 354–355. Reagan would not discuss AIDS publicly until 1987. See Dennis Altman, AIDS in the Mind of America (Garden City, NY: Doubleday, 1986), 118.
222. Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Cambridge, MA: Belknap Press of Harvard University Press, 2017), 223. As Fairchild et al. write, “By writing and speaking publicly about their experiences, women with cancer sought to remove the stigma and silence they saw as surrounding the disease; they challenged existing treatment paradigms and demanded a great role in medical decision making.” They also “demanded to be counted,” for both symbolic and political reasons. As would be the case with AIDS visibility, activists claimed that “the government was devoting paltry financial resources to a problem of unrecognized magnitude. Surveillance thus became a lever in a struggle for greater government funding that would drive research agendas.” The Cancer Registries Amendment Act was signed into law in 1992. See Amy L. Fairchild, Ronald Bayer, and James Colgrove with Daniel Wolfe, Searching Eyes: Privacy, the State, and Disease Surveillance in America (Berkeley: University of California Press, 2007), 135.
223. Mohr writes that “it is no accident that the outing movement … came into being almost simultaneously—in the early spring of 1990—with the coming into being of the social and political movement Queer Nation,” which was committed to the visibility of gay life. Gay Ideas, 47.
224. See Randy Shilts, And the Band Played On: Politics, People, and the AIDS Epidemic (New York: St. Martin’s, 1987); Martin Duberman, Cures: A Gay Man’s Odyssey (New York: Dutton, 1991); and Epstein, Impure Knowledge.
225. There was strong opposition by privacy and gay rights activists to the reporting of HIV-infected people to state public health registries, despite pledges of confidentiality from health officials. This was unlike the case of cancer registries in this period, where “many people with illness would demand the right to be counted so that the extent of their afflictions could serve as a prod for social reform and ameliorative legislation.” Fairchild et al., Searching Eyes, 137, 228–229, xix. See their more general discussion of the right to privacy and patient advocacy, 83–112.
226. Quoted in Michelangelo Signorile, Queer in America: Sex, the Media, and the Closets of Power (Madison: University of Wisconsin Press, 1993; 2003), 87.
227. Joshua Gamson, “Silence, Death, and the Invisible Enemy: AIDS Activism and Social Movement ‘Newness,’ ” Social Problems 36 (1989): 351–367.
228. Lee Edelman, Homographesis: Essays in Gay Literary and Cultural Theory (New York: Routledge, 1994), 82. Edelman criticized the slogan for its “insistence upon the therapeutic property of discourse without specifying in any way what should or must be said. Indeed, as a text produced in response to a medical and political emergency, ‘Silence=Death’ is a stunningly self-reflexive slogan,” 87.
229. By deliberate contrast, the national project of an AIDS quilt publicized names of those who died of the disease. On press treatments of AIDS, see Gross, Contested Closets, 53. He notes that the San Francisco Chronicle was the only major newspaper to report AIDS deaths as such, but that gay readers became astute decoders of obituaries.
230. Murray, Not in This Family, 192.
231. Gross, Contested Closets, 34.
232. Signorile, Queer in America, 70. Note his reference to Bowers v. Hardwick as a “crushing blow,” 86–87. See also Vito Russo, The Celluloid Closet: Homosexuality in the Movies (New York: Harper & Row, 1981).
233. Gross, Contested Closets, 35; Signorile, Queer in America, 73.
234. Signorile, Queer in America, xv.
235. Michelangelo Signorile, “The Secret Gay Life of Malcolm Forbes,” OutWeek (March 18, 1999): 40.
236. See Kenji Yoshino, “Covering,” Yale Law Journal 111 (2011): 769–939.
237. Signorile, Queer in America, 73. Roger Rosenblatt characterized outing as a logical contradiction that implied “homosexuals have a right to private choice but not to private lives.” “Who Killed Privacy?” New York Times Magazine (January 31, 1993): 24–28.
238. Signorile, Queer in America, xv.
239. Signorile, Queer in America, 68; see also 192.
240. Richard Mohr noted in 1992 that outing was almost universally opposed in the gay press and within gay political and legal organizations. Gay Ideas, 11–12. Andrew Sullivan, gay conservative and editor of The New Republic, was among those who denounced what he called “queer revolt” and liberationist homosexual politics, exemplified by celebrity outing. Sullivan argued that outing “depends upon the kind of discourse in which something hidden is revealed, something shameful exposed, something secret stigmatized,” Virtually Normal: An Argument about Homosexuality (New York: Alfred A. Knopf, 1995), 78–79. See also Harper’s discussion in Private Affairs, 89–124.
241. See Margot Canaday’s discussion of “blue” or undesirable discharges, between honorable and dishonorable, which allowed the impression “that there is something radically wrong with the man in question”—“something so mysterious that it cannot be talked about or written down but must be left to the imagination.” “Building a Straight State: Sexuality and Social Citizenship under the 1944 G.I. Bill,” Journal of American History 90: 3 (2003): 949. She notes that some preferred dishonorable discharge to the implication of homosexuality; indeed, going AWOL was a lesser stigma than being known as a homosexual, 952.
242. Signorile, Queer in America, 76, 313–315, 163.
243. Signorile, Queer in America, 75.
244. Gross, Contested Closets, 57.
245. Signorile, Queer in America, 80; emphasis in original.
246. Adding to the sensation was the fact that the Starr Report was made available online. Office of the Independent Counsel, Referral to the U.S. House of Representatives pursuant to Title 28, United States Code § 595(c), September 9, 1998, accessed at http://thomas.loc.gov/icreport/. For interpretations, see Lauren Berlant and Lisa Duggan, eds., Our Monica, Ourselves: The Clinton Affair and the National Interest (New York: New York University Press, 2001); and Paul Apostolidis and Juliet A. Williams, eds., Public Affairs: Politics in the Age of Sex Scandals (Durham, NC: Duke University Press, 2004).
247. Renata Adler described Lewinsky as “not one to understate” her reported nine “in-person” sexual encounters with the president. “Decoding the Starr Report,” Vanity Fair (December 1998): 118. See Lauren Berlant, The Female Complaint: The Unfinished Business of Sentimentality in American Culture (Durham, NC: Duke University Press, 2008); Thompson, Political Scandal; and Wesley O. Hagood, Presidential Sex: From the Founding Fathers to Bill Clinton (Secaucus, NJ: Carol Publishing Group, 1998).
248. William J. Clinton and Hillary Clinton, “Governor and Mrs. Bill Clinton Discuss Adultery,” 60 Minutes, NBC, January 26, 1992.
249. See Joan Didion, “Clinton Agonistes,” New York Review of Books (October 22, 1998): 16–23.
250. As Dave Tell notes, many applauded this performance. A. M. Rosenthal, the conservative columnist, wrote that the Clintons gave the American people “a gift” by treating them “as adults.” He added: “we can at least treasure the hope that Americans would be fed up with the slavering inquisition on politicians’ sexual history.” Dave Tell, Confessional Crises and Cultural Politics in Twentieth-Century America (University Park: Pennsylvania State University Press, 2013), 162.
251. Bauer, The Art of the Public Grovel, 178. The 50 percent figure is for the time between January 21 and April 20, 1998.
252. Bauer, The Art of the Public Grovel, 244.
253. Adler, “Decoding the Starr Report,” 116–24, 128–36; quotes on pp. 116 and 118.
254. Didion, “Clinton Agonistes,” 22.
255. William Bennett, The Death of Outrage; quoted by Tell, Confessional Crises, 163.
256. As many noted, partisans would reverse the positions they had taken in the Clarence Thomas–Anita Hill controversy that erupted with Thomas’s nomination to the Supreme Court in 1992.
257. All quoted in Tell, Confessional Crises, 168, 162.
258. Adler, “Decoding the Starr Report,” 116.
259. Adler, “Decoding the Starr Report,” 134.
260. Bauer, Art of the Public Grovel, 162.
261. Nancy Cott argues that public acceptance of Clinton’s affairs demonstrates that “his sexual transgressions were between him and his wife” and that a decoupling of marriage from public morality had been effected, such that marriage was no longer a “pillar of the state.” Public Vows, 199–200. Didion, “Clinton Agonistes,” 20. See also Barbara Leah Harman, “In Internet Age, Not Even President Has Privacy,” New York Times, September 19, 1998, p. A14. Noting Clinton’s high levels of support from African Americans in particular, Orlando Patterson argued that “one reason African-Americans have so steadfastly stood by the President, in spite of his having done so little for them, is that “their history has been one long violation of their privacy.” “What is Freedom without Privacy,” New York Times, September 15, 1998, p. A27. Some cultural critics noticed that, no matter how beleaguered the president, his assumption that it was public office that had revoked his privacy marginalized the daily violations of privacy suffered by minorities in the United States. By insisting that “even Presidents have private lives,” Clinton implied that ordinary citizens did have that privilege, “for whom it remains unproblematically inviolate so long as they do not voluntarily, altruistically, assume the responsibilities of public office.” Harper, Private Affairs, x.
262. Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000), 167.
263. Susan Bauer argues that Clinton’s first statement was not contrite enough and too legalistic for many commentators, but an August statement to the public and a “confession” at a September prayer breakfast in Washington, DC, fit the bill much better. See her discussion of Clinton’s multiple confessions in The Art of the Public Grovel, 152–182. Tell argues that by this point there was a battle over “which standards should govern public confession.” Confessional Crises, 153.
1. Others have used the phrases “the society of self-disclosure” or “the expository society.” See John B. Thompson, “The New Visibility,” Theory, Culture and Society 22 (2005): 38–39; and Bernard E. Harcourt, Exposed: Desire and Disobedience in the Digital Age (Cambridge, MA: Harvard University Press, 2015).
2. David Bromwich, “How Publicity Makes People Real,” Social Research 68: 1 (Spring 2001): 145. This entire issue of Social Research is devoted to privacy, concluding with a discussion of the question, “Is Privacy Now Possible?” A sign of the times, just a year earlier, Social Philosophy and Policy 17: 2 (Summer 2000) also dedicated an entire issue to privacy.
3. Anita L. Allen, Unpopular Privacy: What Must We Hide? (New York: Oxford University Press, 2011), xi, xii. She cites some moves already made in this direction, such as the Children’s Online Privacy Protection Act of 1998, designed to prevent children under 13 from disclosing personal data to websites. Why not, she asks, extend such restrictions to adults?
4. For example, Whalen v. Roe, 429 U.S. 589 (1977).
5. Peter Brooks, Troubling Confessions (Chicago: University of Chicago Press, 2000), 4. Brooks provides a capsule history of criminal and Catholic confession. He and other scholars point to Augustine’s confessions and spiritual autobiography as the oldest published form of confessional speech. These would be modernized by writers like Daniel Defoe and Jean-Jacques Rousseau in the eighteenth century, which is sometimes seen as the first “memoir boom.”
6. Brooks, Troubling Confessions, 4, 140, 9.
7. Brooks, Troubling Confessions, 89.
8. One scholar of the confessional turn, for example, states merely that it is “well known and well documented” that we live in a “confessional culture.” Dave Tell, Confessional Crises and Cultural Politics in Twentieth-Century America (University Park: Pennsylvania State University Press, 2013), 1. For many, the point of departure is Michel Foucault’s statement: “We have become a singularly confessing society.… One confesses in public and in private, to one’s parents, one’s educators, one’s doctor, to those one loves; one admits to oneself, in pleasure and in pain, things it would be impossible to tell to anyone else, the things people write books about. One confesses—or is forced to confess.” The History of Sexuality, trans. Robert Hurley, vol. 1 (New York: Pantheon, 1978), 59.
9. Gini Graham Scott, Can We Talk? The Power and Influence of Talk Shows (New York: Insight Books, 1996).
10. Susan Harding, The Book of Jerry Falwell: Fundamentalist Language and Politics (Princeton, NJ: Princeton University Press, 2000), especially 153–182; Susan Wise Bauer, The Art of the Public Grovel: Sexual Sin and Public Confession in America (Princeton, NJ: Princeton University Press, 2008).
11. Mari Boor Tonn, for example, notes that the 1990s saw “increasing casting of social controversies such as affirmative action, escalating crime, and welfare reform in the language of ‘conversation,’ ‘dialogue,’ and the therapeutic talk of healing, dysfunction, coping, self-esteem, and empowerment.” “Taking Conversation, Dialogue, and Therapy Public,” Rhetoric & Public Affairs 8: 3 (2005): 405–430; quote on p. 405. See Wendy Kaminer, I’m Dysfunctional, You’re Dysfunctional: The Recovery Movement and Other Self-Help Fashions (Reading, MA: Addison-Wesley, 1992); Leslie Irvine, Codependent Forevermore: The Invention of Self in a Twelve-Step Group (Chicago: University of Chicago Press, 1999); and Eva S. Moskowitz, In Therapy We Trust: America’s Obsession with Self-Fulfillment (Baltimore: Johns Hopkins University Press, 2001), 218–278.
12. The uptick of the “apology phenomenon” in the later 1990s is the subject of Aaron Lazare, On Apology (New York: Oxford University Press, 2004), 6–7. He views pseudo apologies as part of “so many trash confessional and forgiveness programs on television,” 9.
13. See Tell, Confessional Crises, 146–179
14. Bauer, Art of the Public Grovel, 159.
15. Brooks, Troubling Confessions, 167.
16. Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013), 168. At mid-decade, the ACLU received letters from all over the country complaining of this practice, a response to an era of unprecedented sexual visibility in books, magazines, and movies, 165. Others insisted that there is “no right of privacy for people in the public arena” and there could be no restrictions on speech under the First Amendment, 168. While the emphasis would be on free speech, there was a successful campaign for protections of postal privacy following complaints (200,000 in 1966 alone) about unsolicited sexual mailings. In 1970, the Supreme Court announced that “a mailer’s right to communicate” must “stop at the mailbox of an unreceptive addressee” in order to “protect minors and the privacy of homes,” 87.
17. Gary T. Marx, Windows into the Soul: Surveillance and Society in an Age of High Technology (Chicago: University of Chicago Press, 2016), 30.
18. Daniel Mendelsohn, “But Enough about Me: What Does the Popularity of Memoirs Tell Us about Ourselves?” New Yorker (January 25, 2010).
19. See Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), 53.
20. Brooks, Troubling Confessions, 9, 4, 140.
21. Tell, Confessional Crises, 2. He notes that True Story was not classified as a “confession magazine” until the 1950s, however; 21.
22. See, for example, John F. Kasson, Amusing the Million: Coney Island at the Turn of the Century (New York: Hill & Wang, 1978); Kathy Peiss, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York (Philadelphia: Temple University Press, 1986); Claude S. Fischer, America Calling: A Social History of the Telephone to 1940 (Berkeley: University of California Press, 1992); Philip Cushman, Constructing the Self, Constructing America: A Cultural History of Psychotherapy (Reading, MA: Addison-Wesley, 1995); Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002), who describes confessional poetry as part of a “general personalizing of public discourse in the cold war era,” 31; and Sam Binkley, Getting Loose: Lifestyle Consumption in the 1970s (Durham, NC: Duke University Press, 2007).
23. Peter Brooks observes that Catholic confessions began as public acts. Troubling Confessions, 91.
24. Bauer, The Art of the Public Grovel, 5, 63, 68–69, 122. In 1960, the Federal Communications Commission changed its policy from allotting time for free to recognized mainline religious groups to selling airtime to fulfill public service programming, 70. On Graham’s influence, see Grant Wacker, America’s Pastor: Billy Graham and the Shaping of a Nation (Cambridge, MA: Belknap Press of Harvard University Press, 2014); and George M. Marsden, Fundamentalism and American Culture, 2nd ed. (New York: Oxford University Press, 2006).
25. Bauer, The Art of the Public Grovel, 118. She writes that the Bakkers’ show was “a confessional program not primarily because of the Bakkers’ religious bent, but because the talk shows of the 1980s were fundamentally confessional.” Implicated in scandals, the Bakkers quit their television program in 1987, thirteen years after it was first aired.
26. Ellen Herman, The Romance of American Psychology: Political Culture in an Age of Experts (Berkeley: University of California Press, 1994).
27. Essayist V. S. Pritchett, for example, noted the “tremendous expansion in autobiographical writing” already in 1956, ascribing it in part to the “dominant influence of psychological theory.” Quoted in Ben Yagoda, Memoir: A History (New York: Riverhead Books, 2009), 238.
28. On the therapeutic, see Elisabeth Lasch-Quinn, “Liberation Therapeutics: From Moral Renewal to Consciousness Raising,” in Therapeutic Culture: Triumph and Defeat, ed. Jonathan B. Imber (New Brunswick, NJ: Transaction, 2004), 3–18. She writes of the “belief in primacy of personal authenticity, now associated with emotional disclosure” and the retreat from politics to psychic solace or self-help such that the therapeutic self triumphs over the citizen. Also see James Nolan, The Therapeutic State: Justifying Government at Century’s End (New York: New York University Press, 1998); Lauren Berlant, The Female Complaint: The Unfinished Business of Sentimentality in American Culture (Durham, NC: Duke University Press, 2008); and Elizabeth Lunbeck, The Americanization of Narcissism (Cambridge, MA: Harvard University Press, 2014).
29. Est (Erhard Seminars Training), for example, was a two-weekend course that offered personal transformation, accountability and possibility. See Sheridan Fenwick, Getting It: The Psychology of est (New York: J. B. Lippincott, 1976).
30. Jessica Grogan chronicles the movement in Encountering America: Humanistic Psychology, Sixties Culture, and the Shaping of the Modern Self (New York: Perennial, 2013), 19; on encounter groups specifically, see 189–208. For some participants, she writes, “These unconstrained opportunities for self-expression were wildly liberating,” expressing an “extraordinary desire for emotional intensity.” Encounter groups came out of academia and corporate training. T-groups of the 1950s and early 1960s had emerged at National Training Laboratories in Bethel, Maine, and were focused on working together; analyzing experiences, feelings, perceptions, and behaviors; and the realm of interpersonal dynamics rather than personal transformation, 192–193.
31. Joy Gould Boyum, “Cinema Verite’s Orwellian Aspect,” Wall Street Journal, May 4, 1973, p. 10.
32. Boyum, “Cinema Verite’s Orwellian Aspect,” 10. Boyum was reviewing John Whitmore’s 1973 documentary on encounter groups, Here Comes Every Body.
33. The Oprah Winfrey Show aired from September 8, 1986, to May 25, 2011, and remains the highest-rated talk show in television history. In 2009 its viewership was estimated at 42 million a week in the United States alone. See Kathryn Lofton, Oprah: The Gospel of an Icon (Berkeley: University of California Press, 2011), 2–3; and Franny Nudelman, “Beyond the Talking Cure: Listening to Female Testimony on The Oprah Winfrey Show,” in Inventing the Psychological: Toward a Cultural History of Emotional Life in America, ed. Joel Pfister and Nancy Schnog (New Haven, CT: Yale University Press, 1997), 302. See also Micki McGee, Self-Help, Inc.: Makeover Culture in American Life (New York: Oxford University Press, 2005).
34. Jeremy Green, “Jonathan Franzen, Oprah Winfrey, and the Future of the Social Novel,” in Late Postmodernism: American Fiction at the Millennium (New York: Palgrave Macmillan, 2005), 88. See also Adrian Jones, “Oprah on the Couch: Franzen, Frey, Foucault, and the Book Club Confessions,” in Compelling Confessions: The Politics of Personal Disclosure, ed. Suzanne Diamond (Madison, NJ: Fairleigh Dickinson University Press, 2011), 94–109.
35. Lofton, Oprah, 8, 4. As she notes, Winfrey’s turn from TV as entertainment to TV as transformation in the mid-1990s was a response to her weariness with the exhibitionism of “trash TV.” Janice Peck details the program’s “configuration of self, illness, and technology of healing,” in The Age of Oprah: Cultural Icon for the Neoliberal Era (Boulder, CO: Paradigm, 2008), 39.
36. Many observers have blamed these developments on the “personal politics” of the 1960s and 1970, and especially the feminist movement. See Jean Bethke Elshtain, “The Displacement of Politics,” in Public and Private in Thought and Practice, ed. Jeff Weintraub and Krishan Kumar (Chicago: University of Chicago Press, 1997), 166–181; and Christopher Lasch, The Culture of Narcissism: American Life in an Age of Diminishing Expectations (New York: Norton, 1978), 3–30.
37. Nancy Fraser, “From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age,” New Left Review 212 (July–August 1995): 68–93.
38. Anthony Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Stanford, CA: Stanford University Press, 1991), 225.
39. Heather Murray, Not in This Family: Gays and the Meaning of Kinship in Postwar North America (Philadelphia: University of Pennsylvania Press, 2010), 183. Murray explains that parents and children were urged to talk through these matters together and that parents themselves began speaking more publicly about their relationships with their gay and lesbian children in the 1990s; see p. 189. She links this trend to the coincident rise of the “tell-all biography genre.” See Evan Ember-Black, Secrets in Families and Family Therapy (New York: W. W. Norton, 1993); and Jeffrey Weeks, “Intimate Citizenship and the Culture of Sexual Story Telling,” in Sexual Cultures: Community, Values and Intimacy, ed. Jeffrey Weeks and Janet Hollands (New York: St. Martin’s, 1996), 34–52.
40. Blanche Wiesen Cook writes about the continuing “romance of the closet” in the 1980s and 1990s. “Outing History,” in The Seductions of Biography, ed. Mary Rhiel and David Suchoff (New York: Routledge, 1996), 70.
41. Murray, Not in This Family, 193–195. Revealing how far the scales were tipping toward disclosure, Murray writes that “discretion was a scarcely acknowledged strategy or value” within gay culture and politics in this period.
42. Pat Loud with Nora Johnson, Pat Loud: A Woman’s Story (New York: Bantam Books, 1974). Jeffrey Ruoff, An American Family: A Televised Life (Minneapolis: University of Minnesota Press, 2002), 135.
43. Loud, Pat Loud, 15; emphasis in original.
44. Quoted in Andreas Killen, 1973 Nervous Breakdown: Watergate, Warhol, and the Birth of Post-Sixties America (New York: Bloomsbury, 2006), 61; Ruoff, An American Family, 106.
45. Stephanie Harrington, “An American Family Lives Its Life on TV,” New York Times, January 7, 1973, p. 141.
46. Loud, Pat Loud, 56.
47. Even those who saw the genre as very old thought there was something new afoot, although they couldn’t always put their finger on it. As Daniel Mendelsohn noted, “Confessional memoirs have been irresistible to both writers and readers for a very long time, and, pretty much from the beginning, people have been complaining about the shallowness, the opportunism, the lying, the betrayals, the narcissism. This raises the question of just why the current spate of autobiography feels somehow different, somehow ‘worse’ than ever before—more narcissistic and more disturbing in its implications.” “But Enough about Me.”
48. Yagoda, Memoir, 226–227.
49. Mendelsohn, “But Enough about Me.” Sven Birkerts employs the term “traumatic memoir” to describe “a distinct subgenre” in which the memoirists engage in “private salvage operations.” The Art of Time in Memoir: Then, Again (St. Paul, MN: Graywolf Press, 2008), 145.
50. Sidonie Smith, Subjectivity, Identity, and the Body: Women’s Autobiographical Practices in the Twentieth Century (Bloomington: Indiana University Press, 1993), 159.
51. Ann Fabian, The Unvarnished Truth: Personal Narratives in Nineteenth-Century America (Berkeley: University of California Press, 2000).
52. See Henry Louis Gates Jr., ed., The Classic Slave Narratives (New York: Signet, 2002).
53. Yagoda, Memoir, 2.
54. Tom Donnelly, “A Life Story Mighty like a Novel,” Washington Post, April 9, 1974, p. B1.
55. Robert Kirsch, “Pat Loud a Part of the Age of Exposure,” Los Angeles Times, April 28, 1974, p. O62.
56. Kirsch, “Pat Loud a Part of the Age of Exposure.” Indeed, a film scholar calls Pat’s chapters on An American Family “the most remarkable testimony by the subject of a documentary in the history of the medium.” Ruoff, An American Family, 125.
57. Loud, Pat Loud, 19.
58. Bill Loud claimed that his ex-wife received $150,000 for writing the autobiography.
59. She referenced her shared fate with McGovern’s short-lived vice presidential running mate in 1972: “Me and Eagleton, with our brief flashes of fame,” Loud, Pat Loud, 214.
60. In 1980, the rest of the Louds were still talking to the press but Pat, wrote a reporter, “simply doesn’t want to talk about the series anymore. ‘I’m a literary agent,’ she says. ‘I just work. My family is very ordinary.’ ” Ann Japenga, “ ‘An American Family’ 8 Years Later,” Los Angeles Times, January 6, 1980, p. I1.
61. The same article also quotes Lance as saying that while he has views on the series, “I’m through giving them away.” Scott Kraft, “Family Broken on TV Heals in Real Life,” Chicago Tribune, April 4, 1982, p. B1.
62. Loud, Pat Loud, 216.
63. Loud, Pat Loud, 218; emphasis in original.
64. Ruoff, An American Family, 123. For the particular modes and impulses behind women’s autobiographies, see Smith, Subjectivity, Identity, and the Body.
65. Betty Ford with Chris Chase, The Times of My Life (New York: Harper & Row, 1978), 187–189, 193.
66. It was known for instance, that Ford was prescribed muscle relaxants; see “Betty Ford Faces Surgery,” Chicago Tribune, September 28, 1974, p. N1.
67. John Robert Greene, Betty Ford: Candor and Courage in the White House (Lawrence: University Press of Kansas, 2004), 112–113; Betty Ford with Chris Chase, Betty: A Glad Awakening (Garden City, NY: Doubleday, 1987).
68. Greene, Betty Ford, 111.
69. Greene, Betty Ford, 113.
70. Yagoda cites Mary Jane Ward’s The Snake Pit (1946) and The Final Face of Eve (1958); Sylvia Plath’s The Bell Jar (published as Victoria Lucas, 1963); and Joanne Greenberg’s I Never Promised You a Rose Garden (published as Hannah Greene, 1964). Anne Sexton’s “confessional” poems of the same era were the exception rather than the rule.
71. Yagoda, Memoir, 215.
72. Yagoda, Memoir, 220.
73. Yagoda, Memoir, 282. The Diary of Anne Frank was first published in English in 1952, and Elie Wiesel’s Night was translated into English in 1960 (and was variously classified as a novel, memoir, nonfiction account, and “autobiographical novel”). Gary Weissman notes that the new attention paid to the Holocaust by the American public occurred circa 1978, the year Jimmy Carter established the President’s Commission on the Holocaust and a major miniseries was aired; he notes that the term “the Holocaust” became widely used in the United States in the 1960s largely through memoirs and anthologies. Fantasies of Witnessing: Postwar Efforts to Experience the Holocaust (Ithaca, NY: Cornell University Press, 2004), 8–9, 24.
74. Yagoda, Memoir, 226–227.
75. See Yagoda’s catalog of titles from 1989 to 1997. Memoir, 227–228. Peter D. Kramer observed in 1996 that across the twentieth century there was about “one book per decade” on melancholy or depression (“a bit more if chronicles of mania are included”), but that the 1990s had thus far produced a flood of such accounts. “Bookend: The Anatomy of Melancholy,” New York Times Book Review, April 7, 1996, p. 27.
76. William Styron, Darkness Visible: A Memoir of Madness (New York: Random House, 1990); Kramer, “Bookend: The Anatomy of Melancholy”; James Atlas, “The Age of The Literary Memoir Is Now,” New York Times Magazine (May 12, 1996): 25. Atlas cited approximately 200 memoirs published in the prior year.
77. Styron is quoted in Victoria Glendinning, “A Howling Tempest in the Brain,” New York Times Book Review, August 19, 1990, p. 1.
78. Mendelsohn, “But Enough about Me.”
79. Joshua Gamson, “Taking the Talk Show Challenge: Television, Emotion, and Public Spheres,” Constellations 6: 2 (December 2002): 190–205; quote on p. 195.
80. Yagoda, Memoir, 238–239.
81. One scholar argues that documentaries appeal to viewers through “the pleasure in knowing” that comes from the “closer indexical relation to the real” and “more intimate connection to the real world” they offer as compared to fiction. This scholar is Bill Nichols, as referenced in Barry Keith Grant and Jeannette Sloniowski, eds., Documenting the Documentary: Close Readings of Documentary Film and Video (Detroit: Wayne State University Press, 1998), 20.
82. Bennett Cerf as quoted in Yagoda, Memoir, 239.
83. Leigh Gilmore, The Limits of Autobiography: Trauma and Testimony (Ithaca, NY: Cornell University Press, 2000). She notes that this impulse has sometimes led to the mislabeling of fiction as memoir.
84. Atlas, “The Age of The Literary Memoir Is Now”; emphasis in original.
85. Atlas, “The Age of the Literary Memoir.”
86. This phrase was found in Amazon’s review of The Kiss; see discussion below.
87. Yagoda, Memoir, 228.
88. Kathryn Harrison, The Kiss (New York: Random House, 1997). Like many memoirists of the 1990s, Harrison got her start as a novelist, alluding to these same themes in her fiction, including Exposure (New York: Random House, 1993).
89. Review of The Kiss, Amazon.com: https://amazon.com/Kiss-Memoir-Kathryn-Harrison/dp/0812979710/ref=sr_1_1?s=books&ie=UTF8&qid=1502124018&sr=1-1&keywords=the+kiss+harrison.
90. Lisa Schwarzbaum, “Did Kathryn Harrison’s New Memoir Go too Far?” Entertainment Weekly (March 21, 1997). Schwarzbaum asked her question with regard to the living people the memoir implicated: Harrison’s father, spouse, and two young children.
91. Harrison, book notes, The Kiss, 227, 231, 233.
92. As Carol Sanger notes, this silence around abortion persisted even as strictures about other taboo topics—cancer, depression, divorce, homosexuality—loosened. About Abortion: Terminating Pregnancy in Twenty-First-Century America (Cambridge, MA: Belknap Press of Harvard University Press, 2017), xiii, 22. She notes that courts treat abortion, like mental illness, personal safety, homosexuality, transsexuality, and illegitimate or abandoned children in welfare cases, as a justification for anonymity, 46. She also notes some moves toward disclosure, such as a recent “abortion voices project” and #ShoutYourAbortion, 227.
93. E. L. Godkin, “The Census Questions,” Nation 50 (June 5, 1890): 445.
94. William Grimes, “We All Have A Life: Must We All Write about It?” New York Times, March 25, 2005, p. E27.
95. Mendelsohn, “But Enough about Me.” Some memoirists in fact compared the work of writing to the psychological process of therapy; see Birkerts, The Art of Time in Memoir, 115, 145–146, 155.
96. Atlas, “The Age of The Literary Memoir Is Now.” See also William Gass, “The Art of Self: Autobiography in an Age of Narcissism,” Harper’s (May 2014).
97. Susanna Kaysen, Girl, Interrupted (New York: Turtle Bay Books, 1993). See Andrea Sachs, “Books: The Unconfessional Confessionalist,” Time (July 11, 1994): 60. The memoir was the basis for a 1999 film.
98. Review of The Camera My Mother Gave Me in Publishers’ Weekly; www.publishersweekly.com/978-0-679-44390-2.
99. Kaysen, Girl, Interrupted, 94.
100. Yagoda, Memoir, 228.
101. Similarly, Kathryn Harrison’s novel Exposure raised many of the issues of her later memoir about incest. In it, the father is a photographer and Harrison inserts in the text excerpts from newspaper articles, letters, museum catalogs, court proceedings, and so on: “as if Ann [the protagonist] can characterize herself only as a series of documents in her father’s never-ending documentary,” David Shields writes. Enough about You: Adventures in Autobiography (New York: Simon & Schuster, 2002), 126.
102. Timothy Garton Ash, The File: A Personal History (New York: Vintage Books, 1998), 12.
103. Kaysen, Girl, Interrupted, 147–149, 150–159.
104. Carl Kaysen, Charles C. Holt, Richard Holton, George Kozmetsky, H. Russell Morrison, and Richard Ruggles, “Report of the Task Force on the Storage of and Access to Government Statistics,” American Statistician 23 (June 1969): 11–19. See also Westin, Privacy and Freedom, 317.
105. Kaysen, Girl, Interrupted, 167.
106. This theme resonates in another memoir of depression from this period, Elizabeth Wurtzl’s Prozac Nation: Young and Depressed in America (Boston: Houghton Mifflin, 1994). For an interpretation of Wurtzl’s self-display and disclosure as a meditation on the dangers of invisibility, especially for the addict whose life depends on “being seen,” see Kathy Farquharson, “Escaping the Panopticon: Vision and Visibility in the Memoirs of Elizabeth Wurtzel,” in Compelling Confessions: The Politics of Personal Disclosure, ed. Suzanne Diamond (Madison, NJ: Fairleigh Dickinson University Press, 2011), 68–75; quote on p. 71.
107. Memoirs of depression and medication by Wurtzl in 1994’s Prozac Nation, and later by Lauren Slater in Prozac Diary (New York: Random House, 1998), also fueled this demand.
108. Sachs, “Books: The Unconfessional Confessionalist,” 60.
109. “Author Q & A: The Camera My Mother Gave Me by Susanna Kaysen,” Penguin Random House; www.penguinrandomhouse.com/books/90575/the-camera-my-mother-gave-me-by-susanna-kaysen/9780679763437/.
110. Cheryl Strayed in Why We Write about Ourselves: Twenty Memoirists on Why They Expose Themselves (and Others) in the Name of Literature, ed. Meredith Maran (New York: Plume, 2016), 210–211.
111. Ayelet Waldman in Why We Write about Ourselves, 228–229.
112. In an interview with the Austin Chronicle Kaysen stated, “But I tell you, this is the end of memoirs for me. There are too many of them. People think they’re real but they’re not. They’re just as full of self-deception and occlusion as a novel.” Marion Winik, “Susanna Kaysen Lays it on the Line,” Austin Chronicle, October 19, 2001; www.austinchronicle.com/books/2001-10-19/83325.
113. Peter Kramer uses “autopathography,” a modification of “pathography,” a term coined by Joyce Carol Oates. Atlas, “The Age of The Literary Memoir Is Now.” Others used “pathobiography.” See Cook, “Outing History,” 70. Cook criticizes the term as part of the high culture backlash against “the contradictions and textures that actually make humans so interesting.”
114. See www.publishersweekly.com/978-0-679-44390-2. The jury is out on the origins of the phrase, which the Oxford English Dictionary defines as “too much information (used to indicate that someone has revealed personal information of an embarrassing nature).” It was the title of a Duran Duran song of 1993 and also of a 1981 song of The Police. Others have suggested military or virtual community roots.
115. BookPage review, October 2001; brooklyn.bibliocommons.com/item/show/10580183062_the_camera_my_mother_gave_me.
116. Bonome v. Kaysen, 17 Mass. L. Rptr. 695 (Mass. Super. Ct. 2004).
117. Paul Schwartz and Karl-Nikolaus Peifer, “Prosser’s Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?” California Law Review 98 (2010): 1925–1988; quote on p. 1961.
118. Bonome v. Kaysen. For a precedent, see Haynes v. Alfred A. Knopf and Nicholas Lemann, 8 F.3d 1222 (7th Cir. 1993); the case concerned a man whose life appeared in a historical account of the Great Migration by author Nicholas Lemann, The Promised Land (New York: Vintage, 1992). Lemann used the man’s actual name and the court ruled this appropriate, since a pseudonym would not have hidden his identity and because changing details about him would have amounted to writing fiction.
119. Eugene Volokh, “ ‘You Are Also Ordered Not to Post Any Further Information about the [Plaintiff],’ ” Washington Post, August 24, 2015; see also Volokh, “Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking about You,” Stanford Law Review 52 (2000): 1049–1124. Websites now offer assistance to writers in navigating the legal issues of “telling their own story.” See www.rightsofwriters.com/2011/01/can-you-tell-your-own-true-story-even.html. See also Sonja R. West, “The Story of Me: The Underprotection of Autobiographical Speech,” Washington University Law Review 84 (2006): 905–967. She argues that “the time-honored practice of talking about yourself has been ignored by legal scholars,” with the consequence that “current free speech principles protect the autobiographies of the powerful but leave the stories of ‘ordinary’ people vulnerable to challenge,” 905. She compares Kaysen’s case to that of the blogger “Washingtonienne” (Jessica Cutler), who was sued for disclosing sexual escapades with men online.
120. Samantha Barbas, “The Death of the Public Disclosure Tort: A Historical Perspective,” Yale Journal of Law & the Humanities 22 (2010): 171–215.
121. Neil Richards, “The Puzzle of Brandeis, Privacy, and Speech,” Vanderbilt Law Review 63: 5 (2010): 1343.
122. Since the 1960s courts have nearly always found for the media in invasion of privacy suits. The public’s “legitimate interest” in the information has been treated as quite expansive, generally overriding privacy concerns. See Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Cambridge, MA: Harvard University Press, 2015); and Samantha Barbas, Newsworthy: The Supreme Court Battle over Privacy and Press Freedom (Stanford, CA: Stanford Law Books, 2017).
123. This is from the most recent edition of William Prosser and Page Keeton, Handbook of the Law of Torts, 5th ed. (1984), quoted in Lawrence, Privacy and the Past, 55. There were countercurrents, however. Celebrities gained new protections from the intrusive press after the passage of California’s pioneering 1999 paparazzi law, lobbied for by celebrities and the Screen Actors Guild, as well as victims’ rights groups. It created tort liability for “physical” and “constructive” invasions of privacy through photographing, videotaping, or recording a person engaging in a personal or family activity. Shay Sayre and Cynthia King, Entertainment and Society: Audiences, Trends, and Impact (New York: Routledge, 2003), 216.
124. Schwartz and Peifer, “Prosser’s Privacy and the German Right of Personality,” 1927.
125. As noted in Chapter 1, that vision of individual dignity has been much more at home in Europe in the form of a “right of personality.” See, for example, James Q. Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” Yale Law Journal 113 (2004): 1151–1221. Edward J. Bloustein defended the “inviolate personality” concept in “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser,” New York Law Review 39 (1964): 962–1007.
126. Rochelle Gurstein argues that casting privacy as an individual right “was ill-fated from the start” because it “made it virtually impossible to take account of the sweeping damages to taste and judgment or address the coarsening tone of public discussion, matters that were central to the debate about privacy.” The Repeal of Reticence: A History of America’s Cultural and Legal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art (New York: Hill and Wang, 1996), 148–149.
127. See the essays in The Seductions of Biography, ed. Mary Rhiel and David Suchoff (New York: Routledge, 1996), 118–172. In the same volume, Blanche Wiesen Cook writes of the “extraordinary resistance” she faced when narrating the intimate lives and relations of famous women, beginning in the 1970s. “Outing History,” 70. For a full treatment of the issues, see Susan C. Lawrence, Privacy and the Past: Research, Law, Archives, Ethics (New Brunswick, NJ: Rutgers University Press, 2016).
128. Literary theorist Barbara Johnson uses this phrase in The Seductions of Biography, 119.
129. Diane Wood Middlebrook, “Telling Secrets,” in The Seductions of Biography, 124. On confessional poetry see Deborah Nelson, “Beyond Privacy: Confessions between a Woman and Her Doctor,” Feminist Studies 25: 2 (Summer 1999): 279–306; and Hugh Stevens, “Confession, Autobiography and Resistance: Robert Lowell and the Politics of Privacy,” in American Cold War Culture, ed. Douglas Field (Edinburgh: Edinburgh University Press, 2005), 164–184.
130. Diane Wood Middlebrook, Anne Sexton: A Biography (Boston: Houghton Mifflin, 1991).
131. Middlebrook, “Telling Secrets,” 124, 126; Alessandra Stanley, “Poet Told All; Therapist Provides the Record,” New York Times, July 15, 1991, p. 1. Janna Malamud Smith on the other hand wrote of planning to destroy the papers of her famous father, Bernard Malamud. As she put it, “I was not eager to have my private father—the one I knew and carried with me—tampered with by someone else’s appraisal. In the aftermath of his death, as he made his way from real to remembered, I wanted him left alone. Not only did I feel myself vulnerable, but I felt he was.” Smith added, “I felt uneasy about the kind of biography anyone could receive in a publishing climate that often favored sensational books.” Prologue, Private Matters: In Defense of the Personal Life (Reading, MA: Addison-Wesley, 1997).
132. Diane Wood Middlebrook, Her Husband: Hughes and Plath—A Marriage (New York: Viking, 2003).
133. Hughes kept quiet, even though he knew, as he wrote to yet another biographer, that “my silence seems to confirm every accusation and fantasy. I preferred it, on the whole, to allowing myself to be dragged out into the bull-ring and teased and pricked and goaded into vomiting up every detail of my life with Sylvia for the higher entertainment of the hundred thousand Eng Lit Profs and graduates who—as you know—feel very little in this case beyond curiosity of quite a low order, the ordinary village kind, popular bloodsport kind.” Janet Malcolm, The Silent Woman: Sylvia Plath and Ted Hughes (New York: Alfred A. Knopf, 1994), 165, 140–141.
134. Malcolm, The Silent Woman, 8–9.
135. This was Edward Butscher’s Sylvia Plath, Method and Madness (New York: Seabury Press, 1976).
136. Malcolm, The Silent Woman, 164–165. Here she referred also to the willingness of acquaintances to talk.
137. William H. Honan, quoted in David Shields and Shane Salerno, Salinger (New York: Simon & Schuster, 2013), 511. Ian Hamilton, In Search of J. D. Salinger (New York: Random House, 1988); Joyce Maynard, At Home in the World: A Memoir (New York: Picador, 1998); Paul Alexander, Salinger, a Biography (Los Angeles: Renaissance Books, 1999); Margaret Ann Salinger, Dream Catcher: A Memoir (New York: Washington Square Press, 2000); Kenneth Slawenski, J. D. Salinger: A Life (New York: Random House, 2011); Shields and Salerno, Salinger. As a reviewer of the Slawenski book wrote, “J. D. Salinger spent the first third of his life trying to get noticed and the rest of it trying to disappear. He would have hated … [this] reverent new biography, which comes to us just a year after the writer’s death and creditably unearths and aggregates the facts and reads them into the fiction—reanimating the corpse without quite making it sing.” Jay McInerney, “Salinger’s Love and Squalor,” New York Times Book Review, February 10, 2011, p. A1.
138. Malcolm, The Silent Woman, 111.
139. Malcolm, The Silent Woman, 110. The case was Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).
140. Hamilton, In Search of J. D. Salinger.
141. Salinger “had to register all seventy-nine disputed letters at the Copyright Office, where any person willing to pay $10 can peruse them.” Phoebe Horan, quoted in Shields and Salerno, Salinger, 498.
142. Loren Glass, Authors Inc.: Literary Celebrity in the United States, 1880–1980 (New York: New York University Press, 2004), 199.
143. Maynard, At Home in the World, 199.
144. Margaret Salinger, Dream Catcher, 395.
145. Peggy Salinger’s book, for example, “of all the private documents that have lately found their way into print under the abused publishing category known as ‘memoir,’ ” was described as “so unequivocally removed from the realm of literature—so inward-looking, so ungenerous, so artless—that it achieves a perfect state of irrelevance, the nadir, if you will, of the autobiographical practice, revealing falsehood where it seeks to expose the ‘truth,’ and truth where it reveals the hollows of the secret-teller’s damaged little heart.” Benjamin Anastas, quoted in Shields and Salerno, Salinger, 536.
146. In Maynard’s account: “With my younger children heading off to college, and the challenge before me of footing the bills—I decided to sell J. D. Salinger’s letters to me, written over a quarter century ago.” As she explained, “I did not sell the letters as an act of vengeance, but neither did I feel compelled not to sell them, as some sort of act of exaggerated loyalty. I believed the letters were better entrusted to a person whose appreciation of Salinger found its origins in an understandable love of the writer’s prose, rather than one who made the costly mistake of trying to live out fictions best left on the page.” (Peter Norton, a software developer bought the letters and returned them to Salinger.) See Phoebe Hoban in Shields and Salerno, Salinger, 531.
147. Larissa Macfarquhar, “The Cult of Joyce Maynard,” New York Times Magazine (September 6, 1998): 32–35; quote on p. 34.
148. Macfarquhar, “The Cult of Joyce Maynard,” p. 34; Maynard, At Home in the World, xi. For a recent and similarly cutting profile of Maynard, see Caitlin Flanagan, “The Queen of Oversharing: The Personal Essay May be Over—but Joyce Maynard Isn’t,” The Atlantic (October 2017).
149. Maynard herself presents this as progress from her earlier literary career, during which she wrote entire books about herself that left out items that were too personal or shameful, such as her alcoholic father. At Home in the World, 163.
150. Influential memoirs by men followed as well, including Augustus Burroughs’s Running with Scissors (2003) and James Frey’s A Million Little Pieces (2003). Both of these became controversial for their alleged fictionalizing of autobiographical events. (Also note Binjamin Wilkomirski’s Fragments: Memories of a Wartime Childhood [1996], which was celebrated until it was discovered to be an entirely fictional Holocaust memoir.)
151. See Berlant, The Female Complaint; Lauren Berlant and Lisa Duggan, eds., Our Monica, Ourselves: The Clinton Affair and the National Interest (New York: New York University Press, 2001); and Paul Apostolidis and Juliet A. Williams, eds., Public Affairs: Politics in the Age of Sex Scandals (Durham, NC: Duke University Press, 2004).
152. Jonathan Yardley, “J. D. Salinger’s Holden Caulfield, Aging Gracelessly,” Washington Post, October 19, 2004, p. C01.
153. Jonathan Yardley, as quoted in Shields and Salerno, Salinger, 537.
154. Maynard characterized the attacks “not only on my book but on my character” as “brutal, intensely personal and relentless.” See afterword, At Home in the World. But she had anticipated the criticism, writing in her author’s note, “While I have no doubt that some will view my choice to tell this story honestly as an invasion of others’ privacy, I have tried hard to describe only those events and experiences that had a direct effect on the one story I believe I have a right to tell completely: my own.” At Home in the World, xi.
155. Both are quoted in Macfarquhar, “The Cult of Joyce Maynard,” p. 35.
156. Margaret Salinger, Dream Catcher, xi, 420.
157. Maynard, At Home in the World, 302.
158. Jean Miller, quoted in Shields and Salerno, Salinger, 524.
159. See Shari Benstock, ed., The Private Self: Theory and Practice of Women’s Autobiographical Writings (Chapel Hill: University of North Carolina Press, 1988); Peter Gilmour, The Wisdom of Memoir: Reading and Writing Life’s Sacred Texts (Winona, MN: St. Mary’s Press, 1997); Judith Barrington, Writing the Memoir: From Truth to Art (Portland, OR: Eighth Mountain, 1997); and Tristine Rainer, Your Life as Story: Writing the New Autobiography (New York: G. P. Putnam’s Sons, 1997). Albert E. Stone observed that “in this century, and particularly in the years since World War II, no other mode of American expression [autobiography] seems to have more widely or subtly reflected the diversities of American experience,” Autobiographical Occasions and Original Acts: Versions of American Identity from Henry Adams to Nate Shaw (Philadelphia: University of Pennsylvania Press, 1982), 1.
160. Similarly, author Joyce Carol Oates wrote of the controversy: “Though Joyce Maynard has been the object of much incensed, self-righteous criticism, primarily from admirers of the reclusive Salinger, her decision to sell his letters is her own business, like her decision to write about her own life. Why is one ‘life’ more sacrosanct than another?” Quoted in Shields and Salerno, Salinger, 530–531. Similar convictions underwrote critical theory about the confessional mode in this period. Literary theorist Deborah Nelson argues that “privacy rights rest on a foundation of visibility” and that “confession in fact underwrites privacy—especially for those with the most fragile claims on citizenship.” Pursuing Privacy, 26.
161. Maynard, afterword, At Home in the World.
162. Killen, 1973 Nervous Breakdown, 159.
163. Don DeLillo, Mao II (New York: Viking, 1991); see Glass, Authors Inc., 197.
164. Yardley, “J. D. Salinger’s Holden Caulfield.”
165. Yardley, “J. D. Salinger’s Holden Caulfield.”
166. Shields and Salerno, Salinger, xiv, xv, xvii.
167. Shields and Salerno, Salinger, xiii.
168. Shields and Salerno, Salinger, 569–570. They write that Salinger, drawing on his World War II experience, “never stopped living his life like a counterintelligence agent.”
169. Larry Gross, “What is Wrong with This Picture? Lesbian Women and Gay Men on Television,” in Queer Words, Queer Images: Communication and the Construction of Homosexuality, ed. R. Jeffrey Ringer (New York: New York University Press, 1994), 143. See also Bruce Robbins, ed., The Phantom Public Sphere (Minneapolis: University of Minnesota Press, 1993); Richard Schickel, Intimate Strangers: The Culture of Celebrity in America (Garden City, NY: Doubleday, 1985); and Bromwich, “How Publicity Makes People Real,” 145–172.
170. Joshua Gamson, Freaks Talk Back: Tabloid Talk Shows and Sexual Nonconformity (Chicago: University of Chicago Press, 1998), 4, 18. He pegs talk shows as “an absurd, hyper enactment of what Michel Foucault called the ‘incitement to discourse.’ ” See Gamson, “Taking the Talk Show Challenge,” 190–205.
171. For a trenchant analysis of American uses of narcissism in cultural criticism, see Lunbeck, The Americanization of Narcissism.
172. Deborah Nelson argues for the collapse of a dominant (elite and patriarchal) view of privacy starting in the late 1950s, which yoked together private property, bodily integrity, sovereignty over family members, and the proprietary interest in family name as one coherent interest. Pursuing Privacy in Cold War America, xiii. I would argue that this process began long before the 1950s, though it may have only become fully evident at mid-century.
173. One of the most acclaimed memoirists of recent times, Leslie Jamison, argued in 2014 for the outward-looking and empathetic face of confessional writing, in The Empathy Exams: Essays (Minneapolis: Graywolf Press, 2014).
174. See, for instance, Jill Hamburg Coplan, “Moved to Write Memoirs,” Newsday, March 13, 2004.
175. Yagoda, Memoir, 7. These figures come from Nielsen BookScan, which tracks 70 percent of book sales in the United States.
176. Yagoda, Memoir, 28.
177. See memoirsbyme.com, cited by Yahoda, Memoir, on p. 20. According to Yahoda, there has been approximately one scandal a year over “autobiographical fraud” during the last four decades. The most recent series began in 2006. This was the year that James Frey’s memoir, A Million Little Pieces (2003) was exposed as playing fast and loose with the “facts” of the author’s life. Intriguingly, Frey had tried unsuccessfully to sell his book as a novel. But it was immediately optioned when he reclassified it as a memoir, and it became a bestseller with help from Oprah Winfrey. For the contretemps over Frey, see Mary Karr, “His So-Called Life,” New York Times Book Review, January 15, 2006, p. D13; and Michiko Kakutani, “Bending the Truth in a Million Little Ways,” New York Times, January 17, 2006, p. E1. Regarding fraudulent memoirs, Yagoda notes, “in any society where a particular currency has high value and is fairly easily fashioned, counterfeiters will quickly and inevitably emerge,” 243.
178. Maran, ed., Why We Write about Ourselves, dedication page.
179. Birkerts, The Art of Time in Memoir, 3.
180. Mendelsohn, “But Enough about Me.”
181. Shields, Enough about You, 6.
182. Shields, Enough about You, 162; emphasis in original.
183. Birkerts, The Art of Time in Memoir, 7.
184. Birkerts, The Art of Time in Memoir, 9, 190.
185. See the essays by Leslie Jamison and Charles McGrath, “In the Age of Memoir, What’s the Legacy of the Confessional Mode?” New York Times Book Review, October 4, 2015, p. 31. Jamison, somewhat wearily, observed, “These days, American literary culture features both a glut of so-called ‘confessional’ work and an increasingly familiar knee-jerk backlash against it.”
186. danah boyd, It’s Complicated: The Social Lives of Networked Teens (New Haven, CT: Yale University Press, 2014), 6.
187. Deborah Lupton, The Quantified Self: A Sociology of Self-Tracking (Malden, MA: Polity, 2016), 61.
188. boyd, It’s Complicated, 62.
189. Janet Murray, Hamlet on the Holodeck: The Future of Narrative in Cyberspace (New York: Simon & Schuster, 1997), 252.
190. Dave Sifry, “State of the Blogosphere, February 2006,” Technorati.com; http://technorati.com/weblog/2006/02/81.html.
191. “Buzz in the Blogosphere: Millions More Bloggers and Blog Readers,” Nielsen Online, March 8, 2012; www.nielsen.com/us/en/insights/news/2012/buzz-in-the-blogosphere-millions-more-bloggers-and-blog-readers.html.
192. West, “The Story of Me,” 910. At that writing, there were 50 million web logs in existence. West notes that two-thirds of bloggers “almost never” ask permission before writing about another person by name, according to a survey coming out of the Massachusetts Institute of Technology. Predictably, the survey found that “bloggers are starting to come up against a range of privacy-related issues varying from minor embarrassments with family and friends to termination of their employment,” 911. Emily Nussbaum, “My So-Called Blog,” New York Times Magazine (January 11, 2004): 33–34. Nussbaum theorized that this new desire to talk publicly about personal experiences, particularly among the young, “has multiple roots, from Ricki Lake to the memoir boom to the AA confessional, not to mention thirteen seasons of ‘The Real World.’ ” These modern speakers learned that revealing personal experiences had its rewards and that “exposure may be painful at times, but it’s all part of the process of ‘putting it out there,’ risking judgment and letting people in.” In return, the payoff for this openness is “a new kind of intimacy, a sense that they are known and listened to. This is their life, for anyone to read.”
193. Emily Nussbaum, “Say Everything,” New York Magazine (February 12, 2007). This was partly a caricature. As Nussbaum acknowledged, given that “your life is being lived in public whether you choose to acknowledge it or not … it may be time to consider the possibility that young people who behave as if privacy doesn’t exist are actually the sane people, not the insane ones.”
194. William Haefeli, New Yorker (October 11, 2010).
195. Nussbaum, “Say Everything.”
196. Mary Madden et al., “Teens, Social Media, and Privacy,” Pew Internet and American Life Project, May 31, 2013; www.pewinternet.org/Reports/2013/Teens-Social-Media-And-Privacy.aspx; danah boyd and Alice Marwick, “Social Privacy in Networked Publics: Teens’ Attitudes, Practices, and Strategies,” A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, September 2011. For a detailed investigation, see boyd, It’s Complicated, especially ch. 2. Based on her ethnographic research, boyd argues that “instead of signaling the end of privacy as we know it, teens’ engagement with social media highlights the complex interplay between privacy and publicity in the networked world we all live in now,” 57. She also amply documents teens’ frustration “with adult assumptions that suggest that they are part of a generation that has eschewed privacy in order to participate in social media,” 54–55. See also Christopher Jay Hoofnagle et al., “How Different Are Young Adults from Older Adults When It Comes to Information Privacy Attitudes and Policies?” SSRN 1589864, 2010; papers.ssrn.com.
197. See Jason Reid, Get out of My Room! A History of Teen Bedrooms (Chicago: University of Chicago Press, 2017).
198. boyd, It’s Complicated, 60.
199. John Gilliom and Torin Monahan, SuperVision: An Introduction to the Surveillance Society (Chicago: University of Chicago Press, 2013), 43.
200. See boyd, It’s Complicated, 75–76. “Achieving privacy in networked publics,” as she notes, has led to a host of creative tactics: switching platforms and working around technical affordances but also encoding messages, or what she calls social steganography (e.g. “subtweeting”), which recognizes that “limiting access to meaning can be a much more powerful tool for achieving privacy than trying to limit access to the content itself,” 69.
201. Gilliom and Monahan, SuperVision, 52.
202. Gilliom and Monahan, SuperVision, 51; emphasis in original.
203. Julia Angwin, Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance (New York: Times Books, 2014), 154.
204. Julian Dibbell, “My Modem, Myself,” Village Voice Literary Supplement (October–November 2000).
205. On this general theme, see James Livingston, The World Turned Inside Out: American Thought and Culture at the End of the Twentieth Century (Lanham, MD: Rowman & Littlefield, 2010).
206. Mendelsohn, “But Enough about Me.”
207. Two film scholars called An American Family significant for its creation of a new genre “that finds its ultimate expression in an age of cable television when factual and fictional modes have blurred and merged.” Jason Landrum and Deborah Carmichael, “Jeffery Ruoff’s An American Family: A Televised Life—Reviewing the Roots of Reality Television,” Film & History: An Interdisciplinary Journal of Film and Television Studies 32: 1 (2002): 66–70; quote on p. 67. The form of the series was also returned to regularly. The series was spoofed in a Saturday Night Live skit in 1978, and actor-director Albert Brooks took the series as inspiration for his film Real Life in 1979. See the reflections of the writer for the Brooks film in Harry Shearer, “An American Family: A Televised Life,” Wilson Quarterly (Summer 2002): 118–119.
208. Shearer, “An American Family.”
209. The show is now called Real World. There were also by the early 2000s, some pronouncements of the death of the genre. “Reality TV Cools its Jets,” USA Today, March 29, 2002. Noted two scholars, “within a two-year period, twenty-five shows dedicated to the lives of ordinary people vanished from the airwaves, leaving CBS’s Survivor and MTV’s The Real World as the only consistent ratings-draw.” The glut made clear that two styles were emerging: game shows and serialized shows with developed, real-life characters. Landrum and Carmichael, “Jeffery Ruoff’s An American Family,” 66.
210. More than 6,100 people applied to be on Survivor, a competitor. Sales of webcams were pegged at one-third of a million in 1997 and 2.5 million by 2000. See James Poniewozik, “We Like to Watch,” Time (June 26, 2000): 56–61; quote on p. 60; Jon Dovey, Freakshow: First Person Media and Factual Television (London: Pluto Press, 2000).
211. An American Family Revisited: The Louds 10 Years Later, dir. Alan Raymond and Susan Raymond (Home Box Office, 1983); the film would air on PBS in 1991.
212. This was reportedly aggravated by drug addiction.
213. Elizabeth Jensen, “Lance Loud’s Last Testament,” Los Angeles Times, January 6, 2003.
214. Pat Loud released a book about her son with the help of a collaborator in 2012. Full of photographs, scrawled notes, and postcards written by Lance, as well as testimonials from friends, it can be seen as another attempt to preserve a particular version of Lance for the public eye. Pat Loud, Lance out Loud, ed. Christopher Makos (New York: Glitterati, 2012).
215. A two-hour anniversary edition of the original series was, however, released on DVD in 2011 by Alan and Susan Raymond.
216. Jensen, “Lance Loud’s Last Testament.” Pat Loud in a 2013 profile confirmed that she was again living with her ex-husband. Philip Galanes, “The Mother of All ‘Housewives,’ ” New York Times, June 16, 2013, p. ST1.
217. Jensen, “Lance Loud’s Last Testament.”
218. The Times piece went on: “ ‘Because of the series, some of the more militant gays wanted Lance as their spokesman,’ said Kristian Hoffman, a friend since childhood. ‘That wasn’t his objective,” Mr. Hoffman said. ‘Lance used to tell them that being gay was only one finger out of 10, not a be-all and end-all.’ ” Thomas J. Lueck, “Lance Loud, 50, Part of Family Documentary,” New York Times, December 29, 2001, p. D7.
219. Jensen, “Lance Loud’s Last Testament.”
220. Laurie Winer, “Reality Replay,” New Yorker (April 25, 2011). The piece was triggered by the production of a new docudrama by HBO, “Cinema Verité,” about the making of An American Family. Controversy persisted: Gilbert protested HBO’s “fallacious” script and hired a lawyer to represent his and the Louds’ interests. (The Louds accepted a financial settlement in exchange for not discussing the script publicly.)
221. Winer, “Reality Replay.”
222. “Greetings from the Fishbowl,” New York Times Magazine (April 4, 1999): 18.
223. See, for example, the essays in Jamison, The Empathy Exams.
224. Glen Bowersock, “GWM Seeks Classical Greece, Sex, Jewish Roots, Paternity” (Review of Daniel Mendelsohn’s The Elusive Embrace: Desire and the Riddle of Identity), New York Observer, June 14, 1999.
225. Felix Stalder, “Opinion: Privacy Is Not the Antidote to Surveillance,” Surveillance & Society 1: 1 (2002): 120.
1. Emily Dreyfuss, “Privacy Isn’t Dead. It’s More Popular than Ever,” Wired (July 27, 2017). This writer’s assessment was drawn from the expanding popularity of an encrypted messaging app, WhatsApp, and the declining popularity of an unsecured one, Twitter. “Twitter is public. WhatsApp is private. Twitter has a huge problem with safety, while WhatsApp has made privacy and security the center of its mission. And it’s now more clear than ever that people have made their choice.”
2. Paul M. Schwartz and Daniel J. Solove, “The PII Problem: Privacy and a New Concept of Personally Identifiable Information,” NYU Law Review 86: 6 (December 2011): 1814–1894.
3. See for example David Brin, The Transparent Society: Will Technology Force Us to Choose between Privacy and Freedom? (Reading, MA: Addison-Wesley, 1998), which projected a society of mutual surveillance, and Adam Tanner, What Stays in Vegas: The World of Personal Data—The Lifeblood of Big Business—and the End of Privacy as We Know It (New York: PublicAffairs, 2014).
4. The CEO of Sun Microsystems, Scott McNealy, stated, “You have zero privacy anyway. Get over it”; Polly Sprenger, “Sun on Privacy: Get over It,” Wired (January 26, 1999). See also columnist Thomas Friedman, “Four Words Going Bye-Bye,” New York Times, May 21, 2014, p. A29; and Martin Enserink and Gilbert Chin, special section on “The End of Privacy,” Science 347: 6221 (January 30, 2015). These last writers declare, “Privacy as we have known it is ending, and we’re only beginning to fathom the consequences,” 491.
5. Anupam Chander, “Youthful Indiscretion in an Internet Age,” in The Offensive Internet: Speech, Privacy, and Reputation, ed. Saul Levmore and Martha C. Nussbaum (Cambridge, MA: Harvard University Press, 2010), 124–125.
6. Anita L. Allen, Unpopular Privacy: What Must We Hide? (New York: Oxford University Press, 2011), xv; Chris Jay Hoofnagle et al., “Behavioral Advertising: The Offer You Cannot Refuse,” Harvard Law and Policy Review 6 (2012): 273–296. See also Joseph Turow, The Daily You: How the New Advertising Industry Is Defining Your Identity and Your Worth (New Haven, CT: Yale University Press, 2011).
7. Konstantin Kakaes, “Drones Can Photograph Almost Anything. But Should They?” Columbia Journalism Review (April 21, 2016).
8. Most infamously, Facebook founder Mark Zuckerberg claimed in 2010 that “the age of privacy is over” and that privacy was no longer a “social norm.” Bobbie Johnson, “Privacy No Longer a Social Norm, Says Facebook Founder,” The Guardian, January 10, 2010; Marshall Kirkpatrick, “Facebook’s Zuckerberg Says the Age of Privacy Is Over,” New York Times, January 10, 2010. See also Dan Fletcher, “How Facebook Is Redefining Privacy,” Time (May 20, 2010); Jenna Wortham, “Facebook and Privacy Clash Again,” New York Times, May 6, 2010, p. B1; Stephanie Clifford, “Tracked for Ads? Many Americans Say No Thanks,” New York Times, September 30, 2009, p. B3.
9. Joseph Turow, The Aisles Have Eyes: How Retailers Track Your Shopping, Strip Your Privacy, and Define Your Power (New Haven, CT: Yale University Press, 2017), 12–13. He cites a 2015 study indicating that Americans give up personal information in exchange for discounts or other benefits primarily because “they are resigned to the inevitability of surveillance and the power of marketers to harvest their data,” 254.
10. Julie E. Cohen, “The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy,” Philosophy & Technology (2017): 1–21. Shoshona Zuboff describes this as “surveillance capitalism,” a system marked by “illegible mechanisms of extraction, commodification, and control that effectively exile persons from their own behavior while producing new markets of behavioral prediction and modification.” “Big Other: Surveillance Capitalism and the Prospects of an Information Civilization,” Journal of Information Technology 30: 1 (March 2015): 75–89.
11. Mary Madden et al., “Public Perceptions of Privacy and Security in the Post-Snowden Era,” Pew Research Center, November 12, 2014; www.pewinternet.org/2014/11/12/public-privacy-perceptions/.
12. Omar Tene and Jules Polonetsky, “A Theory of Creepy: Technology, Privacy, and Shifting Social Norms,” Yale Journal of Law & Technology 16: 1 (2014): 59–134; quote on p. 61. See also Ryan Tate, “Creepy Side of Search Emerges on Facebook,” Wired (February 15, 2013). This unease also greeted what Mark Andrejevic has termed “lateral surveillance” or peer monitoring, wherein individuals act like law enforcement agents or marketers in attempting to gather information on social interactions. “The Work of Watching One Another: Lateral Surveillance, Risk, and Governance,” Surveillance & Society 2: 4 (2005): 479–497.
13. This is what Erving Goffman called “civil inattention” in Behavior in Public Places (New York: Free Press of Glencoe, 1963).
14. Dave Eggers, The Circle (New York: Knopf, 2013), 303, 485. See also the near-futuristic imaginings of a fully transparent world in Gary Shteyngart’s Super Sad True Love Story: A Novel (New York: Random House, 2010).
15. “CIA’s ‘Facebook’ Program Dramatically Cut Agency Costs,” The Onion; www.theonion.com/video/cias-facebook-program-dramatically-cut-agencys-cos-19753.
16. Meg Leta Jones, Ctrl + Z: The Right to Be Forgotten (New York: New York University Press, 2016), 23.
17. Gary T. Marx, Windows into the Soul: Surveillance and Society in an Age of High Technology (Chicago: University of Chicago Press, 2016), 29, 47–48. He writes, “The new technologies probe more deeply, widely, and softly than traditional methods, transcend the barriers—both natural (distance, darkness, skin, time, microscopic size) and constructed (walls, sealed envelopes, incompatible formats)—that historically protected personal information.”
18. Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily,” The Guardian, June 6, 2013; Barton Gellman and Laura Poitras, “U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program,” Washington Post, June 7, 2013; Jennifer Granick and Christopher Sprigman, “The Criminal NSA,” New York Times, June 27, 2013. For a concise summary, see Raymond Wacks, Privacy: A Very Short Introduction, 2nd ed. (Oxford: Oxford University Press, 2015), 5–9. See also Ronald Goldfarb, ed., After Snowden: Privacy, Secrecy, and Security in the Information Age (New York: Thomas Dunne Books, 2015).
19. Bernard E. Harcourt, Exposed: Desire and Disobedience in the Digital Age (Cambridge, MA: Harvard University Press, 2015), 77.
20. James Vlahos, “Surveillance Society: New High-Tech Cameras Are Watching You,” Popular Mechanics (October 1, 2009): 64–69. See also Aaron Doyle, Randy K. Lippert, and David Lyon, eds., Eyes Everywhere: The Global Growth of Camera Surveillance (New York: Routledge, 2012).
21. Ari Melber, “About Facebook: As the Old Concept of Privacy Fades and a New One Arises Online, What Is Being Lost?” The Nation (December 20, 2007): 20–24; Siva Vaidhyanathan, The Googlization of Everything (and Why We Should Worry) (Berkeley: University of California Press, 2011). The 800 million figure is from John Gilliom and Torin Monahan, SuperVision: An Introduction to the Surveillance Society (Chicago: University of Chicago Press, 2013), 49.
22. For figures on identity theft, see Wacks, Privacy, 24. Also see Steven Levy and Brad Stone, “The Scary New World of Identity Theft,” Newsweek (July 4, 2005): 41.
23. The Privacy Rights Clearinghouse maintains a chronology of data breaches: see www.privacyrights.org/data-breach. At this writing, the most recent major breach was at Equifax in May 2017, affecting some 143 million Americans. Sarah Igo, “The Equifax Breach Has Potentially Catastrophic Consequences, But We Can’t Let It Obscure the Bigger Problem,” Washington Post, September 26, 2017.
24. Gilliom and Monahan, SuperVision, 43.
25. David Lyon has argued that consumer surveillance easily outstrips the surveillance capacities of most modern nation states. “Surveillance Technology and Surveillance Society,” in Modernity and Technology, ed. Thomas J. Misa, Philip Brey, and Andrew Feenberg (Cambridge, MA: MIT Press, 2003), 172.
26. Daniel J. Solove, The Digital Person: Technology and Privacy in the Information Age (New York, 2004).
27. Natasha Singer, “When No One Is Just a Face in the Crowd,” New York Times, February 2, 2014, p. BU3. Plans for the iPhone 8 in 2017 included facial recognition technology “to see its owner in just a few hundred milliseconds.” Andrew Griffin, “iPhone 8: Facial Recognition Unlocking the Main Feature of New, Premium Apple Phone, Report Claims,” UK Independent, August 22, 2017.
28. Wacks, Privacy, 9.
29. Marx, Windows into the Soul, 116, 48.
30. Viktor Mayer-Schönberger and Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think (Boston: Houghton Mifflin Harcourt, 2013); Erez Aiden and Jean-Baptiste Michel, Uncharted: Big Data as a Lens on Human Culture (New York: Riverhead Books, 2013); Rob Kitchin, The Data Revolution: Big Data, Open Data, Data Infrastructures and Their Consequences (Los Angeles: Sage, 2014); Christian Rudder, Dataclysm: Who We Are When We Think No One’s Looking (New York: Crown, 2014); Alex Pentland, Social Physics: How Good Ideas Spread—The Lessons from a New Science (New York: Penguin Press, 2014).
31. For example, Steve Lohr, Data-ism: The Revolution Transforming Decision Making, Consumer Behavior, and Almost Everything Else (New York: HarperCollins, 2015).
32. For example, Bruce Schneier, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World (New York: W. W. Norton, 2015).
33. Caroline Perry, “You’re Not So Anonymous,” Harvard Gazette, October 18, 2011.
34. Legal scholar Anita L. Allen, for example, describes privacy as “a condition of inaccessibility of the person, his or her mental states, or information about the person to the senses or surveillance devices of others.” Allen, Uneasy Access: Privacy for Women in a Free Society (Totowa, NJ: Rowman & Littlefield, 1988), 15.
35. See Randolph Lewis, Under Surveillance: Being Watched in Modern America (Austin: University of Texas Press, 2017).
36. Julia Angwin, “The Web’s New Gold Mine: Your Secrets,” Wall Street Journal, July 30, 2010. As Joseph Turow documents, traditional physical retail outfits have similar ambitions, certain that they must “trace, quantify, profile and discriminate among shoppers as never before” if they are to survive in a digital environment, with personalization and smartphones the tools. The Aisles Have Eyes, 3.
37. Charles Duhigg, “How Companies Learn Your Secrets,” New York Times Magazine (February 16, 2012); Kashmir Hill, “How Target Figured out a Teen Girl Was Pregnant before Her Father Did,” Forbes Magazine (February 16, 2012); Gus Lubin, “The Incredible Story of How Target Exposed a Teen Girl’s Pregnancy,” Business Insider, February 16, 2012. Those in the predictive analytics industry described the story as inaccurate and sensationalized, lamenting its “viral outbreak.” See www.kdnuggets.com/2014/05/target-predict-teen-pregnancy-inside-story.html. Target itself recognized the “creepiness factor” as Tene and Polonetsky point out in “A Theory of Creepy,” 67.
38. Pricewaterhouse Coopers, “The Wearable Future,” cited in Turow, The Aisles Have Eyes, 223.
39. Turow, The Aisles Have Eyes, 224.
40. Gilliom and Monahan, SuperVision, 12, 17, 19.
41. Marx, Windows into the Soul, 117.
42. Gilliom and Monahan, SuperVision, 108–109.
43. Turow, The Aisles Have Eyes.
44. Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (New York: Penguin Press, 2011).
45. Raymond Wacks notes the disintegrating “divide between the state and business” as an important feature of the present privacy landscape in Privacy, 15.
46. See, for example, David Rosen, “Four Ways Your Privacy Is Being Invaded,” Salon.com, September 11, 2012; Dave Gilson, Alex Park, and AJ Vicens, “How We Got from 9/11 to Massive NSA Spying on Americans: A Timeline,” Mother Jones (September 11, 2013).
47. Chris Jay Hoofnagle, “Big Brother’s Little Helpers: How ChoicePoint and Other Commercial Data Brokers Collect and Package Your Data for Law Enforcement,” North Carolina Journal of International Law and Commercial Regulation 29 (2003): 595–637.
48. David Lyon, ed., Surveillance as Social Sorting: Privacy, Risk, and Digital Discrimination (London: Routledge 2003); Oscar H. Gandy Jr., The Panoptic Sort: A Political Economy of Personal Information (Boulder, CO: Westview Press, 1993).
49. Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Cambridge, MA: Harvard University Press, 2015), 1, 9.
50. David C. Gray and Danielle Keats Citron, “The Right to Quantitative Privacy,” Minnesota Law Review 98 (2013): 62–144. Frank Pasquale, “Reputation Regulation: Disclosure and the Challenge of Clandestinely Commensurating Computing,” in The Offensive Internet: Speech, Privacy, and Reputation, ed. Saul Levmore and Martha C. Nussbaum (Cambridge, MA: Harvard University Press, 2010), 107–123. Jaron Lanier, You Are Not a Gadget: A Manifesto (New York: Alfred A. Knopf, 2010).
51. This was Andreas Weigend, a physicist turned e-commerce expert. He termed data the “most important raw material of the twenty-first century.” Data for the People: How to Make Our Post-Privacy Economy Work for You (New York: Basic Books, 2017), 13, 177.
52. The movement announced itself in 2007. See http://quantifiedself.com; Gary Wolf, “Know Thyself: Tracking Every Facet of Life, From Sleep to Mood, to Pain, 24/7/365,” Wired (June 22, 2009); and Gary Wolf, “The Data-Driven Life,” New York Times Magazine (May 2, 2010): 38–45.
53. Natasha Dow Schüll, “Data for Life: Wearable Technology and the Design of Self-Care,” BioSocieties (2016): 317–333; quote on p. 320. She notes that the online marketplace Amazon has launched a specialty shop for “Wearable Technology” featuring approximately 800 products and that the Fitbit tracker alone had generated profits of almost $2 billion annually by 2015.
54. Deborah Lupton, The Quantified Self: A Sociology of Self-Tracking (Malden, MA: Polity, 2016); Rebecca Lemov, “On Not Being There: The Data-Driven Body at Work and at Play,” Hedgehog Review 17: 2 (Summer 2015).
55. Lupton, The Quantified Self, 4–5.
56. Kate Crawford, “When Fitbit Is the Expert Witness,” The Atlantic (November 19, 2014). As the subhead summarizes, “An upcoming court case will use fitness-tracking data to try and prove a plaintiff’s claim, bringing us one step closer to the new age of quantified self incrimination.”
57. Lupton The Quantified Self, 20.
58. Julie E. Cohen, “The Surveillance-Innovation Complex: The Irony of the Participatory Turn,” in The Participatory Condition in the Digital Age, ed. Darin Barney, Gabriella Coleman, Christine Ross, Jonathan Sterne, and Tamar Tembeck (Minneapolis: University of Minnesota Press, 2016), 207–226.
59. Lupton, The Quantified Self, 61.
60. Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard University Press, 2001), 3–4. Although there has been steady U.S. opposition to a universal ID, for example the Real ID Act of 2005, many observers have pointed out that the capacity already exists in the form of data aggregators that merge data sets and sell individuals’ profiles to others; see Gilliom and Monahan, SuperVision, 29, 40–43.
61. Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven, CT: Yale University Press, 2008).
62. Charles Duhigg, “What Does Your Credit-Card Company Know about You?” New York Times Magazine (May 17, 2009): A40–45.
63. David Lyon and Zygmunt Bauman, Liquid Surveillance: A Conversation (Oxford: Wiley Blackwell, 2013).
64. Christopher Slobogin, “Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine,” Georgetown Law Journal 102 (2014): 1721–1776. See also Barry Friedman, Unwarranted: Policing Without Permission (New York: Farrar, Straus and Giroux, 2017).
65. The journal Surveillance & Society debuted in 2002, run by the UK-based Surveillance Studies Network. For key works see Sean P. Hier and Josh Greenberg, eds., The Surveillance Studies Reader (New York: McGraw-Hill, 2007); David Lyon, Surveillance Studies: An Overview (Cambridge: Polity Press, 2007); Kirstie Ball, Kevin D. Haggerty, and David Lyon, eds., Routledge Handbook of Surveillance Studies (New York: Routledge, 2012); Gilliom and Monahan, SuperVision; and Marx, Windows Into the Soul.
66. Kevin D. Haggerty and Richard V. Ericson, “The Surveillant Assemblage,” British Journal of Sociology 51: 4 (2000): 605–622. See Dan Bouk, “The History and Political Economy of Personal Data over the Last Two Centuries in Three Acts,” Osiris 32: 1 (2017): 85–106.
67. Harcourt, Exposed, 103.
68. Harcourt, Exposed, 215.
69. Julie E. Cohen, Configuring the Networked Self: Law, Code and the Play of Everyday Practice (New Haven, CT: Yale University Press, 2012).
70. Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in the Digital Age (2009). Jeffrey Rosen, “The Web Means the End of Forgetting,” New York Times Magazine (July 21, 2010): 30–37, 44–45; Jeffrey Rosen, “The Right to Be Forgotten,” Stanford Law Review Online 64 (2012). Calls for a right to forget or delete (or even “reinvent”) have, however, been countered by those who argue that this might amount to censorship, the violation of free expression, or even rewriting history.
71. Jones, Ctrl + Z, 2. As Jones recounts, Article 17 of the European Union Data Protection Directive of 2012 addressed “the right to be forgotten and to erasure,” a novel legislative right that could force deletion of personal data held by data controllers, 10. The relevant ruling European case is the 2010 suit by a man against a Spanish newspaper (and then Google) that publicized his insolvency proceedings; in the 2014 case, Google v. AEPD, Google was ordered by the Court of Justice of the European Union to edit the results retrieved when his name was searched. Jones offers an analysis of the gulf between U.S. and European law on this point in “A Right to a Human in the Loop: Political Constructions of Computer Automation and Personhood from Data Banks to Algorithms,” Social Studies of Science 47: 2 (2017): 216–239. See also Megan Garber, “How Google’s Autocomplete Was … Created/Invented/Born,” Atlantic Monthly (August 23, 2013).
72. See Daniel Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (New Haven, CT: Yale University Press, 2007); and Danielle Keats Citron and Mary Anne Franks, “Criminalizing Revenge Porn,” Wake Forest Law Review 49 (2014): 345–391.
73. Jones, Ctrl + Z, 3.
74. A noted example was wrestler Hulk Hogan’s 2016 suit against the gossip website Gawker for publishing a sex tape without his consent in Bollea v. Gawker; the successful suit wound up bankrupting Gawker.
75. Gilliom and Monagan, SuperVision, 49.
76. Marx, Windows into the Soul, xv.
77. The show was a creation of Dutch television in 1997.
78. Julie Anne Taddeo and Ken Dvorak, introduction, The Tube Has Spoken: Reality TV & History, ed. Julie Anne Taddeo and Ken Dvorak (Lexington: University Press of Kentucky, 2010), 5. In the same volume, see Lee Barron, “From Social Experiment to Postmodern Joke: Big Brother and the Progressive Construction of Celebrity,” 27–46.
79. Jones, “A Right to a Human in the Loop,” 229.
80. Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Cambridge, MA: Belknap Press of Harvard University Press, 2017), 55.
81. On the overall expansion of laws and policies that limit and regulate collections of personal information, see Colin J. Bennett and Charles D. Raab, The Governance of Privacy: Policy Instruments in Global Perspective (Burlington, VT: Ashgate Publishing, 2006).
82. Pasquale, The Black Box Society, 143; he asks, “What better way to mark oneself out as a ‘someone to watch’ than to bargain with a boss for an unmonitored work computer?” See Daniel J. Solove, “Introduction: Privacy Self-Management and the Consent Dilemma,” Harvard Law Review 126 (2013): 1880–1903.
83. Gilliom and Monahan, SuperVision, 6.
84. Gilliom and Monahan, SuperVision, 128; they earlier argue that the very term “privacy” is “out-of-date” and “not well suited to helping us make sense of” contemporary conditions, 7, 25.
85. Weigend, Data for the People, 47, 19, 41; emphasis in original. He continues, “Building up the idea of privacy and dismantling it all happened in the span of just a couple centuries—a blip in human history,” 47.
86. Electronic Frontier Foundation: https://ssd.eff.org/en; Pasquale, Black Box Society, 53.
87. J. J. Luna, How To Be Invisible: Protect Your Home, Your Children, Your Assets, Your Life (New York: Thomas Dunne Books, 2012).
88. Haggerty and Ericson, “The Surveillant Assemblage,” 619.
89. Pasquale notes, however, that “the ability to hide … is so comprehensively commodified” that only the wealthy can truly benefit from it. The Black Box Society, 56. There is also software designed to this end, such as AdNauseam and TrackMeNot, which create digital noise, ghost queries, and false information trails.
90. One example is the iSee app; Harcourt, Exposed, 275.
91. Surveillance Camera Players, We Know You Are Watching (New York: Factory School, 2006).
92. Finn Brunton and Martha Nissenbaum, Obfuscation: A User’s Guide for Privacy and Protest (Cambridge, MA: MIT Press, 2016).
93. Fred Stutzman and Woodrow Hartzog, “Obscurity by Design: An Approach to Building Privacy into Social Media,” CCSW’12 (February 2012, Seattle, Washington); Woodrow Hartzog and Evan Selinger, “Obscurity: A Better Way to Think about Your Data than ‘Privacy,’ ” Atlantic Monthly (January 17, 2013).
94. Mary Graham, Presidents’ Secrets: The Use and Abuse of Hidden Power (New Haven, CT: Yale University Press, 2017), 199. This became a hotly contested political issue when the FBI sought a court order in 2016 to force Apple to develop software to defeat the password protection on a phone used by an alleged terrorist. Eric Lichtblau and Katie Benner, “As Apple Resists, Encryption Fray Erupts in Battle,” New York Times, February 18, 2016, p. A1.
95. Weigend, Data for the People, 166–171.
96. This idea has been floated by Latanya Sweeney, computer scientist at Harvard, and her collaborators. See Perry, “You’re Not So Anonymous.”
97. On micro-payments, see Jaron Lanier, Who Owns the Future? (New York: Simon and Schuster, 2013).
98. John B. Thompson, “The New Visibility,” Theory, Culture and Society 22 (2005): 31–51; quote on p. 38. Thompson has noted that information in the present media environment is not just more extensive and intensive. It is also “less controllable in the sense that … it is much more difficult for political actors to throw a veil of secrecy around their activities, much harder to control the images and information that appear in the public domain, and much harder to predict the consequences of such appearances and disclosures,” 48–49; emphasis in original.
99. Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Belknap Press of Harvard University Press, 2015), 239–240, 243. He cites GovTrack.us as a model of “legislative transparency” that has been borrowed by other nations.
100. Megan Garber, “Doxing: An Etymology,” Atlantic Monthly (March 6, 2014).
101. Marx, Windows into the Soul, 141. One response has been to “close” and regulate the Internet, leading to a new battle over net neutrality.
102. David Leigh and Luke Harding, WikiLeaks: Inside Julian Assange’s War on Secrecy (London: Guardian Books, 2011).
103. Harcourt, Exposed, 267.
104. Graham, Presidents’ Secrets, 188.
105. Steve Mann, Jason Nolan, and Barry Wellman, “Sousveillance: Inventing and Using Wearable Computing Devices for Data Collection in Surveillance Environments,” Surveillance and Society 1: 3 (2003): 331–355. Gary Marx describes sousveillance as “watchful vigilance from below,” possible in a society defined by dense social interactions, material resources, and civil liberties. Windows into the Soul, 22.
106. See I-Witness Video; http://iwitnessvideo.info/. Dean Jonathon Wilson and Tanya Serisier, “Video Activism and the Ambiguities of Counter-Surveillance,” Surveillance and Society 8: 2 (2010): 166–180; and Bijan Stephen, “Get up, Stand up: Social Media Helps Black Lives Matter Fight the Power,” Wired (November 2015).
107. Aida Hurtado, as quoted in Sidonie Smith, Subjectivity, Identity, and the Body: Women’s Autobiographical Practices in the Twentieth Century (Bloomington: Indiana University Press, 1993), 159. Simone Browne frames slavery as a prehistory of modern surveillance practices, beginning with slave ships, the Book of Negroes, slave passes and runaway notices, lantern laws, branding and biometric identification, the one-drop rule, and synoptic power at auction blocks all the way to passports, stop-and-frisk, CCTV, and mass incarceration; see Dark Matters: On the Surveillance of Blackness (Durham, NC: Duke University Press, 2015). See also Khiara M. Bridges, The Poverty of Privacy Rights (Stanford, CA: Stanford Law Books, 2017); and Michele Estrin Gilman, “The Class Differential in Privacy Law,” Brooklyn Law Review 77: 4 (2012): 1389–1445.
108. Virtual invasions and data records were examples of what one scholar called “thin” surveillance, which monitored individuals without constraining their mobility. “Thick” surveillance, in contrast, including physical confinement, disproportionately affected “lower-status and marginal groups, such as the institutionalized.” John Torpey, “Through Thick and Thin: Surveillance after 9/11,” Contemporary Sociology 36: 2 (2007): 116–119; Marx, Windows into the Soul, 44.
109. David Sklansky, “Too Much Information: How Not to Think about Privacy and the Fourth Amendment,” California Law Review 102: 5 (2014): 1069–1121.
110. For an influential analysis of the carceral state, see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010). Birth control has in the early twenty-first century again become controversial. In Burwell v. Hobby Lobby Stores, Inc. (2014) the Supreme Court exempted certain corporations from adhering to a federally mandated contraceptive provision of the Affordable Care Act if the owners objected on religious grounds—establishing a protection of conscience that collided with the kind of privacy granted in Griswold.
111. The case for privacy is made well by Colin J. Bennett, “In Defence of Privacy: The Concept and the Regime,” Surveillance & Society 8: 4 (2011): 485–496.