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Jeffrey Rosen and the Naked Crowd: Liberty and Surveillance for All

Law professor and author Jeffrey Rosen argues that, in theory, security can be done in ways that won't scuttle privacy and civil liberties. But that's a tall order, and he acknowledges that it may not play out that way in practice.

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January 01, 2004 — CSO — Jeffrey Rosen's new book begins in the nude and ends up fully exposed to the winds of political fortune and the vagaries of public opinion.

The Naked Crowd (subtitled "Reclaiming Security and Freedom in an Anxious Age") opens with the example of the "Naked Machine," a device now being tested in airports that electronically strip-searches passengers, exposing not only the concealed items they're carrying but also their nude bodies, rendered in faithful detail. Rosen notes that another electronic device (he calls it the Blob Machine) has also been developed to perform the same strip search, with the same level of accuracy, but with one important difference: It abstracts the subject's body into an amorphous blob, ensuring privacy and modesty without sacrificing the security benefits.

Inspired by the contrasting attributes of the Naked Machine and the Blob Machine, Rosen sets out in his book to make the case that society can strike a successful balance between omnipresent security measures and the basic American values of privacy and liberty. On a challenge from his friend, Stanford law professor Lawrence Lessig, Rosen took up the task of discovering where that balance lies and what all the relevant playerspoliticians, courts, technologists and citizenswill have to do to achieve it.

But nothing is ever cut and dried. Rosen was surprised to learn that when faced with a choice between walking through the machine that makes one nude and the one that doesn't (given lines of equal length for each), many people chose the more invasive Naked Machine.

Rosen considers many possible reasons for this, but they're almost beside the point. The mere fact that some citizens will cede privacy and liberty for more security injects deep skepticism into Rosen's investigation and ultimately forces him to concede that while balancing American values with security is indeed possible, that doesn't make it certainor even likelythat we'll actually do it.

Hope, though, does spring from some unexpected corners. Congress, to name one. And you. CSOs, Rosen argues, have a unique opportunity to inform this debate and help the major players find the balance between security and liberty.

Rosen is associate professor of law at George Washington University Law School and is also the author of a previous book on privacy in the digital age, The Unwanted Gaze. CSO Senior Editor Scott Berinato spoke with Rosen about his new book, the Patriot Act and the role of great leadership in helping to preserve American values while also improving security.CSO: The proposition of your book is that the interests of security can be reconciled with the interests of liberty and privacy. How do you see that happening?Jeffrey Rosen: The first thing I set out to do was to imagine what a good balance between security and privacy would look like. I wanted to understand enough about the legal and technological choices we face to be able to imagine a good outcome. Then I tried to think through the various scenarios that would have to come to pass for the good laws and technologies, rather than the bad ones, to be adopted. I'm not sure how optimistic I am in the end. But I begin with the example of the Naked Machine because it helped me organize my thoughts about technology that could be designed in ways to protect privacy and security, or could be designed in another way that threatened privacy without improving security. The choices aren't always so stark where a simple design shift can make all the difference between a good balance and a bad one. But I liked that example because it was a vivid one and useful in thinking about the choices we face.Why would some people willingly submit to the more invasive Naked Machine rather than the Blob Machine?I've been so interested when I try out the example on groups of students or adults how different their intuitions about privacy are. Some people don't care at all about being naked because modesty isn't a value they put a high premium on. Some are so afraid [of terrorism] that they'll embrace a feel-good technology, even though they know rationally that it doesn't make them safer. Others put a high premium on privacy and are willing to pay a lot of money to avoid being naked because they're less afraid [of terrorism]. It's very hard to generalize about privacy. Some people are concerned about modesty. Others about control over personal information. Others about discretion, reticence or secrecy. Privacy is always one of the hardest values to define philosophically, and that's why it's hard to protect politically.It seems like people aren't thinking proportionately about responses to risks. We're talking about highly unlikely, but terrifying, events that we're focused on preventing.It's very true. The errors in judgment people make in reacting to remote but terrifying images of terrorism are not unique. We make the same kinds of errors when evaluating environmental risks or nuclear risks, or the risks of being victimized by drive-by shootings or baby theft. Certain cognitive biases that psychologists have enumerated with great precision cause people to overestimate the probability of being victimized by risks they can visualize in a dramatic way, and to underestimate the probability of less visually dramatic but more widespread risks.So can risk be taught? Can we train our minds and the public to understand the rarity of these events, or are we slave to the images?It's one of the most pressing questions about risk management, and I fear that it can't be taught in the way that empirical economists or self-styled rationalists would hope. When you have experts on television chastising people because they're more afraid of nuclear accidents than car accidentseven though the probability [of a nuclear accident] is much lowerpeople tend to tune out warnings like that because statistics aren't the way the mind processes fear of risks.

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