Whenever some would-be social reformer tells me that individual rights need
to be balanced against the common good, I get nervous. And when someone
argues that the civil libertarians and privacy advocates have, in their
concern for privacy, constituted an active social harm, I get positively
jittery.
Which is why Amitai Etzioni’s book “The Limits of Privacy” has had me off
coffee for a week.
It was a book I felt I had to read, since Etzioni has become an outspoken and prolific participant in the debates over privacy issues online. His newspaper articles over the past year have dealt with privacy on the Internet (Boston Globe, March 29, 1999), database privacy (New York Times, April 6, 1999) and Internet content regulation (Wall Street Journal, Oct. 14, 1998). Indeed, Etzioni’s growing prominence on these issues is probably why he was a major source for a recent Times story about the privacy issues raised by tracing the Melissa virus’ creator.
Even so, Etzioni’s treatment of privacy issues in his new book came as an unpleasant surprise. The book is disturbing not just
because Etzioni thinks of civil libertarians like me as harmful to the
social order; it’s also troubling because of his willingness to embrace
just about every government initiative that would erode personal privacy — so
long as it can be justified in terms of a valid public concern.
Described in his press materials as “one of the world’s leading proponents
of communitarian thinking,” Etzioni is a sociologist at George Washington
University. But “The Limits of Privacy” is not sociology, nor does it rely on
sociological methodologies — instead, it is expressly a work of policy
advocacy.
Officially, Etzioni wants to
replace the rights talk in American policy and jurisprudence with a
“balanced” philosophy of privacy. Unofficially, his book is aimed at
discrediting those threatening civil libertarians and privacy activists and replacing
them with Etzioni’s “balanced” approach — what he calls “a
contemporary conception of privacy.” If there’s a hell in Etzioni’s
communitarian cosmology, it’s the realm of discourse in which lawyers and
civil libertarians win arguments by invoking individual rights.
Etzioni cheerfully acknowledges that he’s no lawyer himself (he likes to
drop the occasional aside about how irrational the legal system is), but
he’s certainly as tendentious as the most stereotypical litigator. And,
like a lawyer quizzing a witness about the latter’s decision to stop
beating his wife, Etzioni knows that if you ask the right kinds of
questions, the answers will invariably support your case: “To begin a new
dialog about privacy, I have asked … audiences if they would like to know
whether the person entrusted with their child care is a convicted child
molester.” Well, yes, Amitai, I’d kinda like to know that. So I guess I
should be willing to punt this privacy stuff, huh?
The author stacks the deck by beginning his book with discussions of two
cherry-picked issues — Megan’s Law and the HIV testing of infants — where
the interest in protecting the health and welfare of children is
indisputable, and where the countervailing privacy interests are
comparatively weak. He moves on, however, to the trickier issues of
government access to encrypted communications (where the government’s case
for guaranteed access is known to be rather weak, at least as far as actual
evidence goes) and the institution of a national I.D. card (the case for
which is typically framed less in terms of solving a known public problem
and more in terms of providing a raft of public benefits).
The reader who works through Etzioni’s discussions of these issues and thinks she’s got the author pegged as an anti-privacy zealot like David Brin will find she’s been thrown a curve by the chapter on medical records — which Etzioni finds to be too easily subject to abuse by insurance companies and other
monolithic villains of late capitalism. Medical privacy, says the author,
“is in a fundamentally different condition than the other four areas of
public policy studied here … Privacy is unnecessarily compromised without
serving any important public good.”
This last is not exactly a controversial proposition in itself — you can
find a similar view in “The End of Privacy,” a recent book by Canadian
political-science professor Reg Whitaker. Like Etzioni, Whitaker sees a
role for government in policing the excesses of commercial entities that
might misuse our private data. But where the agenda of Whitaker’s book is
mildly Marxist — his primary aim is to outline how technology and
capitalism synergistically fuel changes in the privacy landscape — the
purpose of Etzioni’s book is both simpler and more troubling: It seeks to
justify the role of government in making privacy decisions, whatever those
decisions may be.
Thus, when the issue is government-initiated privacy
intrusions, Etzioni argues that privacy is overvalued when “balanced”
against the public welfare. Yet when government might play a role in
protecting privacy — by, say, regulating private companies’ use of
commercial or medical databases — suddenly Etzioni is nervous about the
threat to privacy. He labels this particular conclusion “the Privacy
Paradox”: He believes that the greatest threat to privacy is not the
state, which is traditionally seen (he says) as the greatest threat to our
privacy, but Big Business, which you need the government to
police.
Maybe Etzioni is right about the relative weight of the threat to privacy
posed by corporations, and it’s true that civil liberties groups tend to
focus more on the threat posed by government. But this is because the Bill
of Rights is, after all, a set of limitations on government action — in
the United States at least, civil libertarians and privacy advocates have
fewer legal tools they can use when the issue is commercial or
nongovernmental intrusions on privacy.
In practice, this means that advocacy
groups like the Privacy Rights Clearing House and the Electronic Privacy Information
Center are forced to rely less on litigation and more
on public statements and moral suasion when corporations act in ways that threaten privacy. (It was such public outcry/education strategies by public interest groups that compelled Intel to
promise customers a way of concealing the serial numbers of PIII chips, and
that forced Microsoft to provide a means of erasing the serial-number
document stamp imposed by recent editions of Office.)
But even when Etzioni has a point, it’s hard to get past his paternalistic
communitarian agenda. You get the feeling as you read “The Limits of Privacy”
that Etzioni is only casually concerned about privacy issues per se; what
he’s really interested in is vindicating the role of government. This is
particularly apparent in the chapter promoting government access to
encrypted communications. Here, the knowledgeable reader will find much that casts doubt on Etzioni’s understanding — not only of encryption but also of the other issues he addresses in this book.
As someone who’s been contributing to the public debate about encryption
and wiretapping policy over the last seven years, I was
startled to find that Etzioni gets some of the most basic details of the
crypto debate spectacularly wrong. Most notably, he confuses key
recovery (the holding of decryption keys by the government, sometimes
referred to as “key escrow”) with public-key cryptography (crypto schemes like PGP, or Pretty Good Privacy, that depend on paired keys, one of which is freely available to the public). Absurdly, he keeps referring to the government’s policy as one of “public key
recovery.” If the keys are public already, you don’t need a
policy to enable the government to “recover” them.
But even if you ignore a howler like that one, you’ll be troubled by the
quality of Etzioni’s analysis, which is grounded in two approaches: a) attempting
to cast doubt on every argument advanced by crypto proponents and b)
accepting uncritically every argument the government advances in favor of
guaranteeing governmental access to private encrypted communications –
especially those arguments couched in terms of the threat posed by drug
dealers and terrorists who may use encryption to escape detection. (One can
imagine a vastly different, vastly better, book whose author was equally
skeptical of both sides of the encryption debate.)
This one-sided approach
results in some peculiar blind spots. At one point Etzioni writes that
“events that have a very low probability but a very high disutility (such
as the terrorist scenario depicted) deserve as much public attention as
those that have a relatively high probability but a relatively low
disutility (e.g., the acts of individual drug dealers or pedophiles).”
Here Etzioni embraces what I have called the Pascal’s Wager fallacy of
the anti-encryption contingent. This fallacy derives from
factoring an infinitely terrible event (the terrorist detonation of a
nuclear device in Manhattan, say) into your risk calculations. The result
is that, regardless of how low the probability of such an occurrence is,
any measure that might prevent it is pseudomathematically justified. For
all Etzioni’s talk of “balancing” rights against the collective good, he
doesn’t seem to get that the balancing doesn’t work when the government
gets to put its finger on the scale.
Etzioni confronts us with a similarly unbalanced “balancing” when he
discusses the now-discredited and abandoned “Clipper chip” proposal. Here’s
how he characterizes the issue: “Initially, the United States offered users
of encryption a choice: They could freely use whatever encryption software
they could find on the market (or the Internet), or they could purchase a
more powerful program (powered by the Clipper chip’s Skipjack coding
algorithm) provided by the U.S. government. The latter would include a key
allowing U.S. law enforcement authorities to decipher the messages.”
Etzioni characterizes the
Skipjack algorithm as “more powerful” because, well, the government assures
us that this is the case. In comparison, he says, nongovernmental
encryption schemes “may be unreliable or include trapdoors [he means
"back doors" -- "trapdoor" has a different meaning in cryptography] that can
be exploited by unknown parties.” In short, he argues that an encryption
technology designed by the government with a known built-in back door is
somehow more secure than publicly available software, based on well-known,
published algorithms, that might have a back door. This is topsy-turvy
reasoning.
The hidden assumption here is that the government means well, so its
guaranteed access to our private communications and data is somehow more
acceptable than the mere possibility (unsupported by actual evidence) that
programs like Pretty Good Privacy may have a back door.
But of course that
assumption is the whole ballgame. If there’s been a common theme in
American political life over the last quarter-century, it has been the
growing consensus on both the left and the right that the government, even
when it indisputably means well, can’t be trusted with too much power.
Let’s assume for a moment that Etzioni is right when he argues that privacy
interests necessarily stand in opposition to the community’s good (although
this is by no means a given — Whitaker notes that individual privacy can
also be justified in terms of its “social or collective value”). Even so,
as law professor Michael Froomkin points out, “this doesn’t allow for the
Leviathan.” That is to say, it’s a mistake to suppose that the collective
power of the state is the same thing as the community.
Etzioni’s writing,
in “The Limits of Privacy” and elsewhere, evinces an unarticulated equation of
“community” and “government” — but few people on the street, including
those who acknowledge the value of government, would accept that equation.
We are not, for the most part, governed by our communities but by our
governments. By cloaking the Leviathan of government in the guise of
“communitarianism,” Etzioni justifies (in the words of EPIC’s Dave Banisar)
“authoritarianism with a happy face.”
In the recent science-fiction novel “A Deepness in the Sky,” Vernor Vinge provocatively hints that societies encumbered with “ubiquitous law enforcement,”
facilitated by universal surveillance, are destined for collapse. But even
if society itself is not threatened by pervasive governmental access to our
private affairs, there’s little question that individuals are.
Look to the
words of Supreme Court Justice Robert Jackson, who, when serving as
attorney general to Franklin Roosevelt, made this observation: “With the law books filled with a great assortment of crimes, a prosecutor
stands a fair chance of finding at least a technical violation of some act
on the part of almost anyone. In such a case, it is not a question of
discovering the commission of a crime and then looking for the man who has
committed it, it is a question of picking the man and then searching the
law books, or putting investigators to work, to pin some offense on him.”
Given the immense scope of both government and private enterprise to peer
into our private lives (and, as Whitaker notes, private databases become
accessible to the government the instant an official shows up at the
database company with a subpoena), the few legal and practical privacy
protections we have begin to seem more precious — not just to civil
libertarians or to former sex offenders or to terrorists or criminal
suspects, but to the rest of us as well. Etzioni maintains
that it’s OK to intrude upon the privacy of criminal suspects because
“Democracies have made a special point, from the Magna Carta on, of
treating suspects as a special category.” What he fails to realize is that
these days we’re all potential suspects.
This is perhaps a partial explanation for the 1996 Harris/Equifax poll and the 1997 Harris/Westin polls, which show that 80 percent or more of
Americans are concerned about threats to their personal privacy. Etzioni
cites these polls in “The Limits to Privacy,” but he does so only to dismiss
them as the product of privacy-advocate scare tactics. I think it’s
unlikely that the majority of the public is relying solely on warnings from ACLU lawyers and privacy advocates; you don’t
have to be a civil libertarian to know which way the anti-privacy winds are
blowing.
If Etzioni is correct about anything, it’s that the tradition of
guaranteeing individual rights against government power has been to place
some individual interests beyond the realm of “balancing” considerations.
The government is not supposed to be able to ask, with regard to rights,
whether it’s good for the rest of us — on balance — if so-and-so gets to
rant from a soapbox in Central Park or if some of us get to keep our communications truly private.
But Etzioni fails to recognize that, to the extent
that each individual right is subjected to a balancing test, it tends to
get erased. State interests are always articulated in rhetorically
compelling ways (save our children from the child molesters!), and the
rights to which they stand in opposition are made to seem abstract,
unimportant or unnecessarily categorical.
Where Etzioni goes wrong the most is in failing to recognize
that the rights we have are themselves already the results of balancing
considerations. The Framers gave us a Bill of Rights not because they
assumed (as Etzioni mistakenly asserts that privacy advocates assume) that
individual rights can be had without any trade-offs. Instead, the authors of
the Constitution believed that guarantees like the Fifth Amendment’s
prohibition of the compelled self-incrimination of criminal suspects, or
the Fourth Amendment’s prohibition of general searches, or the First
Amendment’s protection of the rights of individuals to say and publish
disturbing things, were worth their social costs.
The Framers weighed the
costs and benefits a couple of centuries ago, and the Bill of Rights was
the result. It seems premature for Etzioni to propose a new balance of
individual rights against government prerogatives until he shows a sign of
having fully grasped the old one.
I‘ve often said publicly that I’ll never impose software filters on my daughter (now 5 years old and happily computing) — that my job as a parent is aimed at preparing my child for life, not hiding life from her.
What I never anticipated was that the harshest critics of “censorware” would persuade me to use blocking software myself.
And, in fact, they’ve caused me to rethink my feelings about software filters — to reject the notion that they are necessarily repressive, or that there is something inherently pernicious about the technology. I don’t hate government censorship any less, but I have a newfound respect for those individuals who, for whatever reason, choose to screen what they see online.
First, a little history: I’ve been fighting for free speech on the Net for a long time — for much of my career as a writer, and for my whole professional career as a lawyer and as counsel to the Electronic Frontier Foundation. In that role, I’ve worked on free-speech issues almost every day, and helped develop legal theories about freedom of speech on the Net that became part of the successful challenge to the constitutionality of the Communications Decency Amendment.
Our win in that case was based on a number of complementary constitutional theories, one of which was an argument that, reduced to its essence, goes something like this: The Communications Decency Amendment’s ban on so-called indecent online expression is not the least restrictive means of achieving whatever legitimate goal the government may pursue in its efforts to protect children. The existence and ongoing development of software that can be used to filter out such speech when it comes from the Internet is an example of a less-restrictive alternative that achieves substantially the same goals.
This argument is based on a standard constitutional test of the validity of any government action aimed at restricting constitutionally protected speech (and what the government calls “indecent” speech is nonetheless protected by the First Amendment). Such content regulations have to be shown — by the government, which bears the burden of proof — to be the least restrictive means of achieving the government’s goal.
I had made various versions of this argument in speeches and articles since 1994, and representatives of companies or organizations developing filtering schemes joined in the anti-CDA fight. But despite the fact that I saw strategic value in the existence of filters, I was never a fan of the software or of any of the proposed rating schemes for Net content. All of the products and systems I saw were deeply flawed in several respects — and, as reporters Brock Meeks and Declan McCullagh later revealed, the stand-alone software packages often seemed to have antigay, antisex or antifeminist agendas in the lists of sites and words that were blocked.
For many critics of “censorware,” this was all they needed to know: It meant these products were in some sense evil, since they incorporated some less-than-desirable opinions and blocked content on the basis of those opinions.
But I couldn’t join in their condemnation, in large part because I saw a sort of paternalism in it that was just as disturbing as that of the CDA. If there was anything that I’d learned as a civil libertarian and student of the First Amendment, it was the necessity for tolerating those whose views I disagreed with. Surely this included those parents who might choose to use a content-blocking product that I’d never use — a product whose content choices I personally might find abhorrent. After all, nobody was compelling me to listen to those parents, or to accept the agendas of the blocking lists, or to use the stuff on my little girl. In an open society, we allow people to speak their minds for the most part; we also don’t require everyone else to listen to the speakers.
In a number of online forums — mailing lists, in particular — I began to express this view. The result? I was suddenly attacked for being a tool of the censorware vendors — perhaps even in their pay! (It was also asserted, equally falsely, that EFF must have gotten donations based on my public “support” of filtering software.) Not that I was uniformly attacked at first — occasionally one of the anticensorware guys would try to win me over to the One True Way. When one of the opponents of filtering software first brought to my attention how he’d discovered that one product blocked gay sites, feminist sites and even the home page for my own organization, EFF, he expected me to be horrified. But I couldn’t muster up enough outrage — while I didn’t approve of these choices on the part of the programmers, I knew that for many parents this content blocking qualified as a feature, not a bug.
For me, an essential part of being a pluralist is tolerance for other people's views. Another part is tolerance for people's unwillingness to hear other people's views. Which means that the true pluralist should hesitate before trying to impose pluralism on everyone else.
Predictably, this nuanced view led me to be condemned as a sort of cyber-Girondist by the anticensorware Jacobins. To judge from the intense fervor of their stepped-up attacks on me, plus the increasingly fantastical character of those attacks, I'm certain they'd have guillotined me if they could.
In both my personal and professional online life, I'm known to be an acerbic critic of those I disagree with; I'm also known to be a thin-skinned one. But for years I'd also committed myself to engaging with those I argued with for as long as I could -- and, indeed, the sight of a slam at me in some online forum would often re-energize me to write a point-by-point response.
But the length and severity of these attacks by the Jacobins was something new to me. The inventiveness of the fabrications about me and about my views, along with the obsessive need to follow me from forum to forum for the purpose of discrediting me, disheartened me in a way I never had been before. At first I thought I had to respond to the attacks (typically from people whose own work toward freedom of speech scarcely extended beyond their indulgence in flame wars against the heterodox). But it became increasingly clear to me that my responses -- no matter how successful I was in framing them calmly and logically on the one hand or with passionate outrage on the other -- were doing me no good. The Jacobins, clearly pleased when they struck a nerve, would redouble their efforts, "explaining" how my claims were invariably a lie or a ploy, and discounting my record as a free-speech advocate. And the rest of the participants in the forum would invariably decide that both the attacks on me and my responses to them were tedious distractions from the real issues at hand.
It was my dismay at the Sisyphean task of rebutting these gratuitous attacks that led me to resign from one cyberlaw-oriented list that I'd been part of since its beginning four or five years before. At this point, I quit participating in most online forums altogether, and concentrated instead on revising the draft of my first book and preparing to move to New York, where I was about to begin a fellowship.
But I knew I would go back someday. And when I did, I was armed with a tool that promised to make my online quality of life a little better: the "Filters" component of the e-mail software called Eudora Pro, which allowed me to choose never to see e-mail sent by any of the Jacobins. And with this tool in "hand," I began to resume participating in a number of online forums.
I discovered to my delight that, by blocking e-mail whose "From" header included the name of any of the Jacobins, I never had to see what they said about me. Or at least not directly -- while I could have blocked most messages that even quoted a Jacobin's message, I chose not to, since I didn't want to be that distant from the stream of discussion, and since other people's responses to their attacks on me were a good gauge as to whether I needed to say anything at all. I found that by sparing myself these sallies that so often appealed to the devils of my worst nature, I could participate with a greater degree of equanimity. It was good both for my blood pressure and for my public image not to read these guys, much less engage with them.
But my delight in being able to "censor" the nastiest of my critics led me to think through the consequences of my choosing to use this technology. Was I somehow promoting an anti-free-speech agenda by using this software to cleanse my online experience of much of the content that caused me pain? Or was I doing something rather different -- demonstrating an underlying validity to people's choosing to block content they don't like?
These reflections, plus some thoughts about how computing technologies normally work when they block content, led me to the following conclusions about filtering software/censorware:
1. Filtering text is not hard. Searching for patterns in incoming text streams is one of the best and simplest things computers can do.
2. All filtering of text works more or less in the same way. That is, it searches for particular strings of characters, which may be words or Web addresses or PICS-compliant rating tags. There is little difference between what Eudora does, when it filters messages, and what Surfwatch does: Both applications look for certain strings of characters within messages and decide what to do with the messages on the basis of the presence of those character strings.
3. No matter what the critics of "censorware" try to do about it, the market for content-filtering software is only going to grow. Even those who don't use Eudora's filtering to censor offensive content, for example, will use the feature for routing incoming mail, for handling some kinds of e-mail spam and so on. For many people, the world is already too flooded with information -- this is a theme of David Shenk's book "Data Smog" -- and the development of tools that help manage this "information glut" can only be a growth market.
4. All filtering of text that functions at the user level can be imposed at the level of the server. "Server-level filtering" is a bête noire of Internet free-speech advocates -- it means that the folks running the larger systems, the network nodes and Internet service providers, are making content choices long before you get to see the content. But there's no technological barrier to a server-level implementation of my Eudora filters.
Of course, I'm not the only person to have seen such similarity between server-level content filtering and filtering by the individual; the Jacobins have done so as well. Although most of the mainstream public debate has been about government censorship and not individual use, many Jacobins have decried both server-level and user-level products, and, in fact, it was criticisms of user-level products rather than server-level ones that seeded their movement. Arguing an essential identity between server-level and user-level filtering, some of them have suggested not only that government should be barred from blocking content, but also that individuals should, perhaps, be barred from this as well.
5. This means that PICS isn't "the devil" (as law professor Larry Lessig put it last year); it's simply the devil du jour. In some respects PICS -- the Platform for Internet Content Selection, a ratings-scheme protocol -- is less dangerous to free speech than a product like CyberPatrol, since the former requires multilateral, international cooperation in order to work. (For more on the subject, read my note on PICS.)
When I have argued publicly that there is little fundamental difference between what Eudora's filters do and what, say, Surfwatch does, my interlocutors have objected that I'm comparing apples and, uh, Apples. "Censorware," they say, "is about censoring, whereas Eudora is designed to improve your handling of e-mail." One might just as easily say, however, that Eudora is designed to censor the bad experiences associated with receiving e-mail, and Surfwatch is designed to improve the experience of the Web for users' children. It's just a question of what rhetoric you choose.
But isn't it time to put aside the rhetoric -- both kinds of it! -- altogether? One of the most unhelpful principles articulated in the Technorealists' recent nonmanifesto is that "Technology is not neutral." While this may be true of a few technologies (the thumbscrew and the rack come to mind), the use of most tech is grounded less in the technology itself than in the minds, and morals, of its users.
It is the rare technology that compels its own use for evil purposes. Even botulin toxin, we now know, has its commercial cosmetic uses, and, even more remarkably, no country has used a nuclear weapon in anger even once since the year that particular technology was invented. And it is equally uncommon to find a "benign" technology that cannot be used oppressively. (Imagine what the KGB might have done if it had been able to keep its information on dissidents current with Filemaker Pro.) As I wrote in a brief piece in Wired last year, when I first began reflecting on this issue, what makes more sense than this constant, divisive bickering over software is to hate the censors, not the technologies. Anything else is software animism: In a sort of tribalistic way, it makes enemies of those who don't share the Jacobins' beliefs that this or that software is "the devil."
It's important to stress here that nothing about my experiences with the Jacobins has made me oppose government censorship any less, or oppose server-level filtering or the mandatory use of filters any less. And I still believe that the agendas and assumptions inherent in many content-filtering products and schemes are quite pernicious.
But the great irony of all these reflections about filtering software is that they forced me to discover for myself the value of censoring disturbing content. In short, the anticensorware Jacobins taught me to appreciate content filters.
That isn't all I've learned. While I'm still in the habit of acerbic postings, I've increasingly found myself rewriting harsh messages before I post them, or even apologizing, publicly and privately, when I've found that my critical comments have gone over the top. I suppose I feel a little more sympathy now for many of the onetime objects of my online scorn, and so I try more now to rein myself in a little. Even though I remain a devout civil libertarian, this small improvement in my posting style is a kind of censorship I can love.
As the media furor about the president’s alleged sexual adventures rages, the scandal has created a fascinating sideshow: the rehabilitation of Internet gossip columnist Matt Drudge. In a matter of days, Drudge went from scorned purveyor of unsubstantiated rumor to honored talk-show authority.
But the shift in the mainstream press’s attitude toward Drudge — from snooty disdain to cautious respect — is unlikely to last, given that few mainstream journalists are willing to acknowledge that the nature of Drudge’s work is scarcely different from that of their own. And if “Tailgate” fizzles as a scandal, you can bet that the press, eager to find someone else to blame for the media frenzy, will seize upon Drudge as a convenient scapegoat.
A number of media pundits — notably Howard Kurtz, the Washington Post’s media critic — were all too ready last fall to proclaim Drudge’s demise as a media force after White House aide Sidney Blumenthal filed a $30 million lawsuit against Drudge and America Online, which carries his trademark mix of political and Hollywood dish. (Drudge reported correctly that Blumenthal was rumored in right-wing circles to have a history of spousal abuse, but erred in failing to determine that there was no evidence to support that charge.)
But now that Drudge has played a key role in igniting the media firestorm surrounding President Clinton and his supposed affair with a White House intern, the 30-year-old columnist is once again being treated as a serious player by leading media institutions.
The shift in Drudge’s treatment by broadcasters has been extraordinary. Shortly before the Monica Lewinsky story broke, the Blumenthal-Drudge case was the subject of an installment of Ted Koppel’s “Nightline.” Koppel’s primary guest was Kurtz, whose eagerness to slam Drudge led to his making claims about the reliability and probity of the traditional press that are demonstrably untrue. Kurtz argued that a newspaper’s editorial hierarchy is what prevents a paper from publishing defamatory material — a revelation that must be rather startling to Richard Jewell, whom the traditional press wrongly presumed to be behind the bombing at the ’96 Olympic games in Atlanta. And Kurtz asserted that a mistake like Drudge’s would get him fired from any reputable newspaper — an assertion that even Koppel felt compelled to dispute.
Following the first week of the Lewinsky story, however, it was hard to watch any TV account of the scandal without hearing a reference to Drudge’s having “broken the story.” And, in fact, Drudge did break some parts of the story, including the fact that Newsweek opted at the last minute to delay publication of its own coverage. (Spurred by Drudge’s report and the resultant frenzy, Newsweek used its America Online site to get its version into circulation, but felt constrained in the following week’s magazine edition to emphasize that its reporter, Michael Isikoff, had uncovered parts of the story that Drudge didn’t know about.) On Jan. 25, a week after publishing his major Lewinsky piece, Drudge appeared both on CNN’s “Reliable Sources” (whose very name imposes the CNN imprimatur on any guest) and on NBC’s venerable “Meet the Press.” And in the next few days he appeared on shows ranging from “Talkback Live” to “Leeza.”
But this shouldn’t be taken as proof that the journalistic establishment has embraced Matt Drudge; what it really illustrates is the profound ambivalence with which that establishment regards him. You can see this ambivalence in Michael Kinsley’s essay “In Defense of Drudge,” which was a part of Time’s package dealing with the Lewinsky affair, and in John Schwartz’s essay in the Jan. 26 Washington Post. Kinsley feels compelled to distinguish between what Drudge does and what the really good journalists — like Kinsley — do, but then proceeds to defend Drudge as meeting a sort of allowable substandard. Schwartz is more straightforward: He begins by admitting his “powerful feeling” that if he ever met Drudge he wouldn’t like the guy.
- – - – - – - – - – - – - – - – -
But the strongest evidence of this ambivalence is the failure of mainstream journalists, in their coverage of the Blumenthal-Drudge suit, to report that it’s likely Blumenthal will lose the case. The professional journalistic establishment tends to assume Drudge will lose — partly because Drudge genuinely did err, but also because it believes this lawsuit illustrates that the journalism game is not one for amateurs and upstarts. The establishment couldn’t be more wrong — Drudge and AOL are likely to win (or at least not lose) because of three basic libel-law principles that almost every working journalist knows:
1. Public-figure doctrine. No one (except maybe Blumenthal’s lawyer) seriously disputes that White House aide and former journalist Blumenthal is a “public figure” as that term is used by the courts. This means that Blumenthal can’t win against Drudge unless he can show that Drudge published his story with “actual malice” — that is, he either knew for certain it was false, or simply didn’t care whether it was true or not. Unfortunately for the plaintiff, there’s no evidence that Drudge ran the piece with “actual malice,” and plenty of evidence that he did not. To be counted in the latter is Drudge’s inclusion, in the original piece, of a White House source’s assertion that the spousal-abuse claims were (in Drudge’s words) “pure fiction,” although (in the source’s words) “This story about Blumenthal has been in circulation for years.” At worst, the evidence tells us, Drudge was negligent — he tried to make his story accurate, but he didn’t try hard enough — and it’s a long-standing principle in American libel law that public-figure plaintiffs cannot recover libel damages for merely negligent reporting.
2. Vicarious liability. Blumenthal’s lawyer argued in a filing Wednesday that America Online should be held legally responsible for Drudge’s mistake, since the online service pays Drudge for the content. Sorry, Sidney, but libel law doesn’t work that way in this country, and it hasn’t since the 1960s. To hold a distributor of information liable for defamatory content, a plaintiff has to show that the service either “adopted” or reviewed the content in some way — but AOL quite deliberately acts as a channel, not as an editor, for most of the content it carries, including the Drudge Report. (AOL also pays the New York Times and Newsweek for content; does anyone think it should be held liable when these august institutions goof?) What’s worse for Blumenthal is that one of the provisions of the Communications Decency Act that was not struck down last year by the Supreme Court seems to bar anyone from recovering damages from a provider for content it did not originate.
3. Repairing reputational damage. Ask yourself this question — if you know that Drudge retracted and apologized for his report on Blumenthal, how has Blumenthal’s reputation with you been damaged by the report? The obvious answer: It hasn’t. Every working journalist knows that libel law isn’t about fixing someone’s hurt feelings; it’s about remedying damage to public reputation. In this case, the mainstream media’s eagerness to report Drudge’s goof ensured that the story of the retraction outpaced (by orders of magnitude) the scope of the original item. What’s more, while Drudge pulled the original item from his archives, his retraction has remained posted on his AOL site for about five months — meaning that, even if you exclude all the other media coverage from the equation, Drudge has made the retraction available about 150 times as much as the original item ever was. Worst-case scenario under these facts (even if you assume I’m wrong in my arguments above) — Blumenthal wins the case and is awarded damages of $1.
This is all old hat, of course, to our cadres of professional journalists; they learned this stuff in J-school or on the job. But their blind spots about Matt Drudge — a sort of “don’t try this journalism stuff at home” attitude — prevents them from seeing not only that Drudge will likely be successful in his libel lawsuit defense, but also that Drudge has spotlighted a new niche in the mass-media ecology: the one-man operation that can break a national story whenever it wants to. It’s this last factor — and not Drudge’s politics (which I find distasteful) or his journalistic acumen (uneven) — that has made him so much of a player that he had to be included on that “Meet the Press” panel.
But don’t expect Drudge’s centrality in the breaking of the Lewinsky story to insulate him from the backlash that’s already brewing — and that’s certain to intensify if the scandal fades or implodes. If “Tailgate” collapses, Drudge, and by extension the Internet, will become the “paparazzi” of the story — the guys who do the same thing we journalists do, but from whom we feel compelled to distance ourselves.
