Computers, Privacy & the Constitution

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BryanKimButlerFirstPaper 3 - 02 Nov 2010 - Main.EbenMoglen
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-- BryanKimButler
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 [23] Gawker: How a College Kid Livestreamed His Roommate’s Gay Sexual Encounter, Possibly Causing a Suicide (Updated), available at http://gawker.com/5651050/how-a-college-kid-livestreamed-his-roommate-having-gay-sex-possibly-causing-a-suicide.
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We have "privacy" cases for the same reason we have "gender discrimination" cases: because it used to be nearly impossible for the Supreme Court Justices to use the word "sex." We didn't have a privacy revolution beginning with the availability of the Pill in the early 1960s: we had a sexual revolution. The consequences were immensely ramified and complex, involving, as your essay shows, not only what people do, where they do it, and how they talk about it, but also how they talk and think about many other things, including politics and literary theory. The almost entirely male, white, Anglo-Saxon, Protestant judges who decided the early cases in which some few of the consequences of the sexual revolution reached the Supreme Court used both language and conceptions that distanced them from the nature of the real social changes involved. In law, language and conception becomes rule, and having become rule it channels power, which because power creates inequality and injustice means that the concepts and language of the law result in eddies of inequality and injustice within the stream of power that is supposed to be channeled by the rules into the creation of justice.

So here. You're right, it seems to me (largely because those you depend upon for the insight are right), that the replacement of right to sexual behavior by right of privacy creates a prison for sexuality within which safety is offered at the expense of actual liberation. This is one of the costs of treating the sexual revolution as an episode in the history of privacy. But any candor more candid would not only have made the judges uncomfortable, it would have made the counterrevolution more furious.

 

 
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