Who Sees in Secret?

Sunday sermon from August 25, 2013
Texts: Genesis 9:18-29; Matthew 6:2-8
Given at Amherst Presbyterian Church, Amherst, VA

This is a very odd little story. I bet when your kids ask you to tell them the Noah story, this is not the one they have in mind. I hope you realize that before you’re halfway through the telling and they have to interrupt to ask you what it means that Mr. Noah is drunk in his tent. It’s hard to get past that part, even to the bit where his son Ham looks in the tent and sees his father lying there and goes and tells everybody about his dad’s embarrassment and then gets cursed and sent away, and if you can’t get past the part about the drunken stupor Ham looks very much like a victim of his father’s shame. So before we go any further, the problem with that interpretation is that in the context of the Old Testament it simply doesn’t work. Israel has any number of prohibitions, but alcohol isn’t one of them. Israel has any number of moral standards, but sobriety isn’t one of them. Especially because he planted the first vineyard in creation and could hardly be held responsible for being the first to feel its effects, by Israel’s moral standards, and regardless of our moral standards, Noah hasn’t done anything wrong. Don’t hear me incorrectly. I’m not making a case for the drunken stupor. I’m just hoping that we can figure out how to get past it. Because if Noah hasn’t done anything wrong, then Ham isn’t really the victim, and the curse he receives for telling everybody about his father’s embarrassment isn’t the product of Noah’s drunken rage. Instead it’s Ham’s behavior that becomes the immoral act at the center of this story: that by gazing into his father’s tent and publicizing his father’s intimate embarrassment, that Ham breaks a moral code not about intoxication but rather about dignity, and, more importantly, privacy.

Noah’s in his own tent. So if you can get past the drunken stupor, it’s privacy that beats at the heart of this text. And all of a sudden a very odd little story finds a surprisingly modern rhythm. Listen again: a man named Noah has three sons. One Thanksgiving holiday, his youngest son is home from college, and checking email on his parent’s computer. When he points the browser to Gmail, it automatically logs on to his father’s account, at which point he sees a message from one of his dad’s friends with the subject line, “How’s the hangover?” Unable to resist, he clicks on it. There are a couple of funny pictures attached from some cocktail party a few weeks back — okay, funny, and maybe a little embarrassing. But they’re too good to pass up, and five minutes later the son puts them up on Facebook. “Check out Dad living the high life! Can you believe this is the same guy who raised us,” at which point he tags his two older brothers. And pretty soon it gets around. You know, the family shares some mutual Facebook friends. And the next time dad logs on, he realizes just what has become of what he thought was a private moment. Not hard to figure out what happened. He had no reason to think that those pictures — from a private gathering, shared in private emails, would ever show up on the Facebook timeline of family members and coworkers and colleagues. He’s embarrassed, and angry, and maybe the son’s not going to be so welcome home come Christmas. So who’s the victim in the story?

Here’s another one. In the mid-1960’s a man named Charles Katz was arrested in Los Angeles and charged with being the middleman for an interstate gambling ring. The local branch of the FBI had gotten wind of his activities, and particularly noticed that he tended to do his business from one of a stand of three pay phones at a regular time every day. And so they had proceeded to attach wiretapping devices to the outside of the booths. For a week in February of 1965, Katz’s every phone call from this public phone booth was recorded, without his knowledge or a warrant being served against him. After his arrest, while nobody would go to bat for Katz on moral grounds, his defense took up the case on the grounds of his privacy: notably, that even though he had made his calls from a windowed telephone booth in a public space, that nonetheless upon entering the booth Katz had a “reasonable expectation of privacy,” and therefore that the warrantless wiretap violated his Fourth Amendment right against unreasonable search and seizure. Eventually, the Supreme Court agreed, and the standard of “reasonable expectation of privacy” became the law of the land.

But times have changed. And in an age of Facebook and Gmail, and in an age of counter-terrorism and homeland security, it is very difficult to know what degree of privacy any of us should reasonably expect. Consider the following from a 1983 article in The New York Times: “It is necessary to recall once again how the computers that power the N.S.A. are also gradually changing lives of Americans – the way they bank, obtain benefits from the Government and communicate with family and friends. Every day, in almost every area of culture and commerce, systems and procedures are being adopted by private companies and organizations as well as by the nation’s security leaders that make it easier for the N.S.A. to dominate American society should it ever decide such action is necessary.”

1983.

And yet something has been so shockingly revolting about the series of revelations over the past several months of the degree to which the American government is literally engaged in unwarranted digital surveillance. Facebook, Microsoft, Apple. Major email providers. Major search providers. Cell phone records, GPS records. I don’t think anyone in the general public is yet in a position to exhaustively detail all the mechanisms of this surveillance. But what is clear is that the standard reasonable expectation of privacy has not survived long into the new digital age.

I hear two justifications for the surveillance state in which we find ourselves. The first is that if you’re not doing anything wrong you shouldn’t have anything to worry about, which is akin to saying that Noah simply shouldn’t have been drunk in the first place. And I don’t think for a moment that Genesis 9 is or should be normative for our constitutional principles, but I do think that we who claim to be people of this book have some obligation to hold its values up against the practices we tacitly embrace, which is why for prospective readers of this story it’s so important to realize that the text doesn’t judge Noah for his drunkenness. Rather it argues that in the confines of his own tent, regardless of his behavior, Noah has a reasonable expectation of privacy that his son completely subverts. Of course if there had been some risk of harm, if we had suspicion that Noah was a threat to himself or others, then he would have to alter his expectation; that’s why we have warrants and why we have due process. But if the justification for surveillance quite in excess of due process is that you shouldn’t worry if you’re not doing anything wrong, then it should matter very much to us that Noah’s not doing anything wrong and still the text treats him like the victim of a terrible injustice.

The second justification is that privacy advocates (like myself) are living in a kind of political fantasy and not taking into account the geopolitical and jurisprudential realities of the world. The argument is that terrorist threats are real and cybersecurity threats are real and that this new frontier of privacy erosion is simply a pragmatic necessity of modern life; those who would cling to outmoded definitions of privacy and due process are trying to live in Shangri-La, but that this isn’t an ideal world and some consolations have to be made. But again I find our Biblical values very much in conflict with this line of reasoning. Noah’s nakedness is treated as a cause for shame and embarrassment: Ham obviously thinks so, or it wouldn’t be news, and Noah obviously think so, or he wouldn’t lay his curse upon his son. But it was only pages ago that Adam and Eve found themselves naked in the garden without embarrassment. In fact the story clearly says that only upon eating the fruit did they realize their nakedness and feel shame. In Eden, before the fruit, before the fall, before those first steps into the brokenness of the real world, Adam and Eve had no understanding of privacy, nor would they have placed any value in it. But in the real world, in the Biblical real world of Noah and his sons, privacy matters, not in defiance of the realities of the world but precisely because of them.

Of course, for us who are people of this book there is yet another wrinkle, which is that we might value this privacy while still worshipping a God who has searched us and known us and sees our thoughts from far away. It seems the definition of ironic, if not the definition of idiotic, to get up on our high horse about privacy while claiming a God who respects nothing of our personal space and even imploring for that same God to walk with us and journey with us and stay by our side. But nonetheless even Jesus places this value on privacy. In our Gospel text for today, his concern is that the practice of public prayer may turn his followers into exhibitionists, more concerned with how they seem to the outside world and less interested in honest conversation with their creator. And so he implores them, when they pray, to go into a room by themselves – as he does, in the garden, on the night of his arrest – so that in private their prayers might be genuine and their hearts fully open to God. So here’s the paradox at the center of the text: that as people of this book, privacy doesn’t mean we have something to hide; it means rather that we want to be completely open — to God, who has searched us from the beginning. And privacy doesn’t mean that we don’t want to be known. Quite to the contrary: it means that we want to reserve the power of knowing and looking and seeing from far away for the one in whose hands that power truly belongs, wherein it can truly work for the good of all of creation.

All of which means that when we debate the reasonable expectation of privacy, we’re not just having a legal or even moral argument. No, the argument we are having is also fundamentally theological, because at its heart it’s about whether God’s power of absolute knowing and looking and seeing is possible for human hands to safely wield, or whether in fact the sinful reality of the world — which, for Jesus, has corrupted the possibility of honest, public prayer — does not also corrupt those who would look everywhere and see everyone and know everything, even with the least of intentions, even with the best of intentions, even for the best of causes. It’s a theological argument because for those of us who claim to be people of this book, to believe in the power and importance of privacy is to recognize with thanksgiving that none of us get to play God. That only God gets to play God. That when we worship at the idol of surveillance — and do not be confused that it is anything other than precisely that — we worship an impossible fantasy in which the total understanding of the universe is both possible and well shepherded in our hands. Well shepherded in our sinful, broken, bloody, violent, selfish hands. History says otherwise. Humility says otherwise. This text very much says otherwise. The old quote says that knowledge is power. But power corrupts. And so the power of absolute knowledge must corrupt, absolutely.

At the beginning of the 2009 academic year, the Lower Marion School District in suburban Philadelphia launched a program in which it provided an Apple Macbook computer for each of its two thousand plus high school students for both classroom and at-home use. Understandably concerned with safeguarding its investment, the school district had installed on each Macbook a piece of anti-theft software, designed to help the school monitor and locate the laptop in case it was stolen. Now, good anti-theft software is intentionally invisible to the common user, so that the casual thief can’t just notice it and remove it the first time he turns the thing on. But in this case it meant the school district had distributed two thousand laptops with hidden software capable not only of tracking the computer’s location but also of using its built-in camera to take photos which could be sent back to school officials without the user ever knowing. Technically, if you’re building anti-theft software, you want just this kind of power. You could photograph the thief and send it right to the police. But in the hands of the administration it went terribly wrong. Soon enough, the school was using this power to subvert the privacy that its unconsenting students and their unconsenting parents would reasonably have expected. When it all came to court, photographs stored on school computers showed students in their rooms at home in various states of undress. At one point officials effectively investigated a student for recreational drug use without consulting police or any other legal authority. Many, many more images were deleted off of the school servers just as the news broke to the public, so we have no way of knowing if these were the worst of the infractions or just the tip of the iceberg.

Much to our national credit, the activities of the Lower Marion School System were a violation not only of the Fourth Amendment but also of any number of electronics communications laws. In court, the student victims won some form of justice for themselves and for their families. But, with nothing but respect and awe for the torture they must have endured, I wonder if they are really the only victims in this story. I feel confident that the administration of that high school did not en masse decide to begin a student laptop program so that they could spy on teenagers in the presumed privacy of their own rooms. They’re teachers; they’re not mysterious bureaucrats at shadowy government agencies. Very few of us set out for that kind of moral wrongdoing. But once the power was in their hands. Once they could look and see and know. Once you have that kind of control, it’s very hard to put that machine down. It’s very hard to turn that camera off. It’s very hard to walk away. We are not most of us so noble; you may as well ask us to tear out our own instinct and leave it there on the table. No, in this story I think everyone’s the victim, the victim of our own very human lust for power and control. Which means the importance of privacy isn’t just about protecting people who haven’t done anything wrong. It’s also about protecting those people on the other side of the camera, those in whose hands we now regularly place a power of knowing unprecedented in human history, people who are neither better nor worse nor more or less beloved by God than those whose faces we greet every morning in the mirror. For their sake, and for ours, the expectation of privacy is more than reasonable; in fact its one of the few things that can help us all remember who we are, and, more to the point, who we are not: only God gets to play God. In an ideal world, of course, we wouldn’t need privacy. In an ideal world, we wouldn’t have to deal with the kind of violent thirst for power that has dogged us from the beginning. But this isn’t an ideal world. Some consolations have to be made.

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