Washington and Lee Law Review

Volume 25 Issue 1 Article 20

Spring 3-1-1968

Privacy And Freedom

Alan F. Westin

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Recommended Citation
Alan F. Westin, Privacy And Freedom, 25 Wash. & Lee L. Rev. 166 (1968).
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 BOOK NOTES
PRIVACY AND FREEDOM. By Alan F. Westin. New York:
Athenum. 1967. Pp. xvi, 487. $1o.oo.
Alan Westin's Privacy and Freedom is a detailed and compre-
hensive evaluation of the conflict between privacy and surveillance in
modern society. The book was written under the auspices of the
Special Committee on Science and Law of the Association of the Bar
of the City of New York, with financial support from the Carnegie
Corporation, and will undoubtedly stand as a major reference work
on the subject.
The book is organized into four parts: (1) the function of privacy
in society; (2) a description of the advances in surveillance technology;
(3) the response of American society to the introduction of these new
techniques; and (4) an evaluation of the past and future role of
American law in this area. In the first of these parts, the author estab-
lishes the social value of privacy, an approach notably absent from
other works on surveillance. Privacy, he contends, provides individuals
and groups in society with a preservation of autonomy, a release from
role-playing, a time for self-evaluation and for protected communica-
tion.
Since World War II advancement in electronic spying devices has
presented increasing threats to privacy in society. Mr. Westin attributes
this increase in surveillance to the general low cost and ease with
which electronic devices may be obtained. An additional factor is the
change in social mores, evidenced by individual willingness to divulge
more information on living habits and a general element of curiosity
present in all societies, reflected by popular demand for intimate
details of the lives of public figures. Mr. Westin, however, does not
limit the concept of surveillance to physical observation, wiretapping,
or eavesdropping. He includes psychological surveillance (use of per-
sonality testing and lie detectors as a means of personnel selection)
and data surveillance (central collection of information on individuals
in computer banks).
The author contends that American law is beginning to respond
to this increase in surveillance by offering greater protection of privacy.
For example, he feels the Supreme Court is moving toward the protec-
tion of privacy as a constitutional right under the fourth amendment.
In Berger v. New York,' a case decided after the book had gone to
1 8
38 U.S. 41 (1967).
1968] BOOK NOTES 167

press, the Court did use the fourth amendment to invalidate a New
York eavesdropping law. However, Mr. Westin believes that there is
a need for legislation to safeguard this right. He advocates a balanced
position, generally prohibiting surveillance but allowing limited use
in cases of national security and major crimes. This recognition of
the demands for limited surveillance by law enforcement officials is
only one of many instances throughout the book of Mr. Westin's
realistic and objective appraisal of public attitudes and trends in
the law.
ROBERT L. BLAND

BACK TO BACK. By Leonard Baker. New York: Macmillan Com-

pany. 1967. Pp. 311. $6.95.
Franklin Roosevelt's Judicial Reorganization Plan of 1937 was
more than a waystation in the continuing struggle for liberal reform.
It was "a struggle to determine if the Presidency, the Congress, and
the judiciary were indeed equal branches of the federal government
as the people understood the Constitution to say, or whether one
branch, the Presidency, was supreme" (p. 6). Back To Back by news-
paper correspondent Leonard Baker is both a narrative and analytical
account of this struggle, its causes, and its effects. The author begins
his study with President Roosevelt's surprise announcement of Febru-
ary 5, 1937, to submit a judicial reorganization plan to Congress. The
plan authorized the immediate .appointment by the Chief Executive
of six additional Supreme Court Justices in order to obtain a body
sympathetic to New Deal legislation.
The eyewitness style Mr. Baker uses to examine this historical
event is well suited to the wide audience he is attempting to reach.
The legal and parliamentary intricacies of the dispute are explained
fully in non-technical terms without sacrificing style or accuracy. His
rich detail gathered by means of personal interviews with many of
the protagonists of that bitter fight, such as Senators Wheeler, Nye
and Pepper, adds immediacy and drama to the narrative.
Baker does not conclude his narrative with the congressional defeat
of the Presidential plan. Instead, he continues with an analysis of
the ramifications of the failure of the Court "packing" plan. He con-
tends that the Court fight saw the rise of the Southern Democrat-
Midwestern Republican coalition, which was to continue to block
progressive legislation until its demise in 1963 over the question of
civil rights legislation. However, Mr. Baker considers this twenty-five
168 WASHINGTON AND LEE LAW REVIEW [Vol. XXV

year lull in New Deal policies to be a long range advantage to the

progressive cause, since Americans were given an opportunity to digest
and evaluate this new approach to national government.
While Mr. Baker admits that the people gave Franklin Roosevelt
an overwhelming mandate for the continuance of New Deal legislation
in the 1936 election but were strongly opposed to the Judicial Re-
organization Act, he fails to draw a conclusion from this apparent
inconsistency. A logical conclusion is that an aura of respect and trust
surrounds America's highest judicial body, and despite the nation's
political convictions, a great majority of the people refuse to tamper
with the Court's physical composition. This is apparent today. While
many are in violent disagreement with the present Court's decisions,
only a small splinter group would attempt once again to change the
Court's composition.
While the story of the Court "packing" plan has been told in a
more scholarly and accurate manner many times before, the author's
fresh approach and novel source material make Back To Back a light
yet informative commentary on an intriguing historical period.
JOHN E. KELLY, III

BEHIND THE SHIELD: THE POLICE IN URBAN SOCIETY.

Arthur Niederhoffer. Garden City, New York: Doubleday and
Company, Inc. 1967. Pp. 253. $5.95.
Recent statistics on crime and widespread public disorder in the
United States have caused attention to be focused upon the police
and particularly upon the urban police forces. While dissention and
conflict between significantly large numbers of the population and the
police are apparent, perhaps the greatest problem exists within the
police system itself, in the attitudes of its members toward society
and themselves. Mr. Niederhoffer is uniquely qualified to discuss the
urban police force and its problems, having spent twenty-one years
as a policeman with the New York City Police Force. He also holds
a doctorate in sociology.
Mr. Niederhoffer's declared objective is to enable the reader to
"comprehend the present reality of the police system" (p. io). The
term "reality" is somewhat illusory because the author seems to use
it primarily in reference to police attitudes and personality, rather
than to the day-to-day operations of the urban police system. The
1968] BOOK NOTES 169

author accomplishes his aims through an extensive sociological study

of the causes and results of police cynicism.
Policemen bitterly think of themselves as a minority group in a
society where the upper-class looks down on them; the middle-class
ignores them; and the lower-class fears them. Even the courts appear
to be against them.
Cynicism is an ideological plank deeply entrenched in the
ethos of the police world .... For many reasons the police are
particularly vulnerable to cynicism. When they succumb, they
lose faith in people, society, and eventually in themselves. In
their Hobbesian view the world becomes a jungle in which
crime, corruption, and brutality are moral features of the terrain
(p. 9).
Cynicism is regarded by the author as being at the very core of
police problems and his approach throughout most of the study is
to point up the sources and results of police cynicism rather than
suggesting solutions to police problems.
The author discusses the dissatisfaction of large numbers of police-
men with recent Supreme Court decisions extending the rights of
criminal offenders and limiting police procedure. He asserts that
bargaining between defense counsel and the courts, not police in-
terrogations, has produced almost all past and current confessions.
Statistics are also presented to illustrate that law enforcement has not
been hampered by the recent Supreme Court rulings, except insofar
as they have engendered greater cynicism among policemen.
The study clearly indicates that the basic problem in the develop-
ment of more efficient law enforcement is to change police attitudes
toward society, their work, and themselves. Such changes will not come
about by adding men and equipment to the present forces but will
result only by developing public respect and concern for the police
and their vital role in society.
HARRY C. ROBERTS, JR.

THE JURY AND THE DEFENSE OF INSANITY. By Rita James

Simon. Boston: Little Brown and Company. 1967. Pp. 2 6 9. $1o.oo.

Changes in the criterion for determining legal insanity, as in-

troduced in Durham v. United States,' have produced much controversy
in the field of criminal law. In an effort to resolve the controversy
between the Durham test and the century-old M'Naghten (right-wrong)

2214 F.2d 862 (D.C. Cir. 1954).

170 WASHINGTON AND LEE LAW REVIEW [Vol. XXV

test for legal insanity, an experimental study was undertaken as part

of the University of Chicago Jury Project. The results of the study
have been compiled in this work by sociologist Rita James Simon.
The experiment was designed to study the operation of the criminal
trial jury in a case in which the defense of insanity is raised. Tape-
recorded trials of two such cases were "tried" before experimental
juries whose verdicts were compared with the instruction on legal
insanity given to the jury. One-third of the juries were given the
M'Naghten instruction, one-third the Durham instruction, and the
remaining one-third were given no instruction on insanity.
The author has compiled the statistical findings from the study
into numerous tables and charts which are used throughout the book
to support the findings and conclusions. Results of the group re-
actions in terms of verdicts showed only a slightly greater number
of not-guilty-by-reason-of-insanity verdicts from those juries instructed
under Durham than from those instructed under M'Naghten, while
the juries receiving no instruction responded much the same as those
instructed under Durham. The author concludes from these findings
that the substance of the Durham rule is more closely aligned with
the juror's natural sense of justice.
Other findings from the study presented by the author give the
reader a clear insight into the jury in operation. This information was
derived primarily from observations of the recorded jury delibera-
tions. However, the findings do not really resolve the controversy
between the two tests for legal insanity since the evidence at best shows
that the use of the Durham test would not materially alter the out-
come of defense of insanity cases. Perhaps this study also demonstrates
that there is no need for the controversy to be as heated as it some-
times is.
Thus, while this work by Mrs. Simon will not provide a solution
to the issue regarding the proper test for determining criminal re-
sponsibility in defense-of-insanity cases, it is valuable as a behind-the-
scene look into the deliberations of the criminal trial jury.
DAVID L. Ross