A member of the US Secret Service looks out from the roof of the White House. (REUTERS/Richard Clement)

When attorney and feminist blogger Jill Filipovic landed at Newark Airport in October, her checked bags had been opened and scrutinized by the Transportation Security Administration. Later that evening when she unpacked, she found the requisite TSA slip acknowledging the search inside her suitcase. It’s unsettling enough to find such a note under the best of circumstances. Most of us do not tuck our dainties, toiletries, computer discs and diaries into our luggage with the thought that an unseen stranger will lay hands on it all and maybe pass untoward judgment. If we do think about it, most of us try to rationalize it as a necessary evil; and we minimize it by imagining a mechanistic bureaucrat, a stern and steely sort, having no emotions beyond a gimlet eye for weaponry.

Anonymous searches like these are nevertheless—by their nature—very intimate interactions. Filipovic discovered this firsthand when the Oz-like mask of the imagined automaton was torn off in the most uncomfortable way. She had packed what she later described as a “discreet miniature vibrator” in her suitcase. The vibrator apparently gave the TSA agent quite a chuckle, for he scrawled a handwritten note across the form: “Get your freak on, girl!” Not surprisingly, when the incident went public, a firestorm of protest forced the TSA to take steps to fire the agent. The search of Filipovic’s suitcase was carried out by a real human being—who is no doubt suffering some remorse—not by our imagined soulless machine.

In the case of United States v. Jones, argued in the Supreme Court on November 8 and likely to be decided in the spring, the false comfort of the single-minded, weapons-hunting machine-man comes into more menacing focus. The appeal questions whether the government can place GPS devices on our cars without a warrant or our knowledge. The Justice Department asserts a right to do just that, with Deputy Solicitor General Michael Dreeben arguing that citizens—even Supreme Court justices—have no expectation of privacy outside their homes. As Justice Roberts succinctly queried, “Your argument is you…don’t have to give any reason. It doesn’t have to be limited in any way, right?” Without a flicker of hesitation, Dreeben responded, “That is correct, Mr. Chief Justice.”

The Constitution protects our right to be free from unreasonable searches and seizures by the government. At the same time, searches by the government exist against a very different backdrop from when the Fourth Amendment was written. How do we guard our “space” when it is neutralized as mere geography-beyond-the-house rather than the mobile positioning of the body politic? We live in an era when new technologies make the most personal information easily accessible, whether the government collects it or not. Our private lives are available “privately” everywhere, even if it’s deemed “data mining” by businesses. The market for information is as thorough as a laser; it is as inescapable as the air we breathe: our lives are online. Our medical records are stored in “clouds.” We date through websites. Our genetic code is decipherable from any bit of discarded bubble gum. “Private” security cameras aim their ceaselessly gathering gaze on every public street. Our cellphones blip our location to satellites in space. People send compromising pictures of themselves in “sext” messages that can never be retracted. If our neighbor wishes to surveil us or to stalk us, we are all too vulnerable.

And if the government wants to do the same, it has never been easier. The ubiquitous and relatively invisible private collection of data serves as a sort of outsourcing of surveillance. The government has merely to dip into that endless sea of factoids and sift for what it wants: the hardest part of the job has already been done by the private sector. Indeed, the only question is whether state actors can openly do what any ad agency does routinely.

Furthermore, while bystanders with cameras are often barred from taking pictures of police actions—like the eviction at Occupy Wall Street—more and more police departments are outfitting their officers with wearable cameras. Who will have access to that footage? Will police be able to keep it from defendants? Ought officers be able to review it in order to conform their reports to what it shows? Should such images be made subject to FOIA requests, or are they more like an officer’s private notes? And if made universally available, how should they be redacted in the interests of citizens’ privacy—as when an officer enters an innocent person’s home?

Filipovic’s experience is a small example of the temptations to which public and private eyes fall prey. New and evolving technology allows the infinite magnification of such intrusiveness, then renders it faceless and unaccountable. Inescapable as well: in order to fly anywhere, bodies as well as bags now pass through a radioactive gaze that sees into the very wisps of our powder and bone. For those who tremble at that option, the TSA also lets us all get our freak on with a personalized pat-down “in private.”

All in all, Filipovic was gracious about the incident, acknowledging that as offensive as it was, the agent meant it as “a joke.” I suppose it is a bit like jokes among undertakers: we know there is something violative and macabre that goes on in the inner operations sanctum, but ultimately we demand that it be constrained by a certain theater of respect. In the context of criminal law, that demands a warrant at the very least. In the context of random airport searches, it demands comportment with the rituals of dignity rather than humiliation. As Filipovic concludes so eloquently, “I get no satisfaction in hearing that someone [lost their job] over this. I would much prefer a look at why ‘security’ has been used to justify so many intrusions on our civil liberties.”

Sad fact: there are few women of my generation who don’t have what is known as our “Anita story.” Mine occurred in 1980. I was five years out of law school and had decided to shift my career from practice to teaching. I was walking down a long hallway at the Association of American Law Schools meat market for new hires. There were two men behind me who were joking about the excellent shape of my legs and the unusually well-defined musculature of my lower quadrants. (Did I mention that it was a very, very long hallway?) At the end of that eternal passage was my appointed interview room. I escaped into it, only to be followed by the two. They, as it turned out, were doing the hiring.

Life was like that sometimes, I thought. And so I went through all the proper motions of expressing how much my fine ideas could contribute to their faculty, pretending that nothing had happened.

I didn’t stop pretending nothing had happened until 1991, when Anita Hill testified to the Senate Judiciary Committee about the unwanted office approaches of her boss, then-chair of the Equal Employment Opportunity Commission Clarence Thomas. I remember how still and dignified she was at the center of that howling hurricane of mockery, meanness and machismo. It was like some psychedelic cross between The Crucible and The Wizard of Oz, with its swirling fantasies of witchcraft, conspiracy theories and mad satyric orgies. I remember everyone from Orrin Hatch to Rush Limbaugh dismissing anything that “might have happened” as “bedroom politics,” even though Hill’s allegations centered on misbehavior in the boardroom, not the bedroom, and even though those allegations implicated precisely Thomas’s public ethics as the chief enforcement officer of sexual harassment laws. “He said, she said” entered the national vocabulary. So did “They just don’t get it.”

Anita Hill graduated from Yale Law School in 1980. The percentage of women in law schools was 38 percent—in contrast to the approximately
50 percent it is today. Back in those times there were so few women among the legal professoriate that many law schools didn’t even have women’s bathrooms. And as for women of color—there were only five or six of us teaching in the entire United States.

If the percentages of women in all professions improved over the next decade or so, the ability to speak up and speak out was often constrained by fear of losing status, ruining one’s career. It was the shockingly abysmal treatment of Anita Hill by the United States Senate that changed all that. Women were mobilized in a way unseen since the time of the suffragettes. EMILY’s List took off, as well as hundreds of networks for women’s political empowerment. Twenty years later, if some men’s behavior has not changed as much as one might have hoped, the collective women’s response has undergone seismic change. It’s not “nothing” anymore.

Anita Hill remains an icon to whom subsequent generations are rightfully indebted. At the same time, she has not remained trapped by her own symbolism or frozen in time. It is sometimes forgotten that she is a respected scholar of contract jurisprudence, commercial law and education policy. She is a prolific author, publishing numerous law review articles, essays, editorials and books. Today, Hill is a professor of social policy, law and women’s studies at Brandeis University. Much of her most recent research has been on the housing market, and her most recent book, published this month, is Reimagining Equality: Stories of Gender, Race, and Finding Home.

It is ironic that the full substance of Hill’s remarkable intellectual presence remains so overshadowed by those fleeting, if powerful, moments of her Senate testimony. If the larger accomplishments of her life aren’t quite as iconic as that confrontation with Clarence Thomas, they nonetheless merit attention by feminists and scholars alike. To begin with, Hill is a remarkably elegant and accessible writer. For those who wish to apprehend the gravitas of her intelligence and dignity, Reimagining Equality would be a good place to start.

Some will remember that Hill was introduced at the 1991 hearings in the company of a large family—she is the youngest of thirteen children—but very little attention was paid to the significance of that protective wall of humanity. It helps, through this book, to have met Mollie Elliot, Hill’s determined maternal great-grandmother, born into slavery in 1847. It is instructive to read about how her grandfather fled Arkansas in 1914, narrowly escaping an old-fashioned, low-tech lynching. It is inspiring to know that her mother, Erma Hill, would have been 100 years old on October 16, and that “each day I honor her by working to live up to her dream that I will find a more just America than the one she lived in and that, as she did, I will leave it better than I found it.”

Despite this, Reimagining Equality is not principally a memoir. The arc of “home” ranges from her ancestors’ efforts at making their Arkansas farm a secure geographic space to her own settling in Massachusetts as the homesteading of an identity even more than of literal place alone. This trajectory is accompanied by a brilliantly lucid detailing of the apportionment of American real estate—and along with it, the American dream—along the lines of race, gender and class. While the most memorable heroines of this book are women who struggle to make a safe and nurturing domestic space of their own, the underlying narrative antagonism is rooted in a universal story that affects us all—of corrupt, downwardly spiraling land and banking practices that have disproportionately targeted women, minorities and the poor. From the 1800s to today, Hill meticulously tracks notions of communities split by the government’s investment in racialized redlining of neighborhoods; of encompassing traditions of maternity riven by neonatalist notions about which mothers should be having more or fewer babies; and of “ghetto lending practices” that have poisonously metastasized into today’s bundled subprime mortgage crisis.

Reimagining Equality is an important achievement. Hill manages to humanize and reinvigorate the American promise of security in one’s pride of home—even against the backdrop of harder-edged, more militaristically inflected calls to “homeland security.” The kinder, gentler complications that Hill brings to bear in teasing out this contrast are an eloquent continuation of her giving voice to the invisible, the voiceless, the undocumented, the hopeless and, yes, the all too literally homeless.

In 1991, Anita Hill made history by the simple yet terrifically courageous act of standing up to an arrogantly gender-biased political culture, as well as that part of “the public [who] rejected the testimony of my life experience.” Twenty years later, let us make sure that her written legacy is no less remembered than Thomas’s radically right-leaning Supreme Court opinions. Let us honor her by fully recognizing the liveliness of her ongoing cultural engagement: the excavation of a resonant equality that shimmers at the heart of the American dream, a light that demands its place as a beacon to all Americans, and beyond.

I’ve been to a lot of dinner parties lately where the question du jour is whether Nafissatou Diallo should have been “given her day in court” so she could “fully air” her charges against Dominique Strauss-Kahn; and, while we’re on the topic, whether Manhattan District Attorney Cyrus Vance Jr. compromised his political career with the motion to dismiss. It’s slow around Labor Day, so I understand the hunger to have that case go on forever; it would have been a mega-spectacle, and I, too, would have loved seeing the blood vessels in Nancy Grace’s temples balloon and throb.

Carnival possibilities notwithstanding, however, it’s important to remember that criminal cases fall apart all the time. Through one prism, this was just one of them—such is life. At the same time, as Katha Pollitt noted recently in a post on The Nation’s website, the onus on a victim asserting rape is very, very great. It seems there’s always “something” in her past that can and will be used against her. In addition, the way l’Affaire DSK played with hot-button political figurations—money, race, ethnicity, immigration—made its end especially excruciating. Like a piñata that has spewed its contents after much bashing, a ghostly ruin of pluralized images were left to us: poor hotel workers, haughty Frenchmen, lying black women, callous prosecutors, Muslim mothers, high-priced lawyers, insidious unnamed sources, guys who smile like cats that swallowed the canary and traumatized rape victims everywhere.

It’s important to understand why this case fell apart, to distinguish some of its particular features from the more general challenges in prosecuting rape. First, rape cases are notoriously difficult to prove, because the crime is so often one-on-one, or “he said/she said.” In the past, the mere lack of other witnesses was considered legal reason for letting rape go unprosecuted. This is no longer true—and despite confusing media assertions to the contrary, Diallo’s case was not dismissed on those grounds.

Second, despite our best aphorisms that “even” prostitutes and pathological liars can be raped, it remains true that the credibility of rape victims is too frequently doubted for specious reasons having to do with their sexual history. Media accounts suggested that Diallo’s suit was dismissed because of her “questionable past,” but that wasn’t what weakened the case most. It was that she lied to prosecutors again and again and again. The fact that she falsely claimed on her asylum application to have been gang-raped in Guinea probably wasn’t enough to doom the case—she might still have presented herself quite sympathetically as a desperate refugee fleeing a war zone—but there were other things undermining her credibility. Diallo repeatedly confused or misrepresented crucial sequences of events to the grand jury, to police and to prosecutors. Not only did the police investigation turn up a jumble of discrepancies in her story; her own attorney permitted her, even advised her, to talk and talk and talk to all manner of tabloid media hounds. That rather unusual—I would say reckless—decision captured yet more discrepancies for the record and diminished her reliability further.

Third, where an accuser’s story becomes subject to documentable weaknesses on this great a scale, it’s the prosecutor’s duty to move for dismissal. What seems to be overlooked in calls to give Diallo “her day in court” is that our criminal justice system pursues cases in the interest of public order, not on behalf of an individual complainant. That’s why criminal cases are titled “The People” of a jurisdiction versus an alleged criminal actor. (A civil—or more “private interest”—claim, on the other hand, would allow “Ms. Diallo as an individual” to bring a case against “Mr. Strauss-Kahn as an individual,” and, given the lighter burden of proof in civil cases, would offer a better chance of winning such a suit.) Vance does not represent either “the police,” as so many seem to think, or Diallo, but rather the broad justice interests of the entire state; it’s the reason he was required to reveal the flaws in her story when the investigation uncovered them. If it’s exculpatory, the defendant has a right to know.

The responsibility of prosecutors to dismiss a weakened case is designed to be a filter of sorts. Not only would it be a waste of public resources to take questionable cases to trial; it would fundamentally challenge the very notions of presumed innocence and reasonable doubt. The prosecutor cannot—as a matter of absolute professional ethics—proceed to trial with a claim where the prime witness repeatedly changes or lies about relevant, substantive elements of the story. This is not a matter of discretion: prosecutors are forbidden from presenting a case to a jury when they do not believe they can win, as judged by the standard of “beyond a reasonable doubt.”

That said, the perceptions of prosecutors in determining who is a credible accuser are inflected by the same biases and assumptions that afflict the culture at large. When it comes to rape cases, data have shown that men are more often believed than women, and whites more than blacks, and fine suits more than sweatpants. Bad prosecutors make bad decisions about witness credibility all the time—and therein lie the grounds for our political advocacy, the reason to keep pressing for more educated participants at every level of the system, from police to prosecutors to judges.

We have plenty of reasons to be worried about the social divides that play out daily in our judicial system. But if there is bias at work in Vance’s handling of his office, this case isn’t the best proof. The wrenching demographics of misogynistic insult, assault and murder cannot alone determine the result of a given “case or controversy” (as our Constitution puts it). Putting them ahead of actual proof to seek vengeance against a “smugly smiling” icon of the banking industry is not so very different from carelessly assuming that a “scowling” black youth “probably” did it because he was wearing a hoodie. We cannot—should not—all be Nancy Grace.