The Unwanted Gaze: The Destruction of Privacy in America
by Jeffrey Rosen
Random House. 274 pp. $24.95
Politicians registering concern about privacy rights are generally understood to be on the side of the angels, and Supreme Court nominees who do not share their concern have trouble getting confirmed. Judge Robert Bork’s refusal to voice the expected ritual pieties about a constitutional “right to privacy” may have been the single largest reason for the Senate’s resistance to his nomination in 1987.
As unsubtly signaled by his subtitle, Jeffrey Rosen is positioning himself with the angels. The legal-affairs editor of the New Republic and an associate professor at the George Washington University law school, he bemoans what he calls “the erosion of privacy, at home, at work, and in cyberspace.” This characterization appears in his book’s prologue, and is matched in the epilogue by an equally sweeping statement about “the modern phenomenon of Panopticism”—an allusion to Jeremy Bentham’s 18th-century design for a prison in which all inmates would feel themselves under constant surveillance.
Rosen’s plan of attack is to zero in on several different (although somewhat overlapping) threats to privacy that have emerged in recent years. He is bothered especially by judicial decisions giving prosecutors more freedom to search out evidence and to rummage through individuals’ private papers. His chapter on domestic privacy takes off from the fact that diaries and other personal papers have less protection today than they had in England two centuries ago when courts held that such documents were a suspect’s “dearest property” and could not be used as evidence against him. Describing with admiration the English jurist who supported the controversial 18th-century political figure John Wilkes when the king’s minions invaded his house and removed his private papers, Rosen points to a number of contrasting recent events entailing what he sees as horrifying affronts to privacy—among them, the exposure in the course of judicial processes of intimate details of the lives of Monica Lewinsky, Webster Hubbell, and Senator Bob Pack-wood.
Rosen’s treatment of the law of sexual harassment—“jurisprurience,” he calls it—makes for perhaps the most interesting chapter of the book, and might actually trigger some useful rethinking of how our society deals with such episodes. The evolving law in this area has both expanded the range of impermissible behavior and nailed down the employer’s responsibility for preventing it—a combination creating extremely powerful incentives for the boss to snoop. If a company risks a lawsuit any time an employee is offended by sexually explicit e-mail, it will be more likely to monitor the way its computers are used. And, given the evidence (noted by Rosen) that around one-quarter of all sexual-harassment complaints reflect affairs gone sour, companies are likely to become ever more edgy about permitting consensual romance in the office.
Rosen’s basic proposal to avert these intrusions is to treat certain kinds of harassment not as illegal behavior punishable by the state but as a problem more appropriately handled by tort law, i.e., damage suits. The idea is that the party offended by, say, persistent dirty jokes delivered by e-mail could bring an “intrusion on seclusion” suit against the individual jokester rather than the company.
Rosen’s treatment of this and sundry other issues is engaging and generally sensible enough, but we are inevitably brought back to his alarm-bell subtitle: is privacy in America really under grave threat and at risk of being “destroyed”?
Rosen’s argument in the affirmative rests entirely on asseverations and anecdotes, some of which are less than compelling. Consider a case that he heavily emphasizes: Senator Packwood’s diary. This sordid tale began when the Senate Ethics Committee, wisely or otherwise, launched an investigation into Pack-wood’s unfortunate habit of groping ladies who crossed his path. The investigation culminated in a subpoena of Packwood’s diary. But the subpoena did not just come out of the blue. Packwood himself put the diary into play when he cited it in support of his version of several encounters, and the committee ultimately won the right to inspect all of it because the Senator had by this time begun altering its pages.
Rosen does not mention the alterations, but, plainly determined to frame the Packwood story as a bloody outrage, assails the “gratuitously mean-spirited decision” by the Washington Post to publish excerpts from the diary and hold its author up to ridicule. I looked up the Post articles and found them utterly innocuous, typified by some gentle kidding about the Senator’s love of baked apples. Everything taken together, it is hard to believe that most Americans would accept this and the other examples Rosen proffers as evidence of some generalized destruction of privacy. They would more likely conclude that privacy seems to be jeopardized mainly in the case of public figures who behave badly and then distort the truth after getting entangled in litigation.
Rosen presents no aggregate data to bolster his case, but he cannot be faulted for this; no one has yet found a way of measuring the total quantity of privacy out there. As numerous judicial luminaries have observed over the years, the concept itself is slippery. “Privacy,” Justice Hugo Black wrote in his famous dissent in Griswold—he was disputing the Supreme Court’s 1965 discovery of sweeping privacy rights in the Constitution—is “broad, abstract, and ambiguous.” In different contexts, the word refers to seclusion, or secrecy, or autonomy, and it is more or less impossible to get past armchair argument in estimating its rise or decline.
One could mount a plausible argument that Americans today have far more privacy in the anonymity of big-city life than was earlier available in gossip-ridden small towns. Employers today are also much more restricted than they once were in the questions they can put to job applicants about their family and medical backgrounds and possible arrest records. Rosen himself notes another gain for privacy: the Internet has made it easier for people in a variety of professions to work in their homes, where, free from the observation of others, they can opt for “informal dress (or undress), sloppy sitting, mumbling, and other self-involved behavior such as dancing around the living room.”
If it is debatable whether privacy is increasing or decreasing, it is also debatable whether this is a big issue across the land. Opinion polls, Rosen notes, generally show strong support for privacy rights, but at several junctures he concedes that the cause lacks political muscle: most people “don’t care about privacy until they have something to hide.” This is a large and damaging concession by an author trying to argue that we have a big problem here. And it also raises the question, seriously scanted by Rosen, of the extent to which, and the circumstances in which, we should care about privacy rights.
Rosen takes it as a given that these rights are profoundly important, predictably citing Justice Louis D. Brandeis on “the right to be let alone.” In the past twenty or so years, however, an alternative perspective has come onstage. Richard Posner, chief judge of the seventh circuit court of appeals, has pointed out that people want less to be “let alone” than to be able to control information about themselves, suppressing what might be thought shameful and disseminating what seems creditable. Rosen supports both the right to be let alone and the right to disclose information about ourselves selectively. “A central aspect of privacy,” he writes, “is the ability to control the face we present to the world.” But there are social and economic costs at issue here that he does not take into account.
We all have good and sensible reasons for wishing to know more about others than they care to reveal. With respect to politicians and corporations, we take it for granted that detailed disclosure, not privacy, is the high road. But neither is it simple nosiness to seek out details about the backgrounds and habits of friends, lovers, day-care workers, the guy selling you a used car, prospective sons-in-law, people asking for loans, and countless others.
In short, a lot more gazing is wanted, and warranted, than Jeffrey Rosen concedes in The Unwanted Gaze.