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Public Interest, Summer, 2004 by Thomas F. Powers

PRIVACY has become an increasingly urgent issue for many Americans after September 11. The USA PATRIOT Act expanded the domestic surveillance powers of policing agencies and considerably enhanced their authority to track and monitor individuals. It is hardly surprising that in the new age of terror the government would be more aggressive in its efforts to acquire useful information, and nowadays the government has the technological know-how and apparently the public's approval to do so. But many sound the alarm, insisting that civil liberties are threatened by Big Brother. Within reason, such concerns have their place. Yet taken too far, they can obscure deeper social pressures that underlie privacy's demise--pressures that long predated the September 11 attacks.

In The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age, ([dagger]) Jeffrey Rosen offers a thoughtful account of the questions we need to be asking as we assess the legal and law-enforcement responses to the terrorist threat. The author is a tough but fair critic of what he considers governmental overreaction to September 11. More importantly, Rosen limns the profound cultural and technological developments that probably made this overreaction all but inevitable.

A law professor at George Washington University and legal affairs editor of the New Republic, Rosen is well-placed to examine the novel threats to liberty and privacy that we face. In The Unwanted Gaze: The Destruction of Privacy in America, published in 2000, Rosen considered threats to privacy resulting from a combination of computers, the Internet, and law-enforcement efforts to go after workplace discrimination and sexual harassment. Rosen's subject in both books is ultimately modernity in tension with itself: liberty and privacy standing against public inquisitiveness and the new technologies that help feed it.

PRIVACY is rooted firmly in the logic of liberalism. Arising from the social contractarian view of the state, privacy (or something like it) is also enshrined in the U.S. Constitution's Fourth Amendment--in "the right of the people to be secure in their persons, houses, papers, and effects" and, more specifically, in the prohibition of "unreasonable searches and seizures." In 1949, this provision of the Fourth Amendment was "incorporated" (extended to cover state and local law enforcement), and in the years following, the Supreme Court made a disputed discovery of a general right of privacy, even though the word appears nowhere in the text of the Constitution.

But if privacy is central to our political tradition, it is also the case that modern life introduces forces that are anathema to privacy. At its worst, democracy gives way to a miasma of social conformity and public irrationality. Borrowing a term from the nineteenth-century French social theorist Gustave Le Bon, Rosen describes this as the problem of "the crowd." "Susceptible to irrational and contagious epidemics of fear," Rosen explains, the crowd cannot be relied upon to make the kinds of complex judgements required in the face of unknown threats like terrorism. When frightened, modern democratic society fixates on dramatic images (amply aided by television) and not on the complicated reality of a given situation. The crowd vents its fear in unreasonable ways: stigmatizing those tainted with any form of perceived "contagion" instead of facing the real issues, for example, or by seeking ineffective emotional rituals of purification instead of adopting sensible policies. Rosen points to everything from shark panics, overreaction to mad cow disease, the silicone breast implant scare, and the perennial tendency to see in every new type of crime (freeway shootings, wilding, stalking, gun-use by children) the beginnings of some sort of pandemic.

But if every crowd is fearful and irrational, Rosen notes that the American one is also increasingly addicted to a culture of self-exposure. And here lies another profound threat to privacy. Borrowing from Tocqueville and John Stuart Mill, Rosen reminds us of the corrosive effects of capitalism, democracy, and radical individualism. Lacking any solid anchor or source of authority in anything (Truth, Tradition, God) other than our puny selves, we moderns turn to the ebb and flow of public opinion or to the marketplace to determine how we should think, feel, and act.

But Rosen goes beyond Tocqueville and Mill, extending their analyses by arguing that reliance upon public opinion has been taken to a new, more troubling level. Standards of virtue have become replaced by a general concern to be, and prove oneself to be, "sincere." As a result, modern slavishness to public opinion is radicalized. We tend not only to do what others do, or what others say we should do, but we try to prove our sincerity by exposing ourselves to the crowd as fully as possible. Examples include the quasi-personal relationship now expected between politicians and voters, the new expose-style journalism, the self-help culture, the rise of reality TV, and the world of personal web pages and on-line diaries.