THE UNWANTED GAZE: The Destruction of Privacy in America. - Review - book review

Washington Monthly, June, 2000 by Paul M. Barrett

THE UNWANTED GAZE: The Destruction of Privacy in America By Jeffrey Rosen Random House, $24.95

THE "UNWANTED GAZE" OF THIS BOOK'S title alludes to "hezzek re'iyyah," a concept in Jewish law, author Jeffrey Rosen tells us, which means "the injury caused by seeing." He quotes the Encyclopedia Talmudit: "Even the smallest intrusion into private space by the unwanted gaze causes damage, because the injury caused by seeing cannot be measured."

Jewish jurisprudence of the Middle Ages provided for a legal action to stop a neighbor from building a window from which he could peer into your courtyard, Rosen notes wistfully in this collection of essays on how protections of privacy have eroded in modern-day America. He believes we would be better off today if more people could sue over their privacy being invaded--one of the many provocative ideas in a book that bounces from medieval legal theory to Monica Lewinsky.

As we increasingly expose our thoughts and preferences by means of e-mail, Internet retail, chatrooms, and the like, we are losing control of how we are perceived, of our very identities, Rosen asserts. Fragmentary personal data are taken out of context and distorted in a world of shrinking attention spans. An unusual scholar-journalist who writes for The New Republic and The New Yorker, Rosen combines a facility with legal history and an apparent fascination with icons of contemporary political scandal. His quirky intellectual leaps may leave some readers a bit dizzy, and he sometimes seems to choose examples more for their celebrity dazzle than their actual value in illustrating general assertions. But overall, there is much to learn and debate in this lively book.

Two interwoven topics chiefly concern Rosen. First, there are the familiar incursions by law and technology into people's intimate dealings and expression. He wants to curb the unwanted gaze of government and employers into the lives of ordinary people. Second, he argues that some types of sexual harassment are misconceived as discrimination rather than as a form of invasion of privacy. The unwanted gaze that concerns him in this regard is not that of the leering male predator, but of the employer or prosecutor who, in the name of vindicating gender equality, intrudes on personal relations or expression.

Rosen excels at concise legal history for the layman. The best parts of his book explain in bursts of five pages or less the unlikely ways that legal ideas have evolved. There is, for example, the tale of how Anglo-American legal protection of private papers has eroded since Englishman John Wilkes, an 18th-century member of Parliament, successfully sued King George's minions for breaking into his London house in 1763 and seizing his diaries and other writings. The U.S. Supreme Court, at least through the late 19th century, Rosen explains, embraced the spirit of the Wilkes case--that government rifling of a person's records or papers violated principles of liberty, property, and privacy. But in the 20th century, the high court allowed the federal government to chip away at that view in the name of controlling white-collar crime.

Rosen deftly puts in context such ironies as legendarily-liberal Justice William Brennan contributing a key 1967 pro-law enforcement opinion empowering authorities armed with a search warrant to seize not just "fruits of a crime," such as contraband, but also papers that might be considered "mere evidence." The Warren Court's effort to constrain violent and racist police in the South by excluding evidence obtained from unconstitutional searches created the danger of seriously hampering legitimate police work, Rosen observes. That prompted the Court to pretend that such intrusions on privacy as planting bugs in subjects' clothing and rummaging in their trash weren't searches and seizures at all. "Any society that ties its privacy rights to the rights of the accused," Rosen writes, "is a society in which the legal protections for privacy will quickly evaporate."

He brings us up to the present with two well-known political sex cases: those of Bob Packwood, the former Oregon senator, who in 1994 was forced to turn over his diaries to the Senate Ethics Committee as a part of the sexual-misconduct investigation of his cloddish advances on female staffers and lobbyists; and Monica Lewinsky, the former White House intern, from whose home computer Independent Counsel Kenneth Starr (among his other excesses) was able to extract drafts of never-sent love letters to President Bill Clinton. The official overreaching in these two instances was perfectly legal under current standards, Rosen notes, demonstrating that almost no secret can be protected anymore against government prying.

Rosen uses stories like Packwood's and especially Lewinsky's to draw the reader in and add a little zip and torn-from-the-headlines topicality to his discussion. The problem with these examples is that they are so idiosyncratic. Consider Lewinsky: She came under the scrutiny of a (now nearly-extinct) independent counsel's office trying to bring down a president. What's more, the counsel, Starr, didn't only ogle her love letters: He took the bizarre step of including them in his lurid report to Congress, which was released on the Internet and eventually published. As Rosen himself acknowledges, it was the publicity, more than the search of her hard drive, that harmed Lewinsky. Thankfully, few of us need to fear a public undressing of that sort; our secrets aren't the stuff of Capitol Hill vendettas or media crazes.