A Compelling Witness to Our Loss of Privacy--and Liberty

The great merit of Jeffrey Rosen’s “The Unwanted Gaze” is that it brings attention to how seriously the privacy of Americans has been invaded by government and commerce in recent years. The book’s great limitation, however, is that Rosen’s prescriptions for a cure are sometimes less than clear.

Yet even though Rosen’s ruminations on the current situation of American privacy sometimes lead to murky prose, he can be eloquent on our collective loss of liberty.

An associate professor of law at George Washington University Law School and legal affairs editor of the New Republic, Rosen explains how he began this book as an inquiry into the impeachment and acquittal of President Clinton. He quickly moved, he says, into a look at the extraordinary invasions of privacy of the president, and of Monica Lewinsky, that came about merely because Paula Jones filed a sexual harassment suit against the president.

Jones’ lawyers were permitted to go on a fishing expedition, asking the president to identify all women with whom he had had sexual relations while governor of Arkansas and president. Lewinsky was forced to describe her consensual activities under oath. Special prosecutor Kenneth Starr subpoenaed love letters Lewinsky had drafted but had not sent to the president. Starr even subpoenaed the books she had bought since 1995. (Justice Clarence Thomas, Rosen writes, was subject to the same kind of grossly intrusive inspection on his nomination to the Supreme Court: His video store rentals were subpoenaed and published.)

From the latter part of the 18th century through most of the 20th, such intrusions into the most intimate relations of a citizen were shielded from public view by the weight of Anglo American law. In 1763, for example, King George III’s messengers broke into the house of John Wilkes, a noisy critic of the king’s government, and seized his diaries and private papers. In a landmark blow for liberty, the appellate justice, Lord Camden, wrote of Wilkes’ case that “[n]othing can be more unjust in itself, than that the proof of a man’s guilt shall be extracted from his own bosom.”

Camden’s robust sentiment echoes the 4th and 5th Amendments to the U.S. Constitution, which outlaw unreasonable searches and seizures and self-incrimination.

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But in recent years, Rosen writes, the Supreme Court has narrowed the definition of impermissible searches and expanded the scope of permissible searches and warrants. The result is an intrusion into citizens’ privacy that neither Lord Camden nor the founding fathers would have countenanced.

Part of the trouble in the Clinton and Thomas affairs was the development of sexual harassment law. Rosen finds that laws against sexual harassment, as interpreted by the Supreme Court, are hopelessly vague. He argues strongly for shifting most sexual harassment law to a concept of the law of privacy that would leave room for some elasticity in the relations between men and women.

Sexual harassment law, he believes, demands too much “transparency” in personal conduct. “Privacy is a form of moral opacity, and opacity has its values,” underscoring the quote from the Talmud from which he draws his book title: “Even the smallest intrusion into private space by the unwanted gaze causes damage, because the injury caused by seeing cannot be measured.”

Feminists in the mold of Catharine A. MacKinnon will not like Rosen’s book. He specifically rejects her argument that, as Rosen says, “gender inequality is inextricably linked with heterosexual desire.” But nondogmatic readers will be impressed by his humanistic attempt to balance competing values.

“A liberal state respects the fact,” Rosen writes, “that each individual has some precious and incommensurable interior essence that must be protected from official scrutiny. But when a state goes beyond the negative role of refraining from violating the dignity and privacy of its citizens, and uses its power to punish citizens for violating one another’s dignity and privacy, it may encourage a degree of surveillance and exposure far greater than the indignities it seeks to avoid.”

Rosen discusses privacy and cyberspace and finds that cyberspace offers mixed blessings. On the one hand, on the Internet you may go to many places and subjects, from politics to pornography, unobserved. On the other hand, your electronic footprints may be tracked later. He is inclined to believe that safeguards for electronic privacy can be developed.