The Unwanted Gaze: The Destruction of Privacy in America 1st Edition

From the legal affairs editor at the New Republic: how business and government monitor personal information.
Copyright 2000 Reed Business Information, Inc.

Using John Stuart Mill as his model, Rosen mounts a strong argument that citizens of the U.S. have had their right to privacy eroded over time, and never more so than in the recent past. He cites examples from English law and from American decisions to show how high the standards of privacy once were in different areas such as home and work, and how lawyers and the courts have whittled away at those standards. He also offers chilling accounts of the loss of privacy as a result of the new technology. The most famous recent case he cites is that of Monica Lewinsky's entire hard drive being subpoenaed (by Ken Starr) as a result of the Paula Jones sexual harassment suit against President Clinton--which Rosen claims was itself more of a privacy issue than harassment. Although it's hard to agree with all of Rosen's conclusions, he has still written a thoughtful book--and timely, considering the uproar over the long form of the 2000 census. Frank Caso
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Praise for The Unwanted Gaze

"        Jeffrey Rosen is America's most penetrating legal journalist, and this book is his magnum opus, bringing together many of the themes he has explored with such wit, elegance, insight, and imagination over the last decade. The Unwanted Gaze is as absorbing and downright fun to read as The Brethren, but with far more erudition, range, and sheer brilliance. There is no work--and no author--I know that does a better job braiding legal scholarship, academic ideas outside law, and popular culture. A contribution both timely and timeless."
           ---Akhil Reed Amar, Southmayd Professor of Law, Yale Law School

"        Jeffrey Rosen has the rare ability to write about complex areas of the law with grace and clarity. In this book, he addresses one of the most important and controversial legal questions of our time: the much-contested right to privacy, which Rosen persuasively argues has been seriously damaged by a wide range of intrusive innovations in law and society. Beginning with the Lewinsky scandal, Rosen ranges widely through critical moments in recent history and presents a disturbing picture of how law and technology have combined to imperil an important, if relatively recently asserted, right."
           ---Alan Brinkley, Alan Nevins Professor of History, Columbia University

"        Jeffrey Rosen performs a great service by exploring the many facets of privacy and the variety of ways it is under siege today. Moving swiftly past the most conventional wisdom about these matters, he sheds interesting light on many of the less obvious functions of privacy protection--not the least of which is its role in reducing the risk that we will be judged out of context and ultimately misunderstood in a world of depressingly short attention spans."
           ---Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard Law School

"        Possibly the most important privacy book in a generation. From Wilkes's diaries to Monica's phone calls, Jeffrey Rosen provides an extraordinarily provocative discussion of the ethical, legal, and philosophical dimensions of privacy. A brilliant exploration of one of today's most pressing social issues."                                          
    ---Marc Rotenberg, executive director, Electronic Privacy Information Center

"        Jeffrey Rosen has written an indispensable analysis of the judicial foundation of the Starr inquisition (among other insupportable assaults on individual freedom). His lucid writing and subtle thinking are exhilarating. When a problem is identified with such clarity and precision, its solution no longer seems impossible."
    ---Janet Malcolm, author of The Crime of Sheila McGough

writing, and gossip increasingly take place in cyberspace, the part of our life that can be monitored and searched has vastly expanded. E-mail, even after it is deleted, becomes a permanent record that can be resurrected by employers or prosecutors at any point in the future. On the Internet, every website we visit, every store we browse in, every magazine we skim--and the amount of time we skim it--create electronic footprints that can be traced back to us, revealing detailed patterns about our tastes, preferences, and intimate thoughts.<br>        <br>In this pathbreaking book, Jeffrey Rosen explores the legal, technological, and cultural changes that have undermined our ability to control how much personal information about ourselves is communicated to others, and he proposes ways of reconstructing some of the zones of privacy that law and technology have been allowed to invade. In the eighteenth century, when the Bill of Rights was drafted, the specta

Praise for The Unwanted Gaze

"        Jeffrey Rosen is America's most penetrating legal journalist, and this book is his magnum opus, bringing together many of the themes he has explored with such wit, elegance, insight, and imagination over the last decade. The Unwanted Gaze is as absorbing and downright fun to read as The Brethren, but with far more erudition, range, and sheer brilliance. There is no work--and no author--I know that does a better job braiding legal scholarship, academic ideas outside law, and popular culture. A contribution both timely and timeless."
         ---Akhil Reed Amar, Southmayd Professor of Law, Yale Law School

"        Jeffrey Rosen has the rare ability to write about complex areas of the law with grace and clarity. In this book, he addresses one of the most important and controversial legal questions of our time: the much-contested right to privacy, which Rosen persuasively argues has been seriously damaged by a wide range of intrusive innovations in law and society. Beginning with the Lewinsky scandal, Rosen ranges widely through critical moments in recent history and presents a disturbing picture of how law and technology have combined to imperil an important, if relatively recently asserted, right."
         ---Alan Brinkley, Alan Nevins Professor of History, Columbia University

"        Jeffrey Rosen performs a great service by exploring the many facets of privacy and the variety of ways it is under siege today. Moving swiftly past the most conventional wisdom about these matters, he sheds interesting light on many of the less obvious functions of privacy protection--not the least of which is its role in reducing the risk that we will be judged out of context and ultimately misunderstood in a world of depressingly short attention spans."
        ---Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard Law School

"        Possibly the most important privacy book in a generation. From Wilkes's diaries to Monica's phone calls, Jeffrey Rosen provides an extraordinarily provocative discussion of the ethical, legal, and philosophical dimensions of privacy. A brilliant exploration of one of today's most pressing social issues."

---Marc Rotenberg, executive director, Electronic Privacy Information Center

"        Jeffrey Rosen has written an indispensable analysis of the judicial foundation of the Starr inquisition (among other insupportable assaults on individual freedom). His lucid writing and subtle thinking are exhilarating. When a problem is identified with such clarity and precision, its solution no longer seems impossible."

---Janet Malcolm, author of The Crime of Sheila McGough

Jeffrey Rosen is an associate professor at the George Washington University Law School and legal affairs editor of The New Republic. He is a graduate of Harvard College; Balliol College, Oxford, where he was a Marshall Scholar; and Yale Law School. His essays and book reviews have appeared in many publications, including The New York Times Magazine and The New Yorker. He lives in Washington, D.C.

Prologue

This book began as an effort to understand the constitutional, legal, and political drama that culminated in the impeachment and acquittal of President Bill Clinton. But that strange and singular confluence of events prompted me to think about the Clinton impeachment as a window onto a less unusual phenomenon that affects all Americans: namely, the erosion of privacy, at home, at work, and in cyberspace, so that intimate personal information-from diaries, e-mail, and computer files to records of the books we read and the Web sites we brows-is increasingly vulnerable to being wrenched out of context and exposed to the world. What follows is an attempt to explore the legal, technological, and cultural changes that have undermined our ability to control how much information about ourselves is communicated to others. I would also like to explore ways of reconstructing some of the zones of privacy that law and technology have been allowed to invade.

In January of 1998, when Kenneth Starr began to examine allegations that President Clinton had lied under oath about an adulterous affair, I became interested in trying to identify the legal forces that converged in Paula Jones's sexual harassment suit and in the subsequent impeachment investigation. Why, for example, were Jones's lawyers permitted to go on a fishing expedition into the President's sexual history, asking him to identify all the women with whom he had sexual relations as governor and president? Merely by accusing Clinton of an unwanted advance, Jones was able to violate not only his privacy but also that of Monica Lewinsky, who was forced to describe her own consensual sexual activities under oath. How could the law permit such unreasonable searches, in which the investigation of the offense seemed more invasive than the offense itself?

The invasions of privacy continued to multiply during the Starr investigation and the impeachment trial that followed. Many examples of the erosion of privacy by means of technology seemed to sit uneasily with the public-the DNA testing, the retrieval of e-mails that Lewinsky and a friend had tried unsuccessfully to delete, the tape recordings, the release of the secret grand jury transcripts on the Internet. But Lewinsky herself was especially unsettled by Starr's decision to subpoena a Washington bookstore for receipts of all of her book purchases since 1995. In her memoir, Lewinsky pointed to the bookstore subpoenas as one of the most invasive moments in the Starr investigation, along with the moment when prosecutors retrieved from her home computer the love letters that she had drafted, but never sent, to the President. "It was such a violation," she complained to her biographer, Andrew Morton. "It seemed that everyone in America had rights except for Monica Lewinsky. I felt like I wasn't a citizen of this country anymore."

Monica Lewinsky is an improbable spokesperson for the virtues of reticence, but her ordeal raises deep questions about recent changes in law and technology that threaten individual control over personal information. In the late eighteenth century, the spectacle of state agents breaking into a suspect's home and rummaging through his or her private diaries was considered the paradigm case of the unreasonable searches and seizures that the framers of the Bill of Rights intended to forbid. In the most famous essay on privacy ever written, published in the Harvard Law Review in 1890, Louis D. Brandeis, the future Supreme Court justice, and Samuel D. Warren, his former law partner, announced confidently that "the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others." The legal principle that prevented prosecutors from scrutinizing diaries, letters, books, and private papers, Warren and Brandeis wrote, was the same principle that, in their view, should prevent gossip columnists from writing about the sex lives of citizens. They called that principle the right to an "inviolate personality" and said that it was part of the most general "right to be let alone."

In asserting a right to privacy that could constrain the press, the two lawyers were treading on adventurous ground; yet it was a matter of general agreement, in the 1890s, that the Constitution prohibited prosecutors and civil plaintiffs from rummaging through private papers in search of sexual secrets or anything else. How, then, could that consensus have eroded to the point that Lewinsky's unsent love letters could be retrieved from her home computer? Part of the answer, I will argue, has to do with an unfortunate confluence of decisions by the Supreme Court. The legal forces that culminated in the Clinton impeachment-in particular, the erosion of privacy law, embodied in Fourth and Fifth Amendment protections for individual control over personal information, and the expansion of sexual harassment law, to a point where people can be interrogated about the details of their consensual relationships on the flimsiest of allegations-are the product of surprisingly recent Supreme Court decisions. It was during the 1970s and 1980s, for example, that the principle that private diaries couldn't be subpoenaed as "mere evidence" in civil or white-collar criminal cases was quietly allowed to wither away. And it was during the 1980s and 1990s that the Supreme Court recognized sexually explicit speech and conduct that created a "hostile or offensive working environment" as a form of gender discrimination, a development that made it increasingly difficult for lower courts and employers to distinguish consensual affairs from illegal forms of sexual coercion.

The Lewinsky investigation might never have occurred, however, if these two unfortunate legal trends hadn't converged with a third novel and illiberal law: the Independent Counsel Act, which encouraged a level of inquisitorial zeal in which ordinary prosecutors-constrained, as they are, by time, money, and public accountability-are less likely to indulge. Now that both parties have experienced the excesses of monomaniacal independent counsels, that law, mercifully, has been allowed to expire. But like a blinding klieg light that exposes the fissures in every surface on which it is turned, the independent counsel law served the jarring yet useful purpose of revealing the fault lines in the legal and technological protections for privacy today.



A hundred years ago, Brandeis and Warren worried that changes in technology as well as law were altering the nature of privacy. "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the housetops,'" they wrote. But it was not, in fact, the desire to be let alone that motivated Brandeis and Warren to write their famous article; it was instead the desire to restrict discussion of an intimate family event to the sympathetic boundaries of their own social circle. What outraged Brandeis and Warren was a mild society item in the Boston Saturday Evening Gazette that described a lavish breakfast party Warren himself had put on for his daughter's wedding. Although the information itself wasn't inherently salacious, Brandeis and Warren were appalled that a domestic ceremony would be described in a gossip column and discussed by strangers. For this reason, they conceived of privacy in geographic or spatial terms. The press, they wrote, was "overstepping" the "bounds of propriety and of decency," and intruding on "the domestic circle."

At the beginning of the twenty-first century, new technologies of communication have increased the danger that intimate personal information originally disclosed to our friends and colleagues may be exposed to-and misinterpreted by-a less understanding audience. For as thinking and writing increasingly take place in cyberspace, the part of our life that can be monitored and searched has vastly expanded. E-mail, even after it is ostensibly deleted, becomes a permanent record that can be resurrected by employers or prosecutors at any point in the future. On the Internet, every Web site we visit, every store we browse in, every magazine we skim, and the amount of time we spend skimming it, create electronic footprints that can be traced back to us, revealing detailed patterns about our tastes, preferences, and intimate thoughts. A friend who runs a Web site for political junkies recently sent me the "data trail" statistics that he receives each week. They disclose not only the Internet addresses of individual browsers who visit his site, clearly identifying their universities and corporate employers, but also the Web sites each user visited previously and the articles he or she downloaded there. Amazon.com has announced a similarly creepy feature that uses zip codes and domain names to identify the most popular books purchased on-line by employees at prominent corporations. (The top choice at Charles Schwab: Memoirs of a Geisha.)

The sense of violation that Monica Lewinsky and the amazon.com customers experienced when their reading habits were exposed points to a central value of privacy that I want to explore in this book. Privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge. True knowledge of another person is the culmination of a slow process of mutual revelation. It requires the gradual setting aside of social masks, the incremental building of trust, which leads to the exchange of personal disclosures. It cannot be rushed; this is why, after intemperate self-revelation in the heat of passion, one may feel something close to self-betrayal. True knowledge of another person, in all of his or her complexity, can only be achieved with a handful of friends,...