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June 2000

The Unwanted Gaze: The Destruction of Privacy in America By Jeffrey Rosen Random House Click on the title to buy the book

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, chat-rooms, 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.

Another aspect of the Lewinsky saga makes it a strange and slightly distracting example. While there is no law against repeatedly having adulterous oral sex with the president of the United States, a woman who does it in and around the Oval Office might reasonably be expected to anticipate that word could get out, causing her some loss of privacy.

E-Snooping

In other sections of the book, Rosen ably surveys how the transformation of the workplace by e-mail and Internet use have made it possible for employers to monitor their workers' every keystroke. The greatest danger of this relatively new situation, in his view, is that bits and pieces of information---fragmentary e-mail exchanges or the trail of World Wide Web visits---may be wrenched out of context to brand us as what we are not. Of interest to technophiles, Rosen offers a kind of consumers guide to new services and software that may address many of his concerns by, for example, encrypting communication. Technology, he observes, could actually be used to rebuild weakened privacy protections.

In his most stimulating argument, which spans several chapters, Rosen claims that "the heart of the debate about workplace privacy at the end of the 20th century" concerns the interaction between sexual harassment law and employers' enhanced ability to monitor employees' electronic chatter and Internet explorations.

Goaded by feminist legal theorists, the Supreme Court in 1986 created a new category of liability under the federal statute that bars discrimination based on sex. Employers henceforth were responsible not just for sleep-with-me-or-you're-fired harassment, but also for the existence of a vaguely defined "hostile environment" toward women which could be created by taunts, jokes, colleagues' consensual flirtation, or fornication. The test was whether the offensive words and actions created an atmosphere "sufficiently severe or pervasive to alter the conditions" of the victim's job. Rosen correctly observes that most large companies, and many small ones, have instituted surveillance policies to make sure that dirty e-mail jokes and Internet girlie pictures aren't used to create a sexually hostile environment. The policies are eminently-rational defense strategies in our quick-draw litigation society, especially since the courts have failed to provide clear definitions of terms such as "severe or pervasive" offense.

Rosen wants to convince us that a purported cure for what might be termed frat-house sexual harassment (as opposed to the sleep-with-me-or-you're-fired variety) has turned out to be worse than the ailment. Combined with now-common electronic snooping technology, hostile-environment liability has become, according to this argument, the greatest threat to privacy facing workers. Rosen believes he has a tidy fix for the problem. The real harm suffered by women subjected to the offensive comments or unwanted advances of frat-house harassment, he writes, is not discrimination. It is an invasion of privacy: "being objectified and simplified and judged out of context in a world of short attention-spans."

Hostile-environment liability should be wiped out, he argues, because it makes illegal too many possibly innocuous actions---How could I tell she didn't want to go out with me, if I didn't ask a few times?---and encourages companies to turn themselves into electronic police-states. Rosen suggests that courts replace hostile-environment liability with an expanded right for women to sue over their privacy being violated. By replacing a discrimination theory with a tort theory, Rosen believes we would solve many ills. Victims would have to sue actual individual tormentors, rather than faceless corporations; that will "encourage individual responsibility," he writes, and deter avaricious plaintiffs' lawyers who prefer going after the deep pockets of companies. Since "invasion of privacy law focuses on speech targeted at a particular woman that has the purpose or effect of insulting or humiliating her," the Rosen tort would make it harder for overly sensitive women "to object to dirty jokes, overheard remarks, or pinups in private cubicles," he asserts. Randy e-mail expression would flourish, as would office-generated "consensual affairs and flirtations."

Sounds fun. But there are reasons to be suspicious of Rosen's alternative medicine. For one thing, at the critical point when he introduces this part of his argument, he writes that hostile-environment liability, "originally designed to protect the privacy and dignity of women and men in the workplace, has, on several occasions, permitted unreasonable invasions of the privacy and dignity of women and men in the workplace." (My italics.)

Several occasions? If that's all there have been since 1986, you might classify the whole problem as one of tolerable side effects, rather than a cure worse than the disease. Among Rosen's illustrations is Paula Jones' harassment suit against Bill Clinton, which became the excuse for an endless investigation of the president's sex life, including the Lewinsky affair. Again, the national political consequences of litigation concerning Clinton's libido---not to mention the important roles of Lucianne Goldberg, Linda Tripp, and all the rest of the weird anti-Clinton plotters---diminish the usefulness of this example. Was there really anything typical about the Clinton-Jones-Lewinsky saga?

What Rosen wants to do is cut down on sexual harassment suits and increase opportunities for confidential office communication, sex-tinged and otherwise. His new privacy tort would free "employers to reconstruct private spaces, inside and outside the workplace, in which employees can express themselves without fear of being monitored and observed."

A couple of reactions jump to mind. When people in my office want to talk about something personal, they typically don't use e-mail. They go to the diner across the street. I've never seen one of the big bosses there.

As for sexual harassment, Rosen may underestimate the healthy deterrent effect that hostile-environment liability has had in making some bosses think twice before hitting on subordinates or tolerating frat house ugliness. Misguided plaintiffs and greedy lawyers abuse hostile-environment law the same way they make a mockery of other legal rules meant to protect real victims. The Supreme Court has failed to provide guidance on the parameters of this area of law, leaving lower courts to grope in the dark. Tinkering may be in order. But that doesn't mean that it was foolish to worry about sexual harassment that falls short of quid-pro-quo demands. Gender relations on the job have improved vastly over the past two decades; it seems a safe guess that potential corporate liability had something to do with that.

Rosen's enthusiasm for drawing attention-grabbing connections sometimes gets him in trouble. But better that than another safe, mournful account of how nothing is private anymore. The author deserves credit for raising important questions in a lively, serious-minded, and challenging work.