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Book excerpt: The Unwanted Gaze explores erosion of privacy in an age of technology

The Unwanted Gaze: The Destruction of
Privacy in America
By Jeffrey Rosen
Random House
Nonfiction
288 pages

This excerpt from The Unwanted Gaze: The Destruction of Privacy in America (Random House) appears in the Prologue and is reprinted by permission. Copyright 2000 Jeffrey Rosen

This book began as an effort to understand the constitutional, legal, and political drama that culminated in the impeachment and acquittal of President 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 browse-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 consider 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 technology seemed to sit uneasily with the public -- the DNA, the retrieval of e-mails that Lewinsky and her friend had tried unsuccessfully to delete, the tape recordings, the release of the secret grand jury transcripts on the Internet.

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 80s, 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 90s 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 that 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 the proclaimed from the housetops,'" they wrote.

But it was not, in fact, the desire to be left 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.

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Jeffrey Rosen is an associate professor at the George Washington University Law School in Washington 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.