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“The Naked Crowd”

By Jeffrey Rosen

(New York: Random House; 260 pages; $24.95)

Last summer, I got a letter from the New York State Thruway Authority. The authority seemed to think that I had passed through one of their E-Z Pass toll plazas at an “excessive” speed. Their computers knew my speed (well, they claimed to), as well as the time and location where this “violation” had supposedly occurred. If I did it again, the letter warned, my E-Z Pass privileges would be suspended.

I’d been warned about this. For years, the American Civil Liberties Union, the Heritage Foundation, and all the players in between had been telling me that privacy was under attack. Attorney General John Ashcroft, they told me, was tracking my every move and cataloging my every thought. Innumerable corporations were reducing my life to a series of binary bits.

It seemed strange that such wildly diverse groups were in agreement, and it seemed more strange that none questioned the value of privacy to begin with. With “The Naked Crowd,” Jeffrey Rosen has added his voice to the chorus. Rosen, a professor at George Washington University Law School, is one of the more reasonable voices on the subject. But he doesn’t challenge the orthodoxy, writing that the United States has been transformed into a “Panopticon” where no person “is immune from the pitiless and unblinking gaze of the crowd.”

Most of Rosen’s short book (portions of which were already published elsewhere) examines America’s search for security after the 9/11 terrorist attacks. Rosen starts by looking at the psychological dimension, and he offers a damning diagnosis of the irrationality in America’s reaction: People don’t make reasonable assessments about threat. Irrationality increases when people act in crowds. The fear that attaches to new dangers (the D.C. sniper, mad cow disease) is out of proportion to the fear of everyday activities (driving, getting the flu), which pose a greater threat.

Hysteria doesn’t breed good security solutions, and Rosen effectively points out the bad ones: “feel-good” measures that don’t actually enhance security, like screening airplane passengers’ shoes; technological solutions, such as face recognition systems, that don’t effectively separate the dangerous few from the innocent many; overly intrusive screening techniques, like Congress’s consideration of a mass data-mining project called Total Information Awareness.

If we’re going to do better, who’s going to provide the solutions? Rosen’s answer — “bold and farseeing political leadership” — doesn’t inspire much confidence. Nor does his call for the establishment of a congressional body to oversee privacy regulation, or his championing of the much maligned Canadian customs agency as a model. Rosen may be right that politicians are better suited to do the job than “reactive and slow-moving” judges, but giving members of Congress the keys to this car isn’t likely to make a lot of people sleep better.

Rosen’s psychological diagnosis of irrational decision making is unassailable, if obvious. His critique of existing security measures is also solid, but his split-the-difference approach isn’t likely to satisfy either side. He’s in favor of “technologies and laws that protect both liberty and security.” He condemns racial profiling yet at the same time praises El Al Airlines, which uses profiling to screen out “Arabic-looking men, women traveling alone, and ‘shabbily dressed’ people.” When he does choose a side, it’s likely to be that of the privacy hawks, such as when he opposes using credit card screening techniques to look for terrorists because “unlike people who commit credit card fraud . . . there is no reason to believe that terrorists in the future will resemble those in the past.” There isn’t? Is he sure?

Still, when it comes to privacy, the sensible center is very sparsely populated territory, and Rosen’s voice is useful. In the final chapter, however, Rosen casts off this persona for a more freewheeling discussion of privacy and American culture. Again, he proceeds from the orthodoxy: Privacy is good, and it’s in ever-diminishing supply. Even our “expectation of privacy has been lowered as electronic surveillance has increased.”

That diagnosis simply ignores the life led by so many average Americans — who drive monster SUVs that serve as rolling isolation tanks; who live in gated communities designed to prevent contact with other people; who spend their nights typing anonymous messages into Internet chat rooms. If they were any more private, they’d be on the moon.

And as privacy has increased, Americans have come to expect more. Take movies, for example. Two generations ago, people went to the Main St. Majestic and sat with their friends and neighbors. Last generation, people drove to the multiplex at the mall. The faces were less familiar, but there was no expectation that watching a movie was a private act. Today people download movies from the Web for viewing on their home theater systems. Not only are they alone when they watch the movies, but they have developed an expectation that their selection is a private matter. If somebody’s choices were made public, she’d be mad as hell, and her inevitable lawsuit against the Internet provider could rely on a raft of laws passed to protect her privacy. Rosen may think that those protections don’t go far enough, but the government clearly worries more about privacy violations than it does about the suburban sprawl that is turning us into a nation of loners.

Rosen points out that Americans are under constant “dataveillance,” which he defines as the government searching “the private data of millions of innocent citizens in the hope of identifying suspicious patterns.” He’s no doubt correct, but most of that data consists of information about which people historically had no expectation of privacy: what kind of gas they put in their car, where they had dinner last night. Granted, that information can now be stored and sorted in ways never thought possible, but if our private life is nothing more than what we buy, is it worth protecting?

As Rosen looks at the state of contemporary American culture, he is properly appalled by its narcissism and exhibitionism. Like the rest of us, he’s seen too much reality TV and heard too many people yelling intimacies into their cell phones. Such behavior is a symptom of the loss of public space — space defined as a place where private matters aren’t forced on others. Rosen’s explanation for that loss is that traditional ideas about identity — born of social hierarchies and personal relationships — have broken down. In their place, “the crowd demands that individuals prove their trustworthiness by exposing as much personal information as possible.” There may be some truth to that observation, but it ignores the obvious: Private space has grown at the expense of public space. When people watch “Friends,” they’re not actually learning how to socialize. When they order products online, they forget how to interact with people in their local markets.

The Internet is an amalgam of public and private spaces, and some of the starkest effects of America’s privacy mania are visible on that medium. The public spaces, as Rosen notes, are occupied by blogs where people flaunt the most cringe-worthy details about themselves, seeming to relish in destroying the decorum and civility that used to govern public space. Meanwhile, in the private spaces, where the price of admission is raised by a user ID and password, the quintessential modern quest goes on, described by Rosen as the search for “personal intimacy with strangers.” The best way to do that, he writes, is to “establish an emotional connection with them by projecting a consistent, memorable, and trustworthy image.” But Rosen is missing the larger point: There’s rarely anything approaching intimacy in cyberspace. Genuine intimacy has been cheapened by the pursuit of mere “connection,” and in the AOL chat rooms and Yahoo message boards that are the most popular areas on the Internet, the easiest way to connect with people is to use the screen name “PartyGirl17.” Truth, consistency and trust are hardly the surest lures.

This culture is seriously out of whack — Americans are alienated and estranged from each other. In the exurbs where so many live, traces of the wider world are banished, save those that can be downloaded or broadcast in high definition. Ultimately, this imbalance is likely to turn back on itself. There’s a limit to the number of fiefdoms that can be supported by a radically fragmented culture. SUV drivers are so distracted by their onboard DVD players, they’re running off the road.

Overly aggressive privacy laws didn’t cause American isolation (although fearmongering by the privacy advocates doesn’t help), and letting John Ashcroft comb through people’s life histories won’t usher in a new era of communal feeling. But law doesn’t operate in a vacuum. Rosen is a law professor, and is most at home examining the operation of specific laws. He’d be well served to lift his gaze and consider the wider society that privacy is supposed to serve.

Paul Braverman is a senior reporter at The American Lawyer.

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