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This Month’s Book Review: THE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA By Jeffrey Rosen (Random House, New York; 222 pages; $24.95) Privacy these days is a little like old underwear: ragged and torn, with rips and holes that leave you feeling kind of exposed even when no one can see. In “The Unwanted Gaze: The Destruction of Privacy in America,” Jeffrey Rosen, legal affairs editor of The New Republic and associate professor at George Washington University Law School, suggests that you have every reason to worry. What is less clear is whether he thinks you can restore your privacy with a few good stitches or whether you need to get whole new drawers. The book itself stitches together some rather disparate threads. The first chapter, “Privacy at Home,” focuses on the U.S. Supreme Court’s evisceration of the protections against state seizures once accorded private diaries and personal papers. At the other end, the penultimate chapter, “Privacy in Cyberspace” (which was adapted into the April 30 cover story of The New York Times Magazine), attempts to survey the impact of the Internet in recording and disclosing minute details about ourselves that we never intended to be used for more than their limited, immediate purposes. In between, the bulk of the book is devoted to the argument that the extension of the federal laws prohibiting discrimination in the workplace to conduct that creates a “sexually hostile environment” is misplaced and counterproductive, and should largely be replaced by laws prohibiting invasions of such workers’ privacy. Rosen is not blind to the patchwork aspect of his book. He writes in an epilogue that “it may seem that I have written about two different subjects: on the one hand, the misidentification of certain kinds of sexual harassment as sex discrimination rather than invasions of privacy; on the other, the recent incursions, by law and technology, into our ability to decide how much of ourselves to reveal to others.” Then he attempts to tie it all together, adding, “in fact both developments are illustrations of the same subject, and that is the importance of maintaining private spaces to protect individuals from being judged out of context in a world of fleeting attention spans.” This is an original and important insight (and not just because the author, by my quick count, feels compelled to repeat it some 14 times in the space of 222 pages). Part of the violation that we feel when some private frailty is exposed to public view — whether the “we” be (in Rosen’s prime examples) President Bill Clinton and Justice Clarence Thomas, or just everyday folks — is the sense that we are not “really” like that, that an envious press and a prurient public, or just our gossipy neighbors, are mistaking some momentary lapse for the wholesomer whole. Maintaining privacy is also essential, Rosen argues, to the development of friendship, love, and intimacy because it protects “the selective and voluntary disclosure of personal information” that we wouldn’t dare share with anyone we didn’t trust. Rosen elaborates these central insights with persuasive force and clarity. Less compelling are his prescribed cures. He suggests everything from using “special privacy masters” to oversee state seizures of personal papers, to the creation of a “consensual sexual privilege” that would bar overly intrusive discovery in sexual harassment cases, to the greater use of message “scramblers” that would mitigate cyberspatial invasions of privacy. But none of these interesting but problematic suggestions is developed in any detail, and Rosen is largely reduced to preaching that we already have means to overcome any threats to our privacy if only we have the “will.” The reason for this default is not simply that it is always easier to identify problems than to find solutions; it also derives from the fact that, for all his insights, Rosen is never very precise about what he means by “privacy.” If you can’t be reasonably precise about what it is you seek to protect, you can hardly be precise about how to protect it or (the classic problem for courts and legislatures) how to accommodate such protections with other legitimate claims and values. Moreover, Rosen’s two passing attempts to define “privacy” hardly correspond to ordinary usage. Specifically, in the prologue he states that we can better appreciate the nature of the harms Paula Jones may have suffered if we are “armed with a definition of privacy as a claim about social boundaries that protect us from being simplified and objectified and judged out of context”; and in the epilogue he states that protection from state authorities is only one aspect of privacy, “if privacy is defined as the ability to protect ourselves from being judged out of context by controlling the conditions under which we reveal personal information to others.” But it is one thing to emphasize, as Rosen’s book does so well, the relationship between privacy and protection-of-reputation, and quite another to equate the two. A hermit is very concerned about privacy, but not one whit about reputation. More immediately, when we object to personal data that we supply for one purpose being used for a different purpose, our objection is more to a loss of autonomy than to any potential distortion of how we are viewed. For all its imprecision, the classic nineteenth-century definition of the right to privacy as “the right to be left alone” (this being the definition given by Judge Thomas Cooley in his 1880 treatise on torts that in turn was adopted by Samuel Warren and Louis Brandeis in their famous 1890 law review article “The Right to Privacy”) is much closer to what most people mean by privacy. In the same vein, the Oxford English Dictionary gives as its primary definitions of “privacy,” first, “the state or condition of being withdrawn from the society of others, or from public interest; seclusion,” and, second, “the state or condition of being alone, undisturbed, or free from public attention as a matter of choice or right; freedom from interference or intrusion.” This right to seclusion and freedom from intrusion is important, not just because you might misjudge me if you knew what evil lurks in my heart (cf. Jimmy Carter), but also because I can only think great thoughts when I’m left alone (cf. Marcel Proust). Or in the words of the greatest legal philosopher of the last millennium: “How can I think and hit at the same time?” (See “The Jurisprudence of Yogi Berra,” 46 Emory L. J. 697 (1997).) In this age of informational assault, the world is far too much with us, and it is only by preserving the sanctity of privacy that we may hope to discover and confront what really matters to us. Privacy, then, consists not only in controlling personal information but also in preventing intrusion into personal space, whether that space be physical or mental. Thus, for example, state seizure of a private diary invades one’s privacy interest, not only (or even primarily) because the information can easily be distorted or misjudged, but also because a private diary (even if kept on a word processor) is simply an extension of one’s private thoughts, intended for no one else except perhaps posterity. In his zeal to explain how uncontrolled private information can be wrenched out of context with disastrous results, Rosen neglects the equally disastrous results that accompany the simple destruction of private space and solitude. Any “solution” that attacks the former while ignoring the latter will prove half-baked. For example, legislation prohibiting a company from reselling information you provided for a limited purpose would only accomplish part of its purpose if limits were not also placed on the use the company itself could make of the information. Whether, of course, any such legislation might conflict with important counterconsiderations raises difficult issues; but by avoiding detailed proposals, Rosen effectively ducks such issues. That much said, one can agree with Rosen that privacy, however defined, is eroding on many fronts, that both business and government (and, not least, the courts) are very much to blame, and that counteraction is needed. Although he alludes to a variety of legislative (and technological) antidotes, Rosen ultimately urges a shift in attitudes to create “norms” more conducive to the protection of privacy. My own view is that there is already a considerable consensus that privacy needs to be better protected but that this will remain largely a pious hope without the enactment of far more comprehensive legislation than now exists. Still, “The Unwanted Gaze” is a worthy contribution to the debate, and the very fact of that debate encourages me to believe that we haven’t lost our underwear yet. Jed S. Rakoff is a U.S. district court judge for the Southern District of New York. TRUST ON TRIAL: HOW THE MICROSOFT CASE IS REFRAMING THE RULES OF COMPETITION Richard B. McKenzie (Perseus Publishing, $26) McKenzie, an economics professor at University of California-Irvine, closely examines the Microsoft case, and finds nineteenth-century antitrust law no longer appropriate for twenty-first-century business competition. THE SELLING OF “FREE TRADE” John R. MacArthur (Hill and Wang, $25) A blow-by-blow account of the great 1993 NAFTA campaign and how a “bipartisan oligarchy” including Gore, Clinton, Bradley, and George Bush sold this unpopular piece of legislation to the American public. NEWJACK: GUARDING SING SING Ted Conover (Random House, $24.95) Writer Ted Conover spent a year as a corrections officer inside the notorious walls of Sing Sing. He exposes the controversial workings of the booming “prison-industrial complex” and grapples with the system’s dehumanization of both inmates and guards.

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