The struggle to be left alone

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THE UNWANTED GAZE: The Destruction of Privacy in America By Jeffrey Rosen Random House 274 pp., $24.95

Early in "The Unwanted Gaze," Jeffrey Rosen recalls the story of Catherine Allday Davis. Davis, the best friend of Monica Lewinsky, had her computer seized by independent counsel Kenneth Starr because she had corresponded with Lewinsky via e-mail during the Clinton affair.

Though Davis deleted many of her e-mails, one intimate, unrelated thought regarding Davis's boyfriend was strangely included by Starr in his report to Congress, and as such, an ordinary citizen was dragged unwillingly into a political circus and humiliated.

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Rosen, The New Republic's legal affairs editor and a professor at George Washington University Law School, uses such stories to spotlight eroded areas of privacy at work, at home, in court, and in cyberspace.

His interest is not only in the erosion of our legal rights under the Fourth Amendment, but the deterioration of social standards due to the emergence of the World Wide Web.

"Cyberspace," Rosen writes, "has altered the traditional private areas in which we can retreat from the observation and expectation of our employers and colleagues." Some of us, perhaps, believe the Internet is private. Unfortunately, according to Rosen, "nearly everything we read, write, browse, and buy" can be traced.

Rosen uses several recent public spectacles to argue forcefully for a reconstruction of "zones of privacy that law and technology have been allowed to invade." Among the notables: the investigation of Sen. Bob Packwood (the government seized Packwood's private diaries), the Clarence Thomas confirmation hearings (Thomas's video rental records were publicized), and President Clinton's affair with Monica Lewinsky. But to his credit, Rosen is mostly concerned with the privacy of ordinary people, not political figures.

In the workplace, in particular, we now all have to watch what we say to each other (verbally and electronically) because of the emergence of the "hostile environment" test in sexual harassment cases.

Rosen urges that some specific kinds of incidents of sexual harassment in the workplace would be handled better as legal actions based upon invasion of privacy. This approach places the "blame for inappropriate conduct on the perpetrator, rather than the employer," according to Rosen, and also takes into account the all-important social boundaries that have been violated. This is especially important because at least a portion of current sexual-harassment law raises serious privacy issues and, according to Rosen, "threatens values of free expression...."

This is an important point. Our society openly expresses itself precisely because we have built-in anonymity from the world among our families, friends, and intimates.

As Rosen reminds us, the Soviet Union's intense repression caused its citizens to have their private conversations in parks and to make telephone calls from the subway. This is hardly the kind of society we want to live in.

Troubling issues have also emerged recently in Fourth Amendment jurisprudence because the Constitution was drafted long before the creation of e-mail, not to mention the fact that our tabloid culture has effectively distorted what is considered a "reasonable person" for legal purposes.

Our traditional values of privacy can be recaptured by balancing constitutional rights against government interests, but also by stressing the sanctity of self-expression in this society. Rosen doesn't doubt that we can accomplish this goal if we have the will.

"There is nothing inevitable about the erosion of privacy," he writes poignantly, "just as there is nothing inevitable about its reconstruction."

*Brian Gilmore is a law reform attorney with the Washington Legal Clinic for the Homeless.

(c) Copyright 2000. The Christian Science Publishing Society

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