"The Unwanted Gaze: The Destruction of Privacy in America;" By Jeffrey Rosen; Random House; 274 pp.
WHEN FREEDOM OPPRESSES
By David Abel | Globe Staff | 7/12/2000
For much of the past century, two dystopian visions have loomed over Western society.
The more well known, George Orwell's "1984," imagined a future dominated by the tyranny of an external oppressor, an all-knowing political police force that tracks not only our movements but our most intimate thoughts. In the other dim forecast, Aldous Huxley's "Brave New World," we become our own oppressors, in that we learn to prefer mindlessness or the absence of conscience to the valleys and peaks of human emotion, from bliss to depression.
But as new technologies combine with new laws in this new century, dusty dystopian prophecies must adapt to new realities. In Jeffrey Rosen's limpid look at America in "The Unwanted Gaze," we realize how we have created, to some extent, what we tried to prevent. By seeking to expand our freedoms, we have limited them. And in trying to raise consciousness, we have helped to stultify it. In many ways, Rosen observes, we have become the victim of our own good intentions.
The ubiquitous legal-affairs commentator, who chronicled the Monica Lewinsky story for The New Republic and The New Yorker, has now produced a trenchant essay that speaks not of a distant dictatorship but of a pres ent and ever-more-threatening tyranny, one few are aware of until they become its victims. It's all told through the prism of the familiar sex scandal. And Monica Lewinsky, as dubious an innocent bystander as she may be, is the victim; Ken Starr, the prying independent counsel and the face of the new laws, is the oppressor.
The Lewinsky saga, Rosen writes, is significant because it rep re sents the depths to which our legal system has sunk, and how the courts and government have steadily eroded our traditional privacy rights. The essence of today's tyranny, Rosen argues, comes from the confluence of the electronic era with sea changes in the law regarding those rights. The age of the Internet, in which confidential documents often come in the legally dubious form of e-mail, has redefined the meaning of private papers. It has also, to some extent, created a new measure of our identities. For, if we are what we think, then who we are - or what people judge us to be - can be divined by the Web sites we view, chat rooms we visit, the e-mail we write, and the things we buy online.
The problem, Rosen explains, is that this dramatic new medium - which records intimate thoughts and decisions for anyone to access, anywhere - has arisen after decades' worth of sexual-harassment law has effectively scaled back our Fourth Amendment protections. And it comes at a time when the line between the office and home, thanks in the large part to the Internet, has grown increasingly blurry.
Sexual-harassment law, Rosen writes, has devolved considerably from its laudable intention of protecting employees against quid pro quo threats, such as a boss linking an employee's job to sexual favors. The innovations in the law have expanded victims' rights. Monica Lewinsky might never have become a household name had Clinton not signed a law in 1994 to reform federal rules of evidence. The new rules specifically allowed juries in certain cases to consider evidence that the accused had committed similar crimes in the past. That reform empowered Paula Jones's lawyers to fish for lurid details about Clinton's previous liaisons, and eventually helped justify Starr's seizure of Lewinsky's computer, her receipts from Washington bookstores, and the infamous dress.
Another legal evolution, perhaps more nefarious for privacy rights in that its principles are now engraved in corporate policies and university handbooks, has established protections against a "hostile environment." This vaguer category of harassment, which may come in the form of foul language or dirty pictures, has had the effect of making companies and even universities more closely monitor the speech of their employees and students. Because it is the company or university that can be sued for such a hostile environment, they have been forced to protect themselves, becoming more vigilant, monitoring everything from e-mail to viewed Web pages. And for Rosen, the heightened surveillance throughout the country recalls Orwell's Big Brother.
Protecting against lewd and crude behavior is not itself a bad thing, Rosen maintains. But he believes there are better remedies. Many hostile-environment cases prosecuted under gender-discrimination laws, he argues, would be better dealt with using invasion-of-privacy law. That would serve the purpose of redrawing the lines of culpability, from the company to the offending individual. And, he argues, it would reduce the need for companies and universities to monitor speech.
"The law is a blunderbuss rather than a scalpel," Rosen writes, "and recent scandals in Washington and the workplace have taught us that the effort to provide legal remedies for relatively minor invasions of privacy may inadvertently lead to privacy violations greater than those the law seeks to redress."
David Abel can be reached at email@example.com.
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