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'Unwanted Gaze' Author Jeffrey Rosen Discusses the Destruction of Privacy in America
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(CNN) -- Law professor Jeffrey Rosen, author of the book "The Unwanted Gaze: The Destruction of Privacy in America," joined Law Chat on Wednesday, June 21, to discuss issues of privacy in the age of cyberspace. Law Chat is presented by FindLaw. CNN provided a typist for Rosen. The following is an edited transcript of the chat.
Chat Moderator: Please tell us about your book "The Unwanted Gaze: The Destruction of Privacy in America."
Jeffrey Rosen: The book tries to make a case for why privacy is important in the age of cyberspace. I argue that as thinking and writing and reading and gossip increasingly take place online, intimate personal information is recorded and archived on an unprecedented scale. This means that there's a great danger of confusing intimate information with genuine knowledge.
I begin with the example of Monica Lewinsky, and her bookstore receipts. Why was Monica Lewinsky so upset when the independent counsel revealed to the world that she had bought a copy of "Vox," a book about phone sex? It wasn't merely that the book was salacious. In fact, "Vox" is a highbrow book about phone sex. Instead, Monica Lewinsky objected that the revelation of her reading habits made the world think of her as one sort of person, while in fact she's much more than that. The world didn't know about all the other books that she read, and the other dimensions of her personality.
I argue that in cyber-space, all of us are a little like Monica Lewinsky, because our reading habits and our undeleted email, and the Web sites that we browse, and the groceries we buy, all are recorded and can later be taken out of context by those who don't know us. This is why privacy is important, to prevent us from being misjudged in a world of short attention spans. In a world where information can easily be confused with knowledge.
Chat Moderator: What prompted you to write this book?
Jeffrey Rosen: It began as an effort to understand the legal forces that had converged in the Clinton impeachment. In particular, I wanted to understand the shrinkage of privacy protections, and the expansions of sexual harassment law that had made that odd constitutional drama possible. But quickly, I became interested in the broader question of privacy as it affects all Americans. In particular, I wanted to understand the sad, slow erosion of legal protection for private papers. How was it, I wondered, that prosecutors were able to subpoena Monica Lewinsky's home computer, and resurrect her undeleted emails, as well as the unsent love letters that she had drafted to the president, but never mailed. This was such a violation, she said.
Indeed, in the 18th century, if you were to ask the framers of the Fourth Amendment to the Constitution, which protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, if you had asked them to name the paradigm case of an unreasonable search or seizure, they would have pointed to the search of a private diary.
In the 18th century, prosecutors were not permitted to seize diaries. In the book, I told the story of John Wilkes, the British rogue patriot, whose private diaries were seized by King George III and his minions. Wilkes sued the king's minions for trespassing and breaking into his house, and opening his desk drawers. He won 1,000 pounds, a tremendous amount in its day. The colonists from John Adams to John Hancock cited this case as an emblem of the sanctity of private diaries.
So, in the book, I set out to understand how it was possible that this ancient constitutional protection for private papers had been eroded in the late 20th century to the point where Monica Lewinsky and Sen. Bob Packwood were unable to conceal their private diaries from over-reaching subpoenas. After telling that story, I branched out and became interested not only in the ways law has eroded traditional protections for privacy, but also in the ways the changes in culture and technology have eroded it as well.
Question from AussieBen: What is the difference between information and knowledge? We are bombarded with messages such as "information and knowledge is power."
Jeffrey Rosen: Yes. Information is power. We're told that every day. And so it is. But information is not knowledge. Very few people know us in all of our complicated and often contradictory dimensions. My close friends know me. My parents know me. In a different context, my students know me. But even those who know me best can only know some dimensions of me. Genuine knowledge of another person is a slow process. It can only emerge over time, as we shed the various masks that we use to interact in society, and reveal aspects of ourselves to our intimate friends and acquaintances that we withhold from the rest of the world. In a world of short attention spans, it's easy to confuse isolated bits of personal information for genuine knowledge.
If you know the music that I downloaded last week on Real Network, you might think of me as one kind of person, the kind of person who would listen to a particular song. But in fact, I'm a very different person, and you wouldn't know the other dimensions of my personality. In the book, I tell many stories of people who were misjudged and unfairly treated by the exposure of intimate information that was confused for genuine knowledge.
In a sense, all of us in the age of cyberspace suffer from a phenomenon of the celebrity. When a celebrity appears every night in our living room on television, we may think that we know him or her, because we know bits of information, his mannerisms, his quirks, his favorite ice cream. But we don't really know a celebrity. Private citizens risk suffering from the phenomenon of the celebrity in the worst sense, identified in the public eye by the exposure of the most embarrassing book they read, or song they listened to, without an opportunity to present themselves to the public in a more complete and accurate dimension.
Question from Chicago: What do you see as the greatest threat to our privacy? Would it be the convergence of databases which hold disparate information about us, but when combined would constitute true knowledge about us?
Jeffrey Rosen: I think the greatest threat to privacy in the age of cyberspace is the risk that intimate information about our online browsing habits will be collected and archived in personally identifiable ways.
This leads me to the case of Double Click, Inc. Double Click is the Web's largest advertising broker. A few months ago, it bought Abacus Direct, the largest direct mail catalog database in the nation. In March, Double Click began to assemble electronic dossiers, recording the online and offline browsing habits and buying habits of Americans and linking them with their actual identities, obtained from their email addresses. Suddenly browsing that had been anonymous was transparent. It was as if Double Click was placing a virtual camera on all of our shoulders that would follow each of our online movements, recording the magazines we skimmed, the amount of time we spent skimming them, the pages that we lingered over, the groceries that we bought, and then stored this information in ways that could come back to haunt us.
Imagine the scope of the threat to privacy. Our insurance company might want the information that I browsed a site looking for medicine for an intimate ailment, and use this to deny me coverage. My employer might want the information. An ex-spouse in a divorce or custody battle might want the information. In the face of loud public protest, after its stock price plunged, Double Click backed away from its plan to create personally identifiable dossiers of our browsing habits. But this is the greatest threat to privacy in the future, the assembling of personally identifiable records of our online and offline activities. This is the challenge that defenders of privacy must resist at every turn.
Question from tribe: Do you think legislation is called for in dealing with the privacy rights of public people?
Jeffrey Rosen: Legislation to prohibit journalists and other citizens from commenting about public people raises troubling First Amendment concerns. I think the law should only intervene in cases of truly egregious invasions of privacy. Hidden cameras, for example, planted in intimate places to reveal activities that no person, public or private, should have exposed. But beyond that, I'm reluctant to see legal restrictions on the press expanded. This means that editorial judgments are all the more important. Respectable newspapers should hesitate to expose gossip and intimate information, except when the public interest is clear. Unfortunately, in the age of cyberspace, the distinction between the Drudge Report and the New York Times is increasingly elusive. Once gossip is archived in cyberspace, it becomes harder for respectable newspapers to ignore it. This is a serious problem, but unfortunately I don't think the law is well equipped to solve it.