Privacy has no enemies. Its friends date back at least to St. Thomas Aquinas who wrote, nemo tenetur seipsum accusare—“no one is obliged to accuse himself.”
Is privacy destined to erode because of the electronic footprints of e-mail, the Internet, cell phones and the vast amounts of information gathered on almost everyone along the all-seeing communications highway? That is the multi-faceted issue to which Jeffrey Rosen, a professor of law at George Washington University Law School, addresses his attention. His book is challenging and provocative. But in the end it is unsatisfactory, possibly because the issue is at the present time almost unsolvable.
Rosen reports an avalanche of instances where personal privacy comes in second. He repeats the stories of Anita Hill, Paula Jones, Monica Lewinsky and Kenneth Starr. Rosen laments the invasion of privacy by the press and the government in an atmosphere he describes as a “culture of exposure.” He feels that the right to privacy has evaporated because of judicial decisions and the aggressiveness of the press. Rosen seeks to recreate the reasons why every citizen should have a legitimate expectation of privacy. But his book’s subtitle, The Destruction of Privacy in America, is clearly an exaggeration.
Technology itself seems to be the inherent enemy of privacy. Professor Rosen does not deny that fact, although he asserts that there is nothing “inevitable about the erosion of privacy.” He explains and persuasively argues for what Louis Brandeis in 1890 called the right above all rights, “the right to be let alone.”
Rosen, who is the legal affairs correspondent of The New Republic, is especially critical of laws that penalize sexually offensive speech or conduct that create a hostile environment. Rosen urges, on the contrary, that changing these offenses into violations that endanger privacy would accomplish the same result while protecting women and others from a serious invasion of their privacy. Those who sponsored and who now enforce laws against sexual harassment are not likely to be persuaded by Rosen’s rejection of the new federal statutory scheme, which has been upheld in essence by the United States Supreme Court.
The protection of privacy is a major objective of all three branches of government. Literature on this is abundant: the September 2, 2000, issue of the weekly National Law Journal contains eight articles on the prickly issues facing the Congress. The one sure guidepost is the fact that the secrecy imposed in 1974 on the Internal Revenue Service has been observed. Could this be an analogue as the technology of computers explodes? Clearly the public in every public opinion poll is demanding privacy. People know that the three top credit reporting agencies maintain files on 120 million American consumers, and that medical and law enforcement agencies possess information that could be humiliating, even devastating, to millions of Americans.
Professor Rosen reports on all these complex facts and argues that every government should respect the fact “that each individual has some precious and incommensurable internal essence that must be protected from official scrutiny.”
The privacy of the inner sanctuary of the soul of every person has always been a precious value in Christianity and probably in every religion. The capacity of society and the state to invade that sacred space has become a frightening reality because of the electronic revolution. The Unwanted Gaze (a phrase from the Talmud) contains admonitions and recommendations that deserve our closest attention.