The Unwanted Gaze: The Destruction of Privacy in America.

The Unwanted Gaze: The Destruction of Privacy in America Jeffrey Rosen Random House 299 Park Ave. New York, NY 10171 274 pp., $25

Privacy is an elusive concept. Its definition depends on the values and perspectives of the person defining it and on the subject matter in question. If the issue is government searching of private homes, then the discussion turns to judicial procedures, rules of evidence, and expectations of privacy. If the subject is junk mail, we must consider policies about collection and use of personal information as well as any First Amendment rights of the mailer. If the subject is abortion, a different set of rights and interests arises.

Jeffrey Rosen, a professor of law at George Washington University Law School in Washington, D.C., offers a new perspective on privacy. His book, The Unwanted Gaze, takes its title from Jewish law that recognizes unwanted watching as an offense against privacy and dignity.

Rosen's approach to privacy comes from his interest in sexual harassment law and policy. He begins his inquiry with the investigations into and lawsuits over former President Clinton's sexual activities.

In reviewing the law in this area, Rosen sees privacy erosions as the result of Supreme Court decisions, such as Warren v. Hayden (382 U.S. 294 (1967).) He tracks the change in case law as the courts abandoned the longstanding rule limiting searches to the fruits of a crime and permitted searches for mere evidence. Protections for private papers and diaries evaporated as the courts expanded police officers' ability to search for evidence of white-collar crime. These rulings set the stage for inquiries into Clinton's sex life and Monica Lewinsky's book purchases.

Rosen traces the effects of searches and evidence rules as they affect both the home and the workplace. The Internet is blurring the distinction between home and office, as hard disks and e-mail help to move business and personal information back and forth between the two. Protections that might have been available in one place can evaporate as the lines between home and office disappear and as the search for evidence in sexual harassment cases expands.

Rosen's core argument is that privacy protects us from being misdefined and judged out of context in a world with a short attention span. People need space and time so they can build intimate relationships with others and reveal their true selves. In the sexual harassment arena, where a casual joke or physical contact can result in a lawsuit, the lack of context for judgments can result in intrusive searches for evidence to support the original allegation.

Lawmakers intended sexual harassment laws to protect against the loss of privacy and dignity, but the prosecution of offenses produces some of the evils that the laws were meant to avoid. In response, Rosen offers a variety of prescriptions. He calls for more balance between the intrusiveness of a search and the severity of the crime being investigated. He suggests that privacy tort law is better suited than sexual harassment law to distinguish between trivial and serious workplace harassment activities. He wants better protections for electronic mail. These are all thoughtful ideas.

Of course, litigation other than sexual harassment cases may threaten privacy as well. It may only be a matter of time, for example, before divorce lawyers routinely subpoena a spouse's records of supermarket purchases and Internet usage. Unfortunately, even a broad solution to privacy in a litigation context is not likely to accomplish much in a world filled with third-party record keepers, Internet tracking devices, and increasing commercial trafficking in personal information.

Rosen supplements his sexual harassment analysis with a closing chapter on privacy in cyberspace. Here, extending his privacy analysis proves less useful. In litigation, people may indeed object to being judged based on a stray comment, e-mail, or gesture. If we accept Rosen's analysis that people are afraid of being judged out of context, how does that apply to the Internet?

Marketers, police, insurers, employers, Internet companies, and other data gatherers and data users would probably be happy to accept Rosen's "out-of-context" standard. They will gladly judge people in context, so please provide them with tax returns, medical records, and employment histories to supplement the Internet browsing and transaction data they already collect, often surreptitiously. This would enable more sophisticated individual decisions for targeted marketing, criminal investigations, hiring, and other purposes. However, I doubt that people would be any happier if detailed personal profiles resulted in more contextual judgments.

If there is a major shortcoming in Rosen's analysis, it is his failure to discuss fair information practices. In the last 25 years or so, fair information practices have formed the basis for nearly every information privacy law passed anywhere around the world. The basic principles include openness, access and correction procedures, collection limitations, data quality, use and disclosure limitations, security, and accountability. Fair information practices offer another slice of the privacy pie and one that is especially important on the Internet.

So read Rosen's book for its thoughtful, in-depth, and well-written analysis of sexual harassment law and policy. Just don't expect to find much about privacy that will be useful in other contexts. This last sentence is more a comment on the complexity of privacy in the modern world than a criticism of Rosen's book.

Robert Gellman is a privacy and information policy consultant in Washington, D.C.