The Unwanted Gaze

The Unwanted Gaze

New books dissected over email.
June 6 2000 11:59 AM

The Unwanted Gaze

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Jeff:

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I very much enjoyed your characteristically thoughtful and eloquent book; I agreed with many of your proposals; and most important, I love privacy! Privacy--what a great word. It links to so many warm fuzzies. Private property (OK, not warm for everyone, but warm for me). Private individuals vs. the government. Keeping our parents out of our bedrooms. If the worst happens, at least a private hospital room. Who can be against privacy?

Well all of us are, sometimes. The privacy of my home sounds great until it turns out I might be hiding a dead body in my basement. A witness's privacy is nice until you need the witness's testimony to prove the justice of your case. Privacy of people's personal information is good until the government starts censoring what newspapers write, or letting people bankrupt us for gossiping about them with friends.

Privacy, like other genuinely good things such as liberty or equality, is a valuable concept, but by itself is too vague to resolve concrete questions. It needs a more specific framework that helps define its boundaries.

To your credit, you offer such a framework. "Privacy," you say, and I think it's fair to call this a central theme of the book, "protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge." This is what I'd like to ask you about, because I confess it puzzles and concerns me a bit.

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Here's the puzzlement: Say the government searches your house, reads all your diaries, and subpoenas all your friends. This is a huge invasion of privacy, even though the government will then have thorough knowledge about you, and will be able to judge you accurately and as in-context as possible. So what do misdefinition and judging out of context have to do with invasion of privacy here?

Or consider an example you gave: "People don't want their browsing habits collected in personally identifiable dossiers, because those dossiers can be bought or subpoenaed by employers, ... divorcing spouses, and others who have the ability to affect our lives in profound ways. ... In cyberspace, the possibilities that personal information may be taken out of context continue to increase."

Hmm. My employer has a great deal of knowledge about me. A divorcing spouse would have even more. I don't fear that they'll use information about me out of context; I fear that they'll use it to my detriment. So again, what's the connection here between the loss of privacy and the risk of out of context judgment?

And here's the concern: I'm troubled by the government making laws, especially ones that control not just itself but also newspapers, merchants, or neighbors, based on a fear that extra information will cause people to make "confused" or "misjudg[ing]" decisions.

As you rightly point out, "the right to misjudge one another is a hallmark of citizens in a free society." This is especially so since one person's hasty out-of-context judgment is another's wise and necessary educated guess. "Someone who cheats on an arithmetic test," you approvingly quote, "might not cheat on a spelling test"; but others might think it's nonetheless fair to infer that cheaters will probably keep cheating. An official might think that more information won't actually increase listeners' knowledge in some particular case--but some listeners might disagree. You argue that information about politicians' sex lives unduly distracts the public from the real issues, but part of the public thinks politicians' sexual transgressions are real issues.

To your credit, you seem not to use privacy as a justification for new speech restrictions (though at times I'm not fully sure about your view, especially as to merchants' speech about their customers). But I worry that others might not be so careful. And marrying the immensely appealing term "privacy" to a crusade against "misjudgments," "judgments out of context," and "confusion"--and who can be for any of those?--could then become a recipe for a new legal paternalism aimed at saving us from our supposed cognitive errors.

Am I missing some core link between privacy and prevention of misjudgment? Is there some reason that my concerns about the legal system embarking on an anti-misjudgment, anti-out-of-context-statements, anti-information-confused-for-knowledge campaign are misplaced? Jeff, Declan, what do you think? I await enlightenment.

Eugene

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This week, two writers grill Jeffrey Rosen on whether the Internet is really eroding our privacy. Rosen is the legal affairs editor of the New Republic, an associate professor at the George Washington University Law School, and the author of the The Unwanted Gaze: The Destruction of Privacy in America (click here to buy it). Declan McCullagh is the Washington bureau chief for Wired News and runs the Politech mailing list. Eugene Volokh specializes in free-speech law, cyberspace law, copyright law, and firearms regulation policy at UCLA School of Law, and is the author of "Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You," forthcoming in the Stanford Law Review.