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So Who’s Watching?

As our happy, prosperous Republic grows ever more accustomed to reveling in the exhibitionism of CBS’s “survivors,” our reality is tending in quite the opposite direction: It is we who are increasingly on exhibit to complete strangers.

So says journalist and George Washington Law School Professor Jeffrey Rosen in his new book, The Unwanted Gaze: The Destruction of Privacy in America. Every credit card purchase, every Web visit, and—unless you use powerful encryption software—every e-mail secretly contributes to an electronic archive from which any number of dubious biographical insights can be culled by marketing analysts, company snoops, and prosecutors, writes Rosen.

So, you’re the type of person who shops at J. Crew? Hmmm. And you bought the latest Judith Krantz novel from Amazon? Aha! And then you visited three different extreme bondage sites?! Ooops. (Yeah, sure, you were just curious.)

Your curiosity is now part of the historical record. And all it takes is a subpoena—or a charge of sexual harassment—for this vast stream of random, digitally stored information to become fodder for a public that is able to see only the devil in the supposedly telling detail. Rosen amply documents such cases in The Unwanted Gaze. The injustices committed on a cast of Prufrocks desperately protesting, “That is not what I meant, at all” are outrageous.

How could this come to pass in the land of the free?

“I think the real reason that privacy eroded over the course of the 20th century,” says the 36-year-old legal affairs correspondent for the New Republic, “is that it became impossible to reconcile robust protection for private papers with a functioning regulatory state.” In other words, the courts came to realize that increasingly complex tax and environmental laws couldn’t be properly enforced if people simply refused to turn papers over to the state.

A disastrously circular Supreme Court judgment in 1967, which pegged constitutional protections for privacy to the subjective expectations society has of reasonable surveillance, also had a malign impact. “As technology became more intrusive, people’s subjective expectations diminished,” says Rosen, “and so there was a corresponding diminution in legal protection.” Add to this an amazingly vague legal definition of sexual harassment that gives employers an incentive to monitor their employees’ e-mail as a first strike against potential lawsuits and you’ve created the conditions for an intrusive society where nothing is held secret. Employers don’t even have to let employees know what they’re monitoring. After all, who today has the subjective expectation that e-mail is private?

You do? Ooops.—Trevor Butterworth

Jeffrey Rosen discusses The Unwanted Gaze: The Destruction of Privacy in America at the Rockville, Md., Barnes & Noble, 12089 Rockville Pike, at 7:30 p.m. on July 13.