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The problem of privacy today is no longer—if it ever was—a distinctly legal problem. On the contrary, the way we think about privacy as legal scholars and as advocates of legal reform is unlikely to help us to address the more intractable and important political problems that today surround the "right to be left alone." To be sure, it is important to look at the ways in which Fourth Amendment law, employment law, and medical regulations, for example, increasingly authorize deep intrusions into our privacy. It is a great contribution of The Unwanted Gaze, Professor Rosen's extremely interesting and provocative book, that it brings together so many legal domains and forces us to think about their convergence. But if we want to know what is really going on with privacy today, we have to step back from our legal analysis and ask what it is in our society, in our culture—including our legal culture—that is driving these developments. In short, some realism is in order.
We should start by admitting certain uncomfortable facts. For example, we might profitably begin by acknowledging the breathtaking disjunction in our society between public norms and private norms. Take pornography. Millions of people, apparently, buy or look at pornography on the Internet every month, but we consider it tremendously embarrassing to admit this sort of thing in public. If the fact that you have purchased pornography becomes known to the public, it becomes evidence of the sort that can be used to humiliate or to derail your judicial nomination. Or again, millions of people have affairs, but in public such conduct is piously and ostentatiously condemned. If a politician is revealed to be having an affair, it can jeopardize his political career or lead to a Title VII action. Now, in a society like this, we must expect invasions of privacy. The incentives to violate privacy are too large. The desire to see the fakery and hypocrisy exposed is too great. We want to see that other public figures are doing the things that we know everyone else is doing. So long as American society persists in its breathtaking contradiction on this point—its puritanism in public and its libertarianism in private—there will continue to be invasions of privacy, despite the best efforts of legal scholars and social reformists to protect privacy rights.
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