A Right to Privacy Is No Promise of Privacy

Interesting thinkpiece on privacy and metadata from PJM’s newest contributor, Amy Peikoff. Here’s the crux:

I have suggested that we return to the era of protecting privacy on the basis of our rights to property and contract, as was the case before a famous 1890 law review article written by Warren and Brandeis. In other words, I reject the so-called “right to privacy.” You don’t want someone to see or hear what you’re doing in your home? Lock your doors, close your windows and shut your blinds. You want to keep your financial information private? Well, before the government started compelling the bulk collection and reporting of financial data, something for which can thank the third-party doctrine, you could protect your financial privacy simply by having a confidentiality clause in your contract with your bank.

A distinct “right to privacy” is not only superfluous; it’s immoral, because it tends to displace and undermine our fundamental rights to property and contract. Ironically, because our rights to property and contract enable us to achieve states of privacy, the consequence of recognizing a distinct right to privacy is less privacy protection.


I like this thinking, because it performs an end-run around years of bad law and bad precedent. It also strikes me as much more practical than the Hollywood-type scenario where the hero lawyer argues the perfect case to the Supreme Court, which rises at once and in unison to verbally overturn all the bad precedents while the bad guy lawyer fumes and the orphans and the kittens get all their candy and healthcare just in time for Christmas.

But I digress.

Imagine the bank offering to “put your data in the same vault where we keep your money safe.” That might not play to a lot of people — witness how many willingly surrender their privacy to Google, who then gives up their data or has it lifted by NSA. But I bet other folks like you and me might be willing to pay slightly higher fees for the extra service.

The same, as Amy notes, could apply to your phone company or your ISP. Are their regulatory hurdles? I assume so, but as we’ve seen recently there’s bipartisan support for reining in NSA, and so there might be support for an initiative like this, too. An Underwriters Laboratory-type nonprofit group, unaffiliated with any level of government, could provide the ongoing safety checks. Their costs would be paid by the privacy fees we’d pay to the bank, ISP, search engine, etc.


I’ve rambled on enough now — go read Amy’s whole piece.

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