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The Right to Privacy Is a Threat to Liberty

The New York Times recently reported that in 2006 a German executive at Volkswagen gave a presentation on how the company’s cars could evade emissions tests.  Who was the German executive at the root of a scandal that will cost VW shareholders tens of billions? The New York Times stated that it could not identify him or her because of German privacy laws.

This example nicely illustrates how privacy laws undermine liberty. Their direct harm to liberty is clear. Because of fear of liability in Germany, the New York Times cannot exercise its free speech rights in the United States to name a key executive in a story about one of the most important business scandals of the decade.

The harm to society is clear as well. Executives in companies (and officials in government) are likely to behave better if they fear exposure. Indeed, privacy laws will reduce the number of investigate reporters trying to uncover malfeasance. Newspapers are naturally more interested in running stories where names are attached than stories about faceless executives or bureaucrats, because they are more likely to interest readers.

But the laws also impose more indirect, but pervasive costs to liberty. By reducing the power of private social norms to restrain bad behavior, they make a more intrusive state necessary. The less civil society governs itself by decentralized, informal means, such as by circulating information, the more there will be a need for the heavy handed enforcement mechanisms of a top-down bureaucracy.

Now some might claim that these costs are worth paying, because privacy is such an important human right. I disagree. The right of privacy is really a right to control others—to control what people can say about you—even if they have gotten the information without resort to force, fraud, or in violation of property rights. A right to privacy is a right to present a self-created image to the world, even if the image is variance with facts known by others.  The right to privacy is a right to mislead.

Fortunately, the United States does not have privacy laws like those in the Germany. Indeed, such laws would surely be held to violate the First Amendment.  But even foreign privacy law damages our citizens by making bad behavior with effects in the United States harder to deter.  Congress should thus consider requiring that those who do business in the United States waive their capacity to enforce privacy laws against media here.

Reader Discussion

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on May 01, 2016 at 23:36:19 pm

I think you need to parse this a little more closely. While I agree that information gathered in a non-coercive manner should be able to be freely published, there's more to be considered here.

What has happened is that someone acting in an official capacity for a corporation has requested privacy. This really is unacceptable, IMNSHO, because frankly corporations shouldn't have a right to privacy, nor should those who work for them, when considering their acts on behalf of the corporation.

Kurt

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Kurt
on May 02, 2016 at 01:27:33 am

I think that Professor McGinnis has confused confidentiality and privacy with anonymity. Of course people and corporations are allowed to keep some things private; we allow corporations to protect trade secrets after all. A respect for privacy is one element of a culture of dignity. A person is allowed some measure of latitude in determining what information about himself is nobody's damn business.

Privacy and confidentiality are concerned with what, whereas anonymity is concerned with who. Once the fact of some action that affects the general public is known, the identities of the responsible parties are no longer entitled to anonymity. We publicize the names of those convicted of crimes, and those who declare bankruptcy and who spill pollution into public waterways. It would be absurd for the National Highway Safety Administration to announce "We have found a major automobile manufacturer producing cars with exploding gas tanks. See if you can guess which one."

Anonymity in the setting of known malfeasance serves no legitimate interest, except in arguable circumstances such as that involving an underaged perpetrator, or malfeasance in clandestine services where divulging the identity of a wrongdoer would imperil others. Throwing out privacy with the anonymity bathwater is a step too far.

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z9z99
on May 02, 2016 at 12:13:17 pm

Prof. McGinnis:

OK - so what would you do with disclosing the names of donors to political initiatives.
It may be quite reasonably argued that the disclosure of the names of those contributing to certain (currently) unpopular political /social initiatives is destructive of political liberty.

Isn't this the *chilling effect* about which out leftist friends speak (except, of course, when it comes to those "unpopular" ideas).

And as Z argues, there is no prima facie case of "malfeasance" by virtue of a political donation - Oops, there I go again - obviously in the minds of the leftist looney-toons there is clearly malfeasance going on if one contributes to anything supporting traditioanl mores.

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gabe
on May 02, 2016 at 18:34:28 pm

Since we don't know who made the presentation we don't know the context of it. Maybe originally it was a warning shot about how competitors might use such a strategy/tool. But a more important issue in my mind is that it was just a presentation and if you're going to go after everyone who makes a presentation we are up the creek because that's the direction it will inevitably take. I've been thinking about this issue more and more and I want to know the real economic and environmental impact of the 'ruse'. Maybe, just maybe, the standards were so rigorous that the cost to uphold them was actually greater than the cost of VW's violation.

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Rocky Mountain
on May 02, 2016 at 18:50:32 pm

As technology continues to enter into our everyday lives, privacy continues to decrease. And it will continue to do so for the foreseeable future.

Some of the high end techies my wife works with were brainstorming not too long ago. They wondered if it would be possible to create a paint-on computer. Literally, with a bucket and a brush and a wall. It would be possible, but for now, difficult I'm sure. I suppose that they were considering the possibility of painting a television monitor directly onto the wall.

With technological advancements, the details of that kind of thing could be worked out and implemented. But suppose that such paint-on computers also had tiny little cameras and microphones. You could be watched directly by the paint on your wall. How would you know?

Suppose that you painted the circuits on your wall yourself so you could communicate with family and friends, and you didn't know that your paint-on communication wall could be and was being hacked by the government, or another government, or just some weird neighbor. Is there a reasonable expectation of privacy.

In the workplace there is such a thing as a reasonable expectation of privacy for your personal stuff. This is established in case law. I suggest that these cases derive from a natural right to privacy.

I would like to think that the "declaratory and restrictive" (from the preamble) articles in the Bill of Rights were not a complete list of rights that government could misconstrue or abuse. I would like to think that not only my ability to own private property but my ability to use the toilet without government watching me is also a right.

My wife would like to think that her ability to use the toilet or shower without having to worry about having a man dressed as a woman watching her is a reasonable and rational right.

We haven't yet regressed to the ancient time when we all lived together in lodges and did everything in the open. But some day we may reach that point thanks to the proliferation of technology and the expansion of popular government.

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Scott Amorian
on May 03, 2016 at 09:08:28 am

Scott:

Rather liked that!

In a related issue:

I get a kick out of all those folks who rail against government intrusion on privacy when they willingly provide all sorts of information about themselves, their personal lives, their economic circumstances, etc etc on social media. Is there anything these folks will not *share*?

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gabe
on May 03, 2016 at 14:56:42 pm

Thanks.

I don't think McGinnis is wrong in his theory. He just didn't go into all the pros and cons of all aspects of the issue. This is just a blog post after all. I found his points interesting because he discusses the negative consequences of protecting privacy and I don't normally come across those arguments.

Now if you'll excuse me, I've gotta go pick a new shotgun and a six pack. Tonight, the missuz and I have date. We're gonna sit out on the back porch and take out some of them thar drone thingys that's been flyin' outside our bedroom window. Cheers!

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Scott Amorian

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