The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.  —  Jacob G. Hornberger, “Liberal Delusions about Freedom“

He notes, too, the lack of regulatory agencies like the EPA and OSHA, and the right for everyone “to pursue an occupation or trade without seeking the permission of the government.”

The first, and simplest response to this, of course, is “who is ‘everyone’”? African-Americans were mostly enslaved until after the Civil War — were they free “to pursue an occupation or trade”? Did the Jim Crow laws of the late nineteenth-century South provide extra liberty for those former slaves?

Women could not vote and were — at various times, more or less — the property of their husbands. Were they “free”? (See David Boas, “Up from Slavery,” for more on this.) Thus, any nineteenth-century libertarian “utopia” is immediately undermined by the lack of freedom for so many.

But beyond this simplistic and obvious critique lies a deeper reality: Americans in the nineteenth century did not live without rules, regulations, and laws, and did not rely strictly on private contract and personal responsibility to conduct business or to handle social relations.

William J. Novak, in The People’s Welfare: Law and Regulation in Nineteenth-Century America, writes:

[It] was a public society in ways hard to imagine after the invention of twentieth-century privacy. Its governance was predicated on the elemental assumption that public interest was superior to private interest. Government and society were not created to protect preexisting private rights, but to further the welfare of the whole people and community.[2]

I have previously written, for example, about the extensive use of the state police power (which has little to do with modern “police”) to impose coercive quarantine requirements in colonial America:

Quarantine … was state-sponsored. It would be applied to incoming ships if smallpox was suspected, but there was no articulated provision for allowing any particular to leave quarantine early. The concept was to protect the public as a whole, not to preserve individual liberties.  —  Kristopher Nelson, “Smallpox inoculation and quarantine in colonial America.”

Novak lists the variety of New York laws passed between 1781 and 1801, all focused on regulating life in the young state. Regulations focused on “lotteries; hawkers and peddlers; the firing of guns; usury; … rents and leases; … counselors, attorneys, and solicitors; … strong liquors; … debtors and creditors; poor relief” and much more.[3] This was not Hornberger’s nineteenth century, free of “welfare, economic regulations, licensure laws, [and] drug laws.”[4]

Again under the aegis of “police power”, Novak notes, “railroads were ordered to reconstruct bridges for the public welfare … and private dwellings were summarily destroyed when found inimical to the public health or safety” — and without compensation to the owners.[5]

Still, this was different than modern regulation in a key sense: it was local and state-based, not federal and nationwide. The reach of an individual law was typically only as far as the city, county, or state line. But they were small, localized invasions, not national ones. And as the federal reach grew, so the importance of the federal Constitution and its protections grew too.

The failure of this local jurisdictional model (which is not equivalent to the “small government” call of modern conservatives) came with the explosion of interstate commerce towards the end of the nineteenth century, when corporations (led by railroads) grew beyond the jurisdictional reach of any individual locality or state. Thus, by the late nineteenth century, robber barons set their own rules, and monopolies grew more powerful than governments.

The coalescing of economic — and thus effective political — power in the hands of a few monopolists set the state for the twentieth-century growth of the modern, federal, nationwide regulatory and administrative state that libertarians rail against.

The big twentieth-century shift was not from an unregulated life to a regulated one, but rather from thousands of local rules that differed across the country to concentrated, interstate rules that applied everywhere — all in response to problems that themselves crossed state lines and jurisdictions.

The nineteenth century was different than the twentieth, but it was not a libertarian utopia of liberty and freedom from rules and regulations — those were everywhere, and could easily be more invasive (laws regulating morals, like forced Sunday closers of business are a good example) than anything the twentieth century brought us.

"Cornwall School House Nº 3 (1830)" by Flickr user Don Shall. CC BY-NC-ND 2.0.

In the twentieth century, the general move in regards to Fourth Amendment jurisprudence — one prong of privacy — has been away from a focus on property, and towards a view that focuses on people instead. (See, e.g., The Fourth Amendment: from property to people.) This move gave us warrant requirements for wiretaps even when a physical trespass had not occurred, for example, because it protected people’s “reasonable expectations of privacy.” But as I noted in a previous article, an alternative approach to creating an entirely new right would be to extend property rights to cover information or personal data, rather as copyright, patents, trademarks, and other forms of intellectual property extended physical rules into the realm of the intangible.

While there are undoubtedly benefits to this, there are limitations as well. Pamela Samuelson, in “Privacy As Intellectual Property,” discusses several of them:

First, the infrastructure necessary for enabling a privacy market to flourish is not insubstantial, and would likely require government oversight anyway, especially given the disparity between individuals and data companies (1136-37).

Second is the problem Samuelson characterizes as “free alienability”: normally, once sold, the buyer can resell a product to a third party. But this is likely to be a problem with privacy, since individuals may well be comfortable selling to one company but not to another. Limiting alienability undermines a core part of a property system. (1137-38, 1145)

Third, it is unclear if a property market is really the most efficient way to allocate resources: “What is scarce is information privacy, not personal data,” but Samuelson argues that it is personal data that is being bought and sold. The goal of the market, then, unlike most others, is to limit availability, not increase it. (1138-39) One might counter by re-conceive of the market as one where privacy is what is bought and sold, but I’m not sure this fixes the market issue.

Fourth, but relatedly, the market for intellectual property exists because of a bargain: the law grants temporary monopoly rights (patents, copyrights) to encourage creation and to benefit the public as a result. Everyone benefits from the system. Without it, creators may not have sufficient incentive to invest in, for example, research and development in the face of potential free riders who might undercut them without investing themselves. In the case of privacy rights, though, there is no similar incentive: “Property rights are not needed to bring them [personal data] into being, nor to achieve widespread distribution of them.” In short, what incentives does creating property rights in personal data create? (1140-41)

Additionally, if a core reason that copyright has always been compatible with the First Amendment is that it is a property right, then perhaps a way out of the conflict between privacy and freedom of speech and the press is to conceive of privacy in the same way — as a property right. Certainly it is already on its way there, as the “right of publicity” in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.

What follows are three approaches the outline some of the benefits of doing exactly this.

Dissolving the Inkblot: Privacy as Property Right

Unsurprisingly, this is an approach libertarian thinkers have already explored. In a 1993 report for the Cato Institute, Sheldon Richman argues for a vision of privacy “that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.” Richman grounds his vision of the right to privacy as a property right embedded in the Constitution:

That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment.

He additionally argues that viewing privacy as property is supported by older case law as well:

[I]n Boyd v. United States (1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and “apply to all invasions on the part of government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”

Richman argues that “propertarian privacy” provides a consistent philosophical and moral grounding for property rights that protects privacy without giving judges too much leeway:  ”To determine whether one has a right of privacy with respect to some act, a judge need only ask what the property rights are.” As a result, contraceptive use is protected through his right to privacy because “each party owns himself or herself. … The same is true … for persons who engage in consensual homosexual sodomy.” Child abuse — even in one’s own home — is not protected “because the child is a self-owner.” Abortion is generally protected because “the fetus comes into existence inside the body of a self-owner.” On the other hand, employers may ban smoking — even in an employee’s home — without violating their right to privacy because the “prospective employee can turn down the job.”

In regards to data privacy legislation, Richmond’s approach would generally not protect privacy unless contractual obligations were violated (this might be seen as protecting confidentiality):

A private firm compiles a computer data base on consumers in order to rent it to direct marketers. Privacy violation? Not if the information was originally provided freely by the consumers (or otherwise lawfully obtained) and all contractual restrictions are observed. But if information was given confidentially, divulgence should be actionable. To be sure, data can be misappropriated, stolen by computer hackers, or used in ways that violate contractual obligations. That is why there are criminal and civil courts.

The Property Rights Origins of Privacy Rights

In The Property Rights Origins of Privacy Rights, Mary Cholpecki explores the historical connections between property and privacy. She points to two English cases as examples of this. First, in Yovatt v. Winyard (1820), what I might call an early trade-secrets case, the court “extended property rights protections to cover personal secrets,” namely, secret formulas for medicines used by a competitor. Cholpecki writes:

Yovatt brings to light the interesting and important fact that “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’ were all wrapped together, in Yovatt’s time, under the principle of ‘property.’” It was only later that these concepts were separated.

She then discusses Prince Albert v. Strange, a case from 1849 in which Strange is prohibited from selling copies of etchings he had catalogued for Prince Albert:

According to one commentator, the most significant aspect of this case and its underlying philosophy is that it rested on a right of privacy, which the court considered a type of property right. In fact, it appears that until 1890, no English court recognized the right to privacy independent of property rights.

Cholpecki blames Samuel Warren and Louis Brandeis’ 1890 law review article for “divorcing privacy from its historical and intellectual partner, property rights.” Because of this, she argues, in subsequent cases the courts have “muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution.”

She sees hope in the 1977 case of Moore v. City of East Cleveland, where a plurality of justices united in the ruling, some of the basis of a right to privacy and some on the basis of property rights:

The Moore case illustrates the interconnectedness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake. … The most enduring protection for both rights is to view each as indispensable to the other.

Privacy As Intellectual Property?

In “Privacy As Intellectual Property?,” Pamela Samuelson explores the potential benefits and pitfalls of adopting a property-based approach to privacy protections.

First, she writes, viewing data about oneself as private property matches an intuition many of us already have. Since people already have the legal right to exclude people from access (journals locked in a desk drawer, papers stored at home in a file cabinet, etc.), “they may have a sense that they have a property right in the data as well as a legal right to restrict access to it” (1130). Data protection laws reinforce this intuitive sense.

This intuitive sense of property persists even though ownership of data is not the core legal framework in American law for dealing with privacy: “Indeed, the traditional view in American law is that information as such cannot be owned by any person” (1131). Although property rights are involved with Fourth Amendment protections, it is not a property right in the information per se, but rather a property right against trespass. The Fifth Amendment (against self-incrimination) protects a liberty interest in a kind of privacy right, but it is not a property right. If a doctor reveals confidential medical information to a newspaper, a patient’s rights “would arise under contract or privacy law, not from the existence of any property rights in this information” (1131).

Samuelson suggests that granting individuals property rights in their own data might force companies to internalize the costs of privacy — if individuals retain property rights over their own information, even if gathered without their intervention, the companies would need to compensate them (and get permission) for the use by buying the rights, or forgo using the personal data. It would also have the side benefit of potentially increasing the quality of data collected, since individuals and companies would each have an incentive to make sure data is accurate (1133).

Perhaps most importantly, taking a property rights approach would allow market forces and market efficiencies handle privacy concerns, without neglecting the particular desires of individual people, and without extensive (and potentially expensive) government regulations (1135-36).

Conclusions

Both Cholpecki and Richmond write from a libertarian perspective, and both believe that connecting the right to privacy with property rights will helps unify conservative and liberal positions into one that can have positive outcomes for everyone. Samuelson approaches the issue from a critical perspective, but outlines many of the important benefits that a “privacy as property” approach might give — and notes that, especially as many American today dislike government-run anything, a system of privacy rights that leverages and extends existing property rules and regulations would likely achieve significant support.

"Property of the Hess Estate" by Flickr user Jason Eppink. CC BY-NC-SA 2.0.

In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:

• Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.
• There were some who noted, at the least, a prior lack of recognition of the potential conflict, as in this Columbia Law Review note from 1913 on “Freedom of the Press and the Injunction.”

The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Hart points out that the earliest (1839) case — Brandreth v. Lance, from New York — ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:

There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.

(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See New York Times v. U.S., from 1971.)

Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy” (636).

In 1890, when Warren and Brandeis’ published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways “freedom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech — both were granted the same level of protection. The nineteenth century juries Thomas Cooley’s position on the issue was generally considered the most persuasive:

The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)

Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a

“public interest” or “public character” exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)

In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.

In their twenty-eight page piece, Brandeis and Warren chastised the journalists o f their day, particularly photojournalists, for prying into people’s private lives in search oqawdry and alluring “news,” and then made a cogent plea for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy. They got what they wanted — and more. (Bratman 624)

Much of their argument focused on limiting the public dissemination of private details of a person’s life, a goal that many find to conflict with First Amendment protections of speech and the press. But Warren and Brandeis saw the right to privacy as articulating an existing principle that had already been applied in many other contexts without constitutional problems: protections of one’s home, prohibitions of the publication of one’s private papers, and prohibitions against slander and libel.

Warren and Brandeis began their article by discussing the well-settled protections afforded by the common law to both people and property. The argued that the law had responded to “social, political, and economic changes” by expanding what it protected, such that the law now protected not just against battery, but the threat of battery (assault), as well as assaults on reputation (slander and libel) and even intangible “products of the mind,” like copyright and goodwill (Bratman 630).

The starting point of their critique of existing protections is the press:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade. … To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. (Warren and Brandeis 196)

Warren and Brandeis proceed to reason that privacy deserves protection through analogy to existing law. Thus, the rights to “intellectual and artistic property” were “instances and applications of a general right to privacy.” In the case of copyright, for example, what is protected is not the quality of the writing or its artistic value: the “existence of the right [does not] depend upon the nature or value of the thought or emotion … [as] the same protection is accorded to a casual letter or an entry in a diary.” Thus, just because a photograph of me does not have artistic value does not mean it should not be protected, since its protection arises from being me, not from the effort invested by the photographer nor from its potential status as an important commentary on life. Even if I send a letter to someone else, they do not have the write to publish it without my consent. The underlying goal is to allow an individual to control the dissemination of what is, fundamentally, theirs. But it is not a property right in the traditional sense, and is not about physical possession or trespass:

The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality (205).

And the invasion of privacy, they continue, is like the “injuries sustained … by an attack upon reputation … or a violation of honor.” In each case the injury is non-physical, but real, and similar injuries are already punishable by law. In short, “existing law affords a principle which may be invoked to protect the privacy of the individual” (206).

"Silos" by Sean Kelly. CC BY-NC-SA 2.0.

The push for “privacy” that demands an ability to allow us to restrict who sees what — enabled, for example, by new tools in Facebook and Google+ — also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?

The Marketplace of Ideas

Core to many American arguments on behalf of the value to a liberal democracy (in the old sense of liberal) of the freedom to speak is the concept of a “marketplace of ideas,” articulated by both Thomas Jefferson and, perhaps most persuasively, by John Stuart Mill in On Liberty. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one’s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.

Republic.com and the Problem of Silos

In 2002, prolific author Cass Sunstein (in Republic.com, then again in Republic.com 2.0 in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, also limit the beneficial unifying effect that shared viewpoints provided.

Free Speech and Privacy

This concern is different, though possibly related, to that expressed by Eugene Volokh in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.

In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, and my own exposure to, the ideas of others. But in both cases, the marketplace is undermined.

But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill — and Volokh — argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls) — but that doesn’t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.

Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is our own individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.

Education

So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to force people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them — without rejecting the new and unusual out of hand — is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.

But I’m open to other ideas, so if you have any, please share!

Related articles

• Thinking about privacy and the First Amendment (inpropriapersona.com)
• The Echo Chamber Revisited (On the Media, npr.org)
• The Filter Bubble (amazon.com)

Daniel J. Solove

We should conceptualize privacy by focusing on the specific types of disruption and the specific activities disrupted rather than looking for the common denominator that links all of them. … Instead of construction an understanding of privacy from the top down by first seeking to elucidate an overarching conception of privacy, we should develop our understanding from a bottom-up examination of the problems based on analogical reasoning. (76)

He takes a common-law jurist’s approach to analyzing a problem, one enshrined in the legal requirement that American courts must deal above all with specific “cases and controversies,” not general theories or philosophical ideas. From the specific facts and harms one can then reason by way of analogy to larger concepts, deriving rules that can be applied to current and future situations. In short, his is a classic American approach to legal reasoning. But it’s classic for a reason: it works.

The Six

To facilitate his analysis, Solove likes to use “classifications” and “taxonomies.” He thus begins by dividing privacy into six types (which he notes “often overlap”). These six are not so much normative or suggested analytic categories as they are ones commonly used in privacy analysis:

1. the right to be let alone — Samuel Warren and Louis Brandeis’ famous formulation of the right to privacy;
2. limited access to the self — the ability to shield oneself from unwanted access by others;
3. secrecy — the concealment of certain matters from others;
4. control over personal information — the ability to exercise control over information about oneself;
5. personhood — the protection of one’s personality, individuality, and dignity; and
6. intimacy — control over, or limited access to, one’s intimate relationships or aspects of life. (13)

1. The Right to Be Let Alone

This deeply influential category comes from Samuel Warren and Louis Brandeis’ 1890 law review article, “The Right to Privacy,” and “views privacy as a type of immunity or seclusion” (18). Warren and Brandeis were responding to the growth of an increasingly invasive and fast-moving press by seeking to demonstrate how traditional common-law torts could be rationally extended to cover this new situation, without introducing any radically new concepts.

Though it seems to emphasize noninterference, it actually often consists “of a claim for state interference in the form of legal protection against other individuals” (18). In many respects, especially as articulated to deal with the situation of invasive journalism, it runs into potential First Amendment conflicts that require, at the very least, balancing.

2. Limited Access to the Self

The point of this view of privacy — closely related to the previous — is to allow “every man to keep his affairs to himself” and ”recognizes the individual’s desire for concealment and for being apart from others,” but it “is not equivalent to solitude [nor] of withdrawal from other individuals” (18). Conceptually, one flaw with this view is that it provides little guidance “as to the degree of access necessary to constitute a privacy violation” (20). It also does not clearly indicate who decides: is it about me deciding what access others have to my self? Or is there a sort of absolute or universal standard that can be brought into play?

3. Secrecy

Judge Richard Posner called this “concealment of information,” or the “right [of an individual] to conceal discreditable facts about himself” (21). Solove describes secrecy “as a subset of limited access to the self,” but in only one dimension: “the concealment of personal facts” (22). According to Solove, this conception “underpins the constitutional right to information privacy, an offshoot of … cases such as Griswold v. Connecticut and Roe v. Wade” (22). It is also the aspect of privacy I identify most firmly with a clear constitutional right: the Fourth Amendment right to be free from “unreasonable searches and seizures.”

Legally, a privacy-as-secrecy approach often means that once a fact leaks, “it can no longer remain private” (22). Thus, Fourth Amendment jurisprudence ”holds that matters that lack complete secrecy are not private” (22). This, garbage receives no protection because it is “knowingly exposed to the public” since it is “readily accessible” (22). Surveillance from aircraft does not implicate the Fourth Amendment either, since “the surveillance was conducted from a public vantage point” (22).

But such characterizations of privacy as secrecy misses out on a desire for confidentiality: “sharing the information with a select group of trusted people” (23). Protecting confidentiality — which I, picking up on Solove’s work, identify as a 19th-century concern — is a critical form of privacy for many people, especially in the medical context. Thus, understanding privacy as secrecy alone is too restrictive and too limited.

4. Control over Personal Information

According to Solove, a Clinton-era task force on privacy defined it as follows:

an individual’s claim to control the terms under which personal information — information identifiable to the individual — is acquired, disclosed, and used (24).

This is also the conception that healthcare laws related to privacy (like HIPPA) use. But again, this conception is overly narrow, since excludes non-informational aspects of privacy, “such as the right to make certain fundamental decisions about one’s body, reproduction, or rearing of one’s children” (25). It also generally fails to define what “control” means, and usually fails to effectively define the scope of what is protected (25-26).

Another, related approach to control over personal information makes information into property. This Lockean approach is “the backbone of intellectual-property law,” which itself derives much of its justification from the “romantic-author” notion of individual authorial (or inventive) creation: “one gains a property right in something when it emanates from one’s self” (26). The tort of appropriation, and the connected right of publicity, “protects people against others’ using their image or likeness for commercial gain.

But this conception also has problems, too. Personal information “is both an expression of the self and a set of facts — a historical record of one’s behavior” (27). Denying journalists the right to present those facts implicates the First Amendment, among other issues. Thus, truth is a defense to defamation, which itself is tort related to privacy.

Additionally, personal information is often formed through relationships (see confidentiality, above, too), and not by a single individual’s “self.” Thus, one person recounting their own story may implicate the story of someone else — should they then be restricted from doing so because it infringes on the other person’s privacy?

5. Personhood

The conception here is to protect “the integrity of personality,” and “often is used in conjunction” with other theories (30). Solove describes this as the theory underlying Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade. It involves “choices central to personal dignity and autonomy” (31). I tend to agree with those that identify this right as more connected to liberty and autonomy than to privacy, but others (like Judith DeCew) suggest that there is an “intuitive notion of privacy invoked in the constitutional privacy cases” (31). In any case, I find “personhood” to be too vague to be useful, and I also find that thinking of it in terms of autonomy is more revealing than conceptualizing it as privacy.

6. Intimacy

This perspective connects privacy with personal human relationships as well as “individual self-creation” (34). It can be difficult to define exactly what is “intimate,” except in terms of what “individuals want to reveal only to a few other people” or similar “in-practice” definitions (35). It does help to unify certain conceptions of privacy with autonomy, though: “abortion is a private decisions because it is ‘an intimate one’” (36).

But again, this definitions tends to be too broad in scope. It is in many respects not much more useful than the term “privacy” itself (36). At the same time, it is overly limiting as a general theory because it is overly focused on interpersonal relationships alone.

So Now What?

Solove contends that the above theoretical conceptions “fail on their own terms” and “never achieve the goal of finding the common denominator” (38). So what should we do, then? His proposal is to dispense with “top-down” philosophy and to instead focus on the problems we face in four dimensions: method, generality, variability, and focus.

His method is pluralistic and draws on Ludwig Wittgenstein’s family resemblances: “privacy is not one thing, but a cluster of many distinct yet related things,” Solove writes (40). By generality, he means that he will pick a useful level of generality, one that is contextual and practical, not abstractly philosophical (40-41). He also acknowledges the variability of privacy and its historical and cultural contingency. He does not seek to provide a firmly fixed foundation for privacy, but does feel “it can still have sufficient stability while accommodating variability” (41). Finally, he limits his focus on privacy to privacy problems. Again, he seeks to avoid the abstract and philosophical and to stay with the particular and specific (41).

Solove’s approach may not appeal to philosophers, but it has the advantage (and, perhaps, disadvantage) of being practical for lawyers and judges to deal with. I approve of his practical goals, and I think the methods he uses can be usefully extended to historical cases as well as contemporary ones.

"Visible downgrading" by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy” — as in “the right to privacy“ — can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

"Paparazzi" by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences — or even the trespasses of journalists in private land — but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone — the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

"Completely Tapped" by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy” — the “right to be let alone” — as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information — and certainly not for photos taken in public places — but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws — which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment — might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.

By Karsten Schmidt

In “Thinking about privacy and the First Amendment,” I discussed Eugene Volokh‘s critique of privacy laws in relation to  Samuel D. Warren and Louis D. Brandeis’s 1890 law review arti­cle, “The Right to Privacy.” In “Cyberspace and Privacy: A New Legal Paradigm?,” Volokh argues that “the right to information privacy — my right to control your communication of personally identifiable information about me — is a right to have the government stop you from speaking about me.”

In ”Reconciling Data Privacy and the First Amendment,” Neil Richards takes issue with Volokh’s arguments. Richards instead argues that, most importantly, privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”

Scope

Richards advocates that courts should first consider whether a privacy rule even regulates what falls within the scope of the First Amendment. To explain “scope,” Richards points out that many normal criminal laws punish “speech,” but fall outside the scope of the First Amendment: fraud, criminal threats, conspiracies, and solicitation of criminal acts, for example. Additional non-criminal laws constrain speech “in the context of securities, antitrust, labor organizing, copyrights, trademarks, sexual harassment … and vast amounts of evidence and tort law.” These too are considered outside the scope of the First Amendment. Why should privacy laws be any different?

Richards proposes an approach to treating scope that draws on concepts used in other Constitutional jurisprudence. He suggests using “rational basis” review for legal rules involving the commercial trade in customer data, but using higher levels of scrutiny for “privacy rules that restrict speech.” Disclosure of “newsworthy facts” would warrant strict scrutiny, while lesser-protected speech (telemarketing, photography) would receive “intermediate scrutiny under the commercial speech doctrine.”

Categories of Information Processing

To better analyze and target rules for different parts of information processing in the context of potentially private data, Richards proposes four different stages, only two of which potentially fall within the scope of the First Amendment at all:

1. rules governing the collection of information,
2. rules governing the use of such information,
3. rules governing the disclosure of information,
4. regulation of direct marketing.

Stages 1 and 2 can be safely regulated without bringing the rules within the scope of the First Amendment, while stage 3 can be regulated under commercial speech rules. Stage 4 clearly falls within the First Amendment, but current doctrine already permits extensive regulation of such speech.

Conclusion

In the end, then, Richards argues that “when we subject both data privacy regulations and the First Amendment to careful scrutiny, they can be reconciled without sacrificing either.” Although Volokh’s critique of privacy laws as violations of the First Amendment is rhetorically powerful, I find Richards’ arguments more compelling, as well as more reconcilable with positive societal goals. This last point is perhaps not enough on which to base a legal argument, but I appreciate legal arguments that support such ends in a rational and articulate manner.