Benefits of viewing the right to privacy as a property right

There are many approaches to protecting privacy, but many of them run into conflicts, either with existing protections (perhaps especially the First Amendment) or with those who are suspicious of government regulation. But privacy rights do not necessarily need to be protected in a novel new form as a new right  —  one could instead leverage existing theories of property to do it.

Privacy as secrecy and privacy as autonomy

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).

Constitutionalizing the sanctity of the mails

Anuj C. Desai explains that the extension of the Fourth Amendment to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.

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