In a non-government context, privacy in the US is governed generally by narrowly defined common law torts plus very specific privacy regulations (COPPA, HIPAA, VPPA for example). Torts are utilitarian constructions—protecting property rights, the public good, etc. As such, privacy torts are more characterized by preventing economic harm through illegal or inappropriate actions (spying, blackmail, etc.) than the pure protection of personal information. If you’ve ever been angry when technology CEOs claim privacy is dead (and get over it!), it might be better to refocus one’s anger on the fact that privacy in a market context was never alive to begin with.

Let’s talk first about what’s protected by torts and why. William Prosser is helpful here. He argues that the legal right to privacy, as advocated by Warren and Brandeis, could be better categorized as lesser torts, and as such, lesser values. By combining these torts into an overbroad definition of privacy, Warren and Brandeis created something potentially destructive of the public good. Instead, Prosser classifies privacy torts into four categories, distinct from any abstract; they are: intrusion into private affairs, public disclosure of embarrassing private facts, placing the plaintiff in a false light, and appropriation of someone’s likeness. [1] These torts require that the individual be in a state of self-enforced seclusion, a state given up in almost every public interaction from going to the grocery store to shopping online.

In other words, privacy torts best protect individuals who have a monetary interest in controlling information (say, a celebrity) and who keep to themselves (say, private island). By regulating only the economic loss of information disclosure or the mental anguish caused by an act of surveillance as opposed to the act of information collection itself, privacy torts provide a kind of absolution for non-invasive surveillance. And in a strange reversal of Constitutional Law, you seem to have a greater right to privacy as a public individual whose information is valuable than as a private individual whose information is marginally interesting. Hooray for the 1%.

From Prosser’s almost reductionist argument for privacy, it’s easy to make a utilitarian or economic case against data protection. Richard Posner argues that a right to privacy allocates property rights in an economically deficient manner.[2] Personal information is most valuable in aggregate to a direct marketer and value-less to any given individual.[3] With overbroad data protection, the market would suffer because of poorly allocated property rights given the substantial bargaining costs with each individual.[4] In addition, individuals already show a “general reticence” to disclosing discrediting information, information that might be valuable to businesses or the public.[5] (Are you cool with wearing that FICO credit score and STD test lanyard to work? No? Why are you interfering with the efficient allocation of property rights, man?) All joking aside, one can see how this line of thought leads to little standard protection of personal information in a non-government context. It also illustrates very simply why there’s a) no initial limit on Internet data collection and b) little to no collective action or market incentive to prevent it. The default is zero.

In the next post in the series, we will examine how Warren and Brandeis influenced rights-based thinking and Constitutional Law.

[1] See William Prosser, “Privacy: A Legal Analysis,” Philosophical Dimensions of Privacy, ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 107. Originally published in California Law Review 48 (1960): 338-423. The reductionist philosophy can also be seen within Judith Jarvis Thompson’s writings. See Judith Jarvis Thompson, “The Right to Privacy,” Philosophical Dimensions of Privacy, ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 286-287. Originally published in Philosophy & Public Affiairs 4 (1975): 295-314.

[2] See Richard A. Posner, “An Economic Theory of Privacy,” in Philosophical Dimensions of Privacy ed. Ferdinand Schoeman (Cambridge: Cambridge University Press, 1984), 332-345. Originally published Richard A. Posner, “An Economic Theory of Privacy,” Regulation, May/June 1978, 19-26. Page numbers refer to the Schoeman anthology. See also Lessig, Code, 159-163. Oddly enough, Lessig too concludes by favoring a market-based approach to personal information, but he argues that all property rights should be vested in the individual. In that way, an individual can have as much or as little privacy as he or she may like, and property rights are used as a means to protecting privacy. I think this is indefensible and will provide a framework for my argument later.

[3] Ibid., 336-337.

[4] Ibid., 336-337.

[5] Ibid., 338.