Deconstructing Privacy: And Putting It Back Together Again

Abstract:     
The growth of the law of privacy has taken chaotic forms. Sometimes claims for privacy work in harmony with classical liberal ideals and on other occasions it works against them. This paper seeks to examine the strength of various claims to privacy within a framework that first asks whether, and if so how, privacy interests may be protected under the framework I defended in Simple Rules for a Complex World (Harvard University Press 1995). The first stage asks the extent to which privacy interests are protected by libertarian rules directed toward the protection of autonomy, property, and voluntary exchange from the use of force and fraud. It then examines how privacy interests can be usefully protected by the relaxation of these rules in ways that work to the long-term advantage of all individuals. It then notes that protecting certain forms of privacy (such as that against eavesdropping) fall within this category while other claims for privacy (such as shielding medical records from employers and insurers) do not. Privacy issues can thus be sorted out by the same conceptual devices used to evaluate traditional common law claims in torts and contracts.

working papers series