The Right To Privacy: Contemporary Reductionists and Their Critics

Abstract:     
The nationwide controversy engendered by the Justice Department’s recent subpoena to Google shows that Americans are not confident in the legal protection afforded their privacy. While some scholars hail the case as an opportunity to advance more privacy legislation, perhaps it is instead time to consider the issue anew. The right to privacy is, after all, of recent vintage. First proposed by Warren and Brandeis in 1890, it did not enjoy legal recognition until 1905. And even then, the protection it has offered has been limited in scope: its implementation has always involved a balancing test in which the judge balances the individual's interest in privacy against whatever “public interest” is said to oppose it. A thoughtful person might easily conclude that, thanks to the right to privacy, Americans enjoy privacy not by right, but by permission. And he might then wonder whether there is any viable alternative.

At the time of the original debate about privacy there were “reductionists” who argued that there should not be a distinct legal right to privacy. They held that the right to privacy derives from other rights – the rights to property, to liberty, or over one’s person – and is therefore superfluous.

Keywords: privacy, rights, permission, legal recognition, legal protection, reductionists, subpeona, Warren, Brandeis, Google

JEL Classification: I00, I28, I20, M00, L00

Accepted Paper Series