The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure

Abstract:     
This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.

Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between public and private concerns. Traditional approaches include deferring to the media, distinguishing between public and private figures, and looking to the nature of the information disclosed. However, these approaches are flawed. Instead, we should focus on the relationships in which information is transferred and the uses to which information is put. The propriety of disclosures depends upon their purpose, not merely on the type of information disclosed. The Article analogizes to the law of evidence, in which certain information is admissible for some purposes but not others and then examines the values of free speech and argues that privacy often furthers the same ends, demonstrating that free speech should not always prevail in the balance.

Next, the Article tackles the judgment and trust critique, which views personal information as essential for making judgments about whether to trust people with whom one associates. Although personal information can help facilitate judgments about other people, the Article contends that these judgments are often made quickly and out of context. In short, more information does not necessarily lead to more accurate judgments. The Article also contends that privacy protects against certain rational judgments that society may want to prohibit (such as employment decisions based on genetic information). The Article then responds to commentators who argue that gossip is valuable because it helps educate us about human nature and argues that the value of concealing one's past can, in many circumstances, outweigh the benefits of disclosure.

Keywords: privacy, First Amendment, free speech, tort, disclosure, private facts, information, gossip, public concern, evidence, media, press

JEL Classifications: K10, K13, K19

Accepted Paper Series