Database nation: the upside of "zero privacy"

Reason, June, 2004 by Declan McCullagh

Not content with existing rules, privacy activists have been pressing for more regulations targeting U.S. businesses. Their recent successes include the 1999 Financial Services Modernization Act, better known as Gramm-Leach-Bliley, which regulates the data collection practices of financial services firms. The law has resulted in millions of disclosure statements mailed to consumers, who routinely ignore them. Then there's the Health Insurance Portability and Accountability Act of 1996, which regulates medical care providers. Credit bureaus are covered by the Fair Credit Reporting Act.

More efficient and less burdensome are the state laws known as privacy torts. Those punish snoops who pry into someone else's private affairs, anyone who publicly discloses embarrassing private facts, and publicity that shows someone in a false light. Jim Harper, a former Capitol Hill staffer who runs the advocacy site Privacilla.org, says left-leaning privacy advocates have willfully ignored state privacy torts when arguing for more-intrusive regulations. "Privacy advocates and others have helped to foster the impression that there is no law protecting Americans," Harper says. "This is a violation of the trust that many have placed with them. Substantial criticisms of the privacy torts can be made, but they should be made directly, rather than by telling the press, the public, and public officials that no privacy-protecting law exists in the United States."

In addition to ignoring existing protections, privacy advocates usually do not acknowledge the downside to impeding the flow of information. As Klein, the Santa Clara economist, observes, "There is a collision between privacy and social accountability mechanism's generally. You see this real clearly in social accountability mechanisms like the press, courtroom, or gossip. There the violations of privacy are so much worse than in credit reporting. They're more invasive, less reliable, less discreet. The thing is, people don't appreciate the social accountability aspect of things like credit reporting."

The privacy torts usually are said to date back to an influential Harvard Law Review article written in 1890 by Samuel Warren and future Supreme Court Justice Louis Brandeis, titled "The Right to Privacy." They complained that journalists were being too aggressive and nosy: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life.... For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer."

Permission to Speak Freely

What's shocking to modern eyes is the degree to which Warren and Brandeis wanted to muzzle the press, in a way that today would be viewed as an unacceptable violation of the First Amendment. Warren was miffed to find details of his personal life described in the society pages of the Boston newspapers--the 19th-century equivalent of The National Enquirer or the New Fork Post's Page Six column. He and Brandeis complained: "The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers."