Regulating Privacy: A Poison Pill for the Information Age

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Regulating Information Privacy: A Poison Pill for the Information Age The September/October 2000 issue of the Fraser Institute's newsletter, The Canadian Student Review includes two valuable articles on privacy. The Fraser Institute is Canada's leading market-oriented think tank and has published policy studies on a wide variety of economic topics. Both articles are available in the online version of the newsletter on the Fraser Institute web site. Here is an excerpt from the second article, follow link at the bottom for the full version: Regulating Information Privacy: A Poison Pill for the Information Economy By Michael D. Mallinger, BA Economics, George Mason University The debate over whether governments should regulate information privacy involves contrasting views on how privacy should be defined. Those who favour regulation believe that an individual's control over specific information about her individuality is a fundamental human right that governments must protect at all costs. Skeptics of this view believe that such information is a private commodity that individuals can trade to other economic actors for goods and services. These groups have conflicting views on how traditional philosophy and the principles of political economy should be interpreted when dealing with privacy issues. Contemporary philosophers assert that a narrow definition of privacy applies only to an individual's personal information and to the access that other individuals have to this information. They claim that a broad definition measures privacy as the social and legal space in which an individual is able to develop her sense of autonomy (Schoeman, p. 13). In addition, they assert that some social norms restrict the access that other people have to an individual in her private life. However, other norms place constraints on this privacy and inhibit an individual's freedoms of choice and expression (Schoeman, p. 15). They characterize the privacy debate the following way: Some would limit privacy to informational or physical access to a person, whereas others regard privacy as encompassing nearly all dimensions of private, personal life. The association of the sort of privacy norms that enable personal expression within dimensions of personal life seems to legitimize the more inclusive interpretations of the scope of privacy... After all, both sorts of privacy norms serve to restrict access to a person. Discretion in self-expression is central to and constitutive of the sort of norm this kind of privacy structures. (Schoeman, pp. 18-19.) Philosophers use this view of privacy to claim that individuals are more vulnerable to social coercion by other individuals than to legal coercion at the hands of the state (Schoeman, p. 22). They attempt to use this logic to legitimatize government efforts to combat social coercion. In his landmark essay On Liberty, John Stuart Mill offered a commentary on the pressures people face to conform to social norms: Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own.(Mill, p.63.) Philosophers interpret Mill's logic to mean that government protection of the broader construction of privacy is necessary to maintain the independent associations that individuals form to obtain freedom from social control (Schoeman, p. 36.) In the United States, these principles were introduced into legal theory in 1890 when Warren and Brandeis argued that the law should recognize "a right to an inviolate personality that would protect thoughts, emotions, and sensations... whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression" (McWhirter and Bible, p. 75). They explained that four limitations to privacy include whether an individual consented to an invasion of privacy, whether actual publication of personal information can be proven, whether the communication in question was privileged, and whether the individuals subjected to the invasion are public figures (McWhirter and Bible, p. 76). In 1902, the state of New York became the first state to enact these principles as legislation when it banned the "unauthorized use of the name or picture of any person for the purposes of trade" (McWhirter and Bible, p. 78). Other states quickly followed suit by adopting similar legislation. Interpretations of the various constitutional, statutory, or common-law protections of privacy rights vary from state to state...