NCPA - National Center for Policy Analysis

How To Protect Both Privacy And Free Speech

April 27, 2001

Information technology has made society much more transparent, raising concerns about how personal, financial and medical information about individuals might be used by employers, marketers, health insurers and others. But carefully crafted laws that promote clear disclosure (and enforcement) of privacy agreements can help people protect themselves without sacrificing the freedom of speech of those who collect data.

Both the law and the habits of consumers and businesses are evolving due to the possibilities opened by new information technologies:

  • Until recently, all that protected us from excessive breach of privacy by third parties was the cost of gathering information.
  • However, the Internet has not only made more information of every kind more accessible, but reduced the cost of collecting information.
  • And while individuals do not have a property right to information about themselves, they do have the right to enforce contracts that restrict the use of information they provide to others.

Thus privacy and the desirable uses of collected data can be balanced by finding ways to lower the cost of bargaining between the affected parties. And contract law can be a mechanism for agreeing to and enforcing privacy policies. This could include, for example, disclosure on what is being collected and how it will be used; agreements on the confidentially of the information collected; and requirements to post policies on how to view information and correct inaccuracies.

Source: Devon Herrick (research manager, NCPA), "Personal Privacy in a Transparent Society," Brief Analysis No. 359, April 27, 2001, National Center for Policy Analysis.

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