NCPA - National Center for Policy Analysis

Unintended Consequences Of Privacy Laws

August 1, 2000

"Information privacy" laws sound appealing, suggesting they will give us the power to control information about ourselves -- whether the information is genetic, financial or personal. However, one expert argues proposals to protect privacy may have troubling, if unintended, consequences.

When privacy is secured by contract, where one party agrees not to disclose personal information, such protection is legally sound. The difficulty comes when we try to secure these protections in ways other than through contracts, particularly when we try to create new "rights" -- such as the right to privacy regarding information about ourselves. Experts argue that creating new "rights" may have high costs in other areas of "rights" such as free speech.

  • In order to enforce these new rights, government must be given the power to stop communications by others about an individual or the individual's personal information -- giving government greater control over individual communications.
  • However, the First Amendment generally bars government from controlling or interfering with the communication of information.
  • Thus new information privacy laws would require new exceptions to existing free speech rules regarding what speech can be silenced by the government.

The new exceptions required could easily be broad enough to support other restrictions: such as bans on speech of sexual nature, campus speech codes that prescribe politically correct language, and restrictions on online business discussion or consumer complaints.

The adoption of these exceptions in the attractive case of information privacy will create powerful legal precedents for further speech limitations that may be costly to other free speech rights.

Source: Eugene Volokh, "Freedom of Speech, Information Privacy and the Troubling Implications of a Right to Stop People from Speaking About You," 2000, Stanford Law Review.


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