Ever since Samuel Warren and Louis Brandeis published
The Right to Privacy in the 1890 Harvard Law Review, advocates for protecting
privacy have referred to it as a "right." Whether privacy actually is a
"right," or whether it might be something else, are important questions.
There are many different kinds of rights, but
one thing can be said of all of them. All rights are legal protections of one kind
or another. People accept government in order to protect their rights from
outsiders and each other. The U.S. Constitution’s Bill of Rights protects the
American people from various intrusions into their lives by government.
Fundamental rights are important things, but not all important things are
fundamental rights. A fundamental right to privacy does not quite fit with
the classical idea of rights. The right to liberty found in the Declaration of
Independence, for example, leaves a clean slate as to what people will do with their
liberty. The First Amendment right to free speech allows people to say almost anything
— or nothing at all, thankfully. And the Fifth Amendment’s right to property aims
at allowing people to keep what they own once they have earned or created it.
Rights create a vacuum in which people can act however they choose.
For there to be a "right" to privacy, then, there must be
a vacuum in which privacy is unprotected, but in which privacy can be protected
by people who value it. Non-protection of privacy has to be the default if
we are to treat privacy as a right. Otherwise, privacy is an entitlement
— a thing that government bestows on us by virtue of our status. In the
better view, privacy is the result of choices made in the exercise of some
Warren and Brandeis said that people can give up their
privacy by publishing information about themselves. The corollary is that
people can protect their privacy by safeguarding information about themselves.
The legal right Warren and Brandeis must have been talking about — the
vacuum, which people can fill or leave unfilled — is whether or not to
reveal personal information. This is a product of personal autonomy.
Privacy is actually a value that is protected by the right to control one’s personal
information. In general, people use their right to property in their persons
— controlling their actions — to protect personal information
consistent with their senses of privacy. This is how privacy fits into a
scheme of fundamental rights. Privacy results from the exercise of a property
right in personal information.
An example can illustrate how something as important as
privacy is not necessarily a fundamental right: Everyone agrees that individuals
should be free to develop and follow their own morality as long as they do not
harm others. They may decide for themselves whether a higher power exists,
whether bad acts have consequences in the afterlife or a future life, what
days are holy, whether to congregate with others, whether to sing, or to
pray, or to remain silent. These, one could argue, reflect a "right" to morality.
As important as morality is, however, there is no legal
right to it. A person’s morality is a value that is developed in the shelter
given by legal rights like the right to free speech, the right to free
exercise of religion, the right to associate with others, and the right
to own property. Privacy is the same kind of thing. It is a value, the
development of which is sheltered by a legal right to property in personal
Step Into Privacy: Finding a Free Market Perspective in the Constitution
by Kent Lassman, Citizens for a Sound Economy (March 17, 2000)
Property, Cyberspace by David Post, American Lawyer, "Plugging In" (November 1997)