Excerpted from: Jerry Kang, Information Privacy In Cyberspace
Transactions, 50 Stanford Law Review 1193, 1212-20 (April 1998)
* * * *
Now that we know
what information privacy is, we should probe what purpose it serves. [FN61]
Avoiding embarrassment. In any given culture, disclosures of certain
behaviors, actions, or fates will embarrass the individual‑‑even
when the behavior, action, or fate is neither blameworthy nor stigmatized. Take urination for example. There is nothing wrong with urination; all
humans do it. The fact that someone
urinates is not going to be used against her. However, a visual disclosure of
that behavior‑‑for instance, being caught on videotape through a
hidden camera‑‑would cause intense embarrassment for most
Americans. Another example is minor
hemorrhoids. Assume that this fact will
not be used against the person in any way.
The individual will not pay more for health insurance, will not drop in
social standing, and will not lose her job or friends. Nevertheless, the broad disclosure of this
fact would embarrass many, perhaps most, people.
That these examples are culturally
contingent makes them no less real. [FN62]
In other words, the fact that different cultures may react differently
to such disclosures does not deny that, for each culture, there are some zones
of behavior, actions, or fates the disclosure of which‑‑in and of
itself‑‑will cause discomfort or embarrassment. [FN63] One value of information privacy, then, is
to avoid the simple pain of embarrassment.
Constructing intimacy. An individual's capacity to disclose
personal information selectively also supports her ability to modulate
intimacy. Charles Fried has argued this case most prominently. [FN64] By virtue of information privacy, one can
selectively regulate the outflow of personal information to others. By reducing this flow to a trickle, one can
construct "aloofness, removal, and reserve," [FN65] and maintain
substantial social distance.
Conversely, *1213 one can
release a more telling flow of personal information, [FN66] which invites and
affirms intimacy. [FN67]
According to Fried, information privacy is
necessary to create social relationships that go beyond the basic respect due
all human beings. [FN68] Something in addition to basic human respect must
exist between two individuals to transform their relationship into one of
trust, friendship, or love. That
additional something is intimacy, which is partly created by the release of
secrets‑‑the selective disclosure of personal information.
[FN69] Without information privacy, we
would be less able to disclose on a case‑by‑case basis the
nonpublic facets of our personality.
Thus, we would lack the "moral capital" [FN70] needed to
construct intimacy. [FN71]
I concur with Jeffrey Reiman's critique of
Fried that intimacy is more related to the sharing of experiences than the
sharing of secrets. [FN72] This does not mean that information privacy has
nothing to do with modulating intimate relationships. I believe that intimacy, at least for adults in current American
culture, involves the display of certain behaviors unseen in public areas, such
as playfulness, childlikeness, and certain types of physical touching‑‑which
take root and flower best in an information preserve, away from the harsh light
of publicity. [FN73] If we were under
observation, we would not be able to display caring to other individuals as
freely, spontaneously, or completely as we might otherwise. [FN74] This, in turn, would hinder the construction
of deep social relationships.
*1214 Averting
misuse. Yet another value of privacy is
that it protects against improper uses of personal information. Personal information can be misused in two
ways. First, it can derail an otherwise
fair process that distributes benefits and burdens. Many social goods‑‑such as jobs, offices,
remuneration, and respect‑‑as well as social bads‑‑such
as unfriendliness, disrespect, and imprisonment‑‑are granted or
denied on the basis of data about ourselves.
If these social goods and bads are allocated based on personal data of
poor quality, unfairness may result: Garbage in, garbage out. [FN75] Further,
high quality information in one context may be low quality information in
another because, as Kenneth Karst explains, "the evaluator and the
recipient of his statement may not share the same standards for reducing a
complex set of facts to evaluative inferences or even the same language."
[FN76] Worse, such decisions may be
difficult to discover and correct, [FN77] especially when they are generated
through automated processes. Computers,
with their air of objectivity and infallibility, resist dispute. [FN78] One way to check against such information
misuse is to give the individual greater control over the flow of personal
information. An individual with such
control will take preventative *1215
measures, for instance, by keeping irrelevant personal data away from the
decisionmaker. [FN79]
Second, information can be misused by making
us vulnerable to unlawful acts and ungenerous practices. After all, personal information is what the
spying business calls "intelligence," and such
"intelligence" helps shift the balance of power [FN80] in favor of
the party who wields it. [FN81] To take
a simple example, knowledge of our home phone number and address makes us more
vulnerable to harassers [FN82] and stalkers. [FN83] Personal information can also make us vulnerable, for instance,
to identity theft. [FN84] Besides outright illegal acts, another's
control of our personal information can make us susceptible to a whole range of
ungenerous practices. It could subject us to influence that crosses the line
between persuasion and undue influence.
Sophisticated advertisers, for example, do not merely track consumer
demand; they manufacture *1216 it
outright. [FN85] Detailed knowledge of
who we are and what we consume makes the job of preference fabrication that
much easier. [FN86] More disturbingly,
personal information can be misused by making us vulnerable to prejudice or
unwarranted disesteem. An example is
the information that one is gay, which could be evidenced by accessing certain
Internet discussion groups or making certain cyberspace purchases. [FN87] For those not generally "out," the
inability to control this information creates tremendous social and
psychological vulnerability.
Individual vulnerability has social
consequences. It chills individuals
from engaging in unpopular or out‑of‑the‑mainstream
behavior. While uniform obedience to
criminal and tort laws may deserve praise, not criticism, excessive inhibition‑‑not
only of illegal activity but also of legal, but unpopular, activity [FN88]‑‑can
corrode private experimentation, deliberation, and reflection. [FN89] The end result may be bland, unoriginal
thinking [FN90] or excessive *1217
conformity to unwarranted social norms. [FN91]
Worse, the self‑repression of activity and communication could
undermine the self‑critical capacities of a polity. [FN92]
This is why totalitarian regimes have maligned a desire for privacy as
deviant, in part to sap an individual's ability to question the status quo and
to experiment with alternate conceptions of the good life. [FN93]
2. Countervalues.
It would be one‑sided to discuss only
the values supporting information privacy when prominent countervalues‑‑values
against individual control over personal information‑‑also exist.
Commerce.
By requiring the individual's consent before personal data are
processed, privacy applies friction to the flow of information. This friction, the argument goes, hurts
commerce; better information leads to better markets. When this argument is
made, two stories are often told‑‑one about junk mail, the other
about consumer credit. The junk mail
story starts by explaining that junk mail is only "junk" because it
was sent to the wrong person. If the
direct marketing industry had better intelligence about personal interests and
preferences‑‑for example, by being able to examine an individual's*1218 history of consumption‑‑people
would receive less "junk."
Because information privacy makes this more difficult, it increases the
search costs of matching interested buyers with interested sellers. In short, more privacy means more junk. The consumer credit story starts by noting
that a freer flow of personal information can decrease the costs of consumer
credit by helping creditors avoid bad credit risks. Additional personal information allows greater discrimination
among individuals according to whatever characteristic is relevant to a
particular transaction. [FN94] This, in
turn, decreases the cost of such transactions either generally, or, at the
least, for those individuals who possess a favorable set of characteristics.
[FN95]
The commerce argument, as thus stated,
presumes that privacy necessarily entails information blockage. But this is not so. If individuals will truly benefit by
releasing their personal data, e.g., by getting less junk or cheaper credit,
they will rationally choose to do so. [FN96]
Information privacy does not mandate informational quarantine; it merely
requires that the individual exercise control within reasonable constraints over
whether, and what type of, quarantine should exist. Accordingly, these arguments do not demonstrate that the
individual should be deprived of information privacy. At most, they suggest that individuals should be open to
information processing in exchange for commercial benefit and that society
should make such exchanges feasible. [FN97]
Truthfulness. Information privacy allows one to have thoughts, beliefs,
conditions, and behaviors without the knowledge of others, thereby making it
easier to have public personae distinct from private ones. This differentiation between public and
private visages need not be used for good, such as self‑determination and
deliberative politics. Instead, the
argument goes, it will be used to deceive and defraud. Individuals will not only keep poor quality
information away from decisionmakers, they will also conceal high quality, but
legitimately detrimental, information.
The cover of privacy might encourage individuals not only to engage in
activity unjustifiably *1219
stigmatized but also justifiably stigmatized.
Worse, they may be hypocrites, publicly espousing norms they privately
abandon. [FN98] The parade‑of‑horribles
conjures easily: the unrehabilitated child molester volunteering for day care;
the domestically violent tyrant passing as winsome celebrity; the sexually
promiscuous person, infected with herpes, claiming to be disease free; the
reckless driver swearing falsely to be accident free. Perhaps Richard Posner
was right to recast invasions of privacy as self‑defense against
deception. [FN99]
It would be facile to deny that information
privacy can cloak our darker sides and aid misrepresentation. Equally facile, however, is the inference
that information privacy is thus inexorably the handmaiden of deception.
Privacy is not valuable only to those with something discreditable to hide.
Individuals do not always seek to conceal or control personal information to
exploit others in some acquisitive, tortious, or immoral way. [FN100] Put in other terms, secrecy‑‑the
intentional concealment of personal information‑‑ does not always
amount to lying. [FN101] The hallowed
example is the secret ballot. [FN102]
Moreover, it is not inherently wrong for
individuals to have differing private and public masks. [FN103] Consider how differently we act, and rightly
so, between work and home. Only an
unsophisticated psychology assumes one true, essential personality, with all
other personae spurned as deceitful masks.
In fact, all our masks, all our roles, constitute integral facets of our
personalities, none of which is necessarily privileged, true, or authentic.
[FN104] This is not to say that no core
personality exists. But this core
personality is a weighted composite of the multiple personalities we experience
and cultivate. [*1220 FN105] The ability to maintain divergent public and
private personae creates the elbowroom necessary to resist social and political
homogeneity. [FN106]
In sum, information privacy does not
necessarily promote deception and fraud.
It can do so only if both the nature of the relationship between the
individual and the information user, and the ethical or legal duties of
disclosure inherent to that relationship, command an openness that information
privacy prevents. What is important is
that in most cyberspace transactions, which I describe below, far more
information is collected than any self‑ defense "need to know"
principle could justify.
* * *
(RETURN TO COURSE HOMEPAGE AND SYLLABUS)
_______________________________________________________________
footnotes
accompanying excerpts:
[FN61]. The analysis here of the relevant values
supporting privacy is not complete. I
discuss the value of dignity separately in Part III.A.2 below. Other values on
which I do not dwell are listed in Kim Lane Scheppele, Legal Secrets: Equality and
Efficiency in the Common Law 181‑83 (1988) (arguing that privacy is also
necessary for sanity and role maintenance).
[FN62]. See Irwin Altman, Privacy Regulations:
Culturally Universal or Culturally Specific?, 33 J. Soc. Issues 66, 67
(1977). For interesting discussions of
how different cultures maintain privacy, see, for example, Altman, supra note
23, at 14 (discussing the Tuareg veil worn almost continually over the mouth),
and Robert F. Murphy, Social Distance and the Veil, in Philosophical Dimensions
of Privacy, supra note 22, at 34, 42‑44 (same).
[FN63]. See Altman, supra note 23, at 42
("[I]t might be said that mechanisms for separating the self and non‑self‑‑that
is, for regulating interpersonal boundaries to achieve a desired level of
privacy‑‑are universal and present in all societies.").
[FN64]. See Fried, supra note 41. See generally James Rachels, Why Privacy Is
Important, in Philosophical Dimensions of Privacy, supra note 22, at 290
(offering similar arguments).
[FN65]. Murphy, supra note 62, at 34.
[FN66]. Take, for example, the choice to reveal
selectively that one is gay or lesbian.
See Susan J. Becker, The Immorality of Publicly Outing Private People,
73 Or. L. Rev. 160, 206 (1994) ("Many gay people find terrifying the
option of taking one giant leap to universally disclose this intimate detail of
their lives, while the possibility of taking a series of small steps towards
that goal is palatable.").
[FN67]. See Murphy, supra note 62, at 36
("This imposition of distance on the parameters of the role set does more
than make other roles possible, for it promotes the solidarity of the
relationship itself. In this sense,
many role sets are effective secret societies.").
[FN68]. See Fried, supra note 41, at 477.
[FN69]. See id. at 484‑85.
[FN70]. See id. at 484.
[FN71]. Information privacy may have a more
complicated relationship with intimacy depending upon where two people are in
their relationship. In the beginning of
a relationship, a lack of information privacy might actually promote the creation
of intimacy. To take a common example,
a person is often more inclined to go on a first date with someone if she knows
something about him. I think Fried's
response would be that, once that relationship starts, information privacy is
instrumental in furthering intimacy.
[FN72]. See Jeffrey H. Reiman, Privacy, Intimacy,
and Personhood, in Philosophical Dimensions of Privacy, supra note 22, at 300,
305.
[FN73]. Cf. Robert S. Gerstein, Intimacy and
Privacy, in Philosophical Dimensions of Privacy, supra note 22, at 265, 268
(noting that observation kills the spontaneity necessary for intimacy); see
also text accompanying notes 274‑294 infra (discussing the relationship between surveillance and dignity).
[FN74]. See Richard A. Wasserstrom, Privacy: Some
Arguments and Assumptions, in Philosophical Dimensions of Privacy, supra note
22, at 317, 324 (noting that the lack of privacy is harmful because "the
kind of spontaneity and openness that is essential to [people] disappears with
the presence of an observer").
[FN75]. Poor quality includes: inaccurate
information; technically accurate but misleading information, because it is
incomplete or stale; and irrelevant information, because it is accurate and not‑misleading
but inappropriately considered. See IITF
Principles, supra note 19, at 6 (stating that quality of personal information
depends on accuracy, timeliness, completeness, and relevance). Errors in databases are not exceptional. See, e.g., Kenneth C. Laudon, Dossier
Society: Value Choices in the Design of National Information Systems 139 (1986)
(stating that, over a one year period, 74.3% of records disseminated by the
Federal Bureau of Investigation ("FBI") Identification Division had
"some significant quality problems"); id. at 140‑42 (noting
that 11.2% of the warrants for persons listed on the FBI Wanted Persons list
were no longer valid, 6.6% were inaccurate, and 7.0% dealt with offenses
sufficiently trivial that extradition and prosecution were unlikely).
[FN76]. Kenneth L. Karst, "The Files": Legal
Controls over the Accuracy and Accessibility of Stored Personal Data, 31 Law
& Contemp. Probs. 342, 356 (1966); see also id. at 357 (arguing that the
risk of inaccuracy is greatest when the file is read by an outsider unfamiliar
with the system and unaware that the language or the standards of the evaluator
differ from his own); Spiros Simitis, Reviewing Privacy in an Information
Society, 135 U. Pa. L. Rev. 707, 718 (1987) (arguing that the loss of data's
context distorts their content).
[FN77]. See Karst, supra note 76, at 358.
[FN78]. See Burnham, supra note 55, at 151 ("[E]ven highly educated people are
prepared to grant the computer far more power than it actually
possesses."); HEW Report, supra note 20, at xx ("[T]he net effect of computerization
is that it is becoming much easier for recordkeeping systems to affect people
than for people to affect recordkeeping systems."); Laudon, supra note 75,
at 4 (contending that decisions about us are made less on "personal face‑to‑face
contact" and more on information about us, our "data image");
Simitis, supra note 76, at 718 (noting that once a decision has been made by
the computer, the burden of proof is shifted onto the individual to prove that
the computer is wrong).
[FN79]. One such example may be the borrower's race
in a loan application. See Gandy, supra
note 18, at 200‑01 (discussing racially discriminatory lending); Oscar H.
Gandy, Jr., Legitimate Business Interest: No End in Sight? An Inquiry into the
Status of Privacy in Cyberspace, 1996 U. Chi. Legal F. 77, 79 (same); see also
Peter P. Swire, The Persistent Problem of Lending Discrimination: A Law and
Economics Analysis, 73 Tex. L. Rev. 787, 814‑30 (1995) (explaining why
markets may not stop racial discrimination in lending).
[FN80]. I use "power" here to mean
nothing more complicated than "an actual capacity to do or prevent
something." Stephen R. Munzer, A
Theory of Property 178 (1990).
[FN81]. For further discussion of how conflicts
over information flow are conflicts over power, see Bok, supra note 34, at
19. Bok states:
Conflicts
over secrecy‑‑between state and citizen ... or parent and child, or
in journalism or business or law‑‑are conflicts over power: the
power that comes through controlling the flow of information. To be able to hold back some information
about oneself or to channel it and thus influence how one is seen by others
gives power; so does the capacity to penetrate similar defenses and strategies
when used by others.
Id. (citation omitted).
[FN82]. For a disturbing story of privacy and
harassment, see Nina Bernstein, Personal Files via Computer Offer Money and
Pose Threat, N.Y. Times, June 12, 1997, at A1 (describing a prisoner who
processed a woman's consumer survey on behalf of Metromail Corporation and
later sent her a sexually threatening letter).
[FN83]. Actress Rebecca Schaffer was murdered by a
crazed fan who had located her home through Department of Motor Vehicles
records. See Regan, supra note 18, at
102‑03 (discussing the types of problems that led to the introduction of
the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. §§
2721‑2725, which was later incorporated into the Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. No. 103‑322, 108 Stat. 1796
(codified as amended in scattered sections of 18 U.S.C.)).
[FN84]. In identity theft, an impostor obtains
enough personal information to impersonate his victim in financial
transactions. Typically, the impostor
applies for a credit card under the victim's name and then charges up the card,
leaving the victim to deal with the impostor's debts. Often, the victim's credit is ruined and may take years to
repair. See Board of Governors of the
Fed. Reserve Sys., Report to the Congress Concerning the Availability of
Consumer Identifying Information and Financial Fraud 18‑20 (1997)
[hereinafter Federal Reserve Report] (on file with the Stanford Law Review)
(noting the financial effects of fraud on society as a whole); Privacy Rights
Clearinghouse, Second Annual Report 28‑32 (1995) (suggesting that
government agencies are providing inadequate protection of individual privacy
rights).
[FN85]. The argument that advertising, in its
multifarious forms, can alter demand is uncontroversial. See Daniel Hays Lowenstein, Commercial
Speech and the First Amendment: "Too Much Puff": Persuasion,
Paternalism, and Commercial Speech, 56 U. Cin. L. Rev. 1205, 1215‑17
(1988) (making a qualified case that advertising increases smoking); cf.
Glickman v. Wileman Bros. & Elliott, Inc., 117 S. Ct. 2130, 2141 (1997)
("Generic advertising is intended to stimulate consumer demand for an
agricultural product in a regulated market.
That purpose is legitimate and consistent with the regulatory goals of
the overall statutory scheme.").
[FN86]. See Miller, supra note 17, at 43
(expressing concern over cybernetic manipulation of consumers and voters).
[FN87]. See, e.g., Philip Shenon, Navy Case
Combines Gay Rights and On‑ Line Privacy, N.Y. Times, Jan. 17, 1998, at
A6 (describing how the Navy accessed America Online subscription information to
obtain the true identity of an on‑line personality named "Tim"
who had claimed to be both gay and a Navy employee).
[FN88]. Consider the chilling effect caused by
military surveillance of domestic political groups, including the American
Civil Liberties Union, the Southern Christian Leadership Conference, and the
National Association for the Advancement of Colored People. See Miller, supra note 17, at 40 (explaining
that Army intelligence maintained files on these and other activist political
organizations). Although the state
enjoys a virtual monopoly on lawful coercive force, I believe that a
substantially similar effect can be achieved through private sector
surveillance. As John Stuart Mill
warned:
[The]
means of tyrannizing are not restricted to the acts which [society] may do by
the hands of its political functionaries.
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 ....
John Stuart Mill, On Liberty 4‑5 (Hacket
Publishing 1978).
[FN89]. See Stanley I. Benn, Privacy, Freedom, and Respect
for Persons, in Philosophical Dimensions of Privacy, supra note 22, at 223, 241
("We act differently if we believe we are being observed. If we can never be sure whether or not we
are being watched and listened to, all our actions will be altered and our very
character will change." (quoting Hubert Humphrey)); Paul M. Schwartz,
Privacy and Participation: Personal Information and Public Sector Regulation in
the United States, 80 Iowa L. Rev. 553, 560 (1995) (noting how data processing
"creates a potential for suppressing a capacity for free choice: the more
that is known about an individual, the easier it is to force his
obedience").
[FN90]. Oliver Wendell Holmes lamented that
"the very minute a thought is threatened with publicity it seems to shrink
toward mediocrity." Bloustein,
supra note 54, at 255 (quoting O.W. Holmes, The Poet at the Breakfast‑Table
344 (1872)).
[FN91]. Norms are nonlegal obligations obeyed out
of a combination of internalized duty and fear of externally imposed
sanction. Obviously, not all social
norms are warranted. Specifically,
Richard McAdams has demonstrated that if social norms arise from individuals'
desire for esteem, many social norms will be economically inefficient. See Richard H. McAdams, The Origin,
Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412‑16
(1997). Information privacy can resist such norms in two ways. First, it can make norm violations harder to
detect, thereby making norms harder to enforce. Second, it may prevent the initial construction of the norm by
interfering with the public recognition of group consensus, which is a
prerequisite for norm construction. See
id. at 425‑26. McAdams notes two
qualifications. First, because privacy
resists both efficient and inefficient norms, any judgment on whether privacy
produces a net increase in efficiency depends on, among other things, the
relative proportion of efficient versus inefficient norms. Second, in certain cases, privacy may
perpetuate, not resist, a norm by decreasing communicative exchange about a
consensus in the past that has since disappeared. See id. at 426‑27.
[FN92]. See Gavison, supra note 34, at 455 (arguing
that privacy fosters moral autonomy, which is necessary for democracy). The Supreme Court recognized as much in
NAACP v. Alabama: "This Court has recognized the vital relationship
between freedom to associate and privacy in one's associations....
Inviolability of privacy in group association may in many circumstances be
indispensable to preservation of freedom of association, particularly where a
group espouses dissident beliefs."
357 U.S. 449, 462 (1958).
[FN93]. See Westin, supra note 41, at 23 (observing
that totalitarian regimes tarnish privacy as immoral and antisocial);
Bloustein, supra note 54, at 226‑27 ("Unlike the totalitarian
ideology, democratic political philosophy favors autonomous or private
associations because they constitute independent sources of power and
initiative which act to forestall undue accumulation of state power.").
[FN94]. In credit transactions, these
characteristics include the individual's previous repayment history. In other transactions, such as health
insurance, such characteristics might include the individual's genetic makeup,
medical history, and lifestyle risks.
For a thoughtful analysis of medical privacy, see generally Paul M.
Schwartz, Privacy and the Economics of Personal Health Care Information, 76
Tex. L. Rev. 1 (1997).
[FN95]. See George J. Stigler, An Introduction to
Privacy in Economics and Politics, 9 J. Legal Stud. 623, 628‑33 (1980)
(arguing that the ability to classify more accurately will lead to greater
economic efficiency).
[FN96]. See Mary J. Culnan, Self‑Regulation
on the Electronic Frontier: Implications for Public Policy, in NTIA Report,
supra note 11, at text accompanying note 7 (no pagination in electronic copy).
[FN97]. This requires attention not only to what is
legally permissible, but also to what is economically feasible. Here I am concerned about transaction costs
preventing efficient processing of personal information. For a sustained analysis of privacy in
economic terms, see text accompanying notes 229‑304 infra.
[FN98]. Consider the ingenious reporter who
investigated Supreme Court nominee Robert Bork's video rental history. The investigation revealed nothing
juicy. But members of Congress‑‑painfully
aware of their own vulnerability‑‑ immediately passed the VPPA,
which proscribes the release of such information. See Video Privacy Protection
Act of 1988, 18 U.S.C. §§ 2710‑2711 (1994); see also S. Rep. No. 100‑599,
at 5 (1988) (citing the Bork incident as impetus for the legislation); Joe
Domanick, Maybe There Is a God: Six Lessons in the Pitfalls of Public
Hypocrisy, Playboy, Aug. 1990, at 110 (discussing the hypocrisy of, inter alia,
Robert Bauman, Jimmy Swaggert, and Jim Bakker).
[FN99]. Posner, supra note 56, at 395.
[FN100]. See Edward J. Bloustein, Privacy Is Dear
at Any Price: A Response to Professor Posner's Economic Theory, 12 Ga. L. Rev.
429, 445 (1978) (discussing a woman giving birth and a man writing love letters
to his wife).
[FN101]. See Bok, supra note 34, at xv (explaining
that lying is prima facie bad, but that secrets are not).
[FN102]. See Sweezy v. New Hampshire, 354 U.S. 234,
250‑51 (1957) (discussing the importance
of freedom of political expression).
Just slightly less hallowed are a jury's secret deliberations. See Clark v. United States, 289 U.S. 1, 13
(1933) ("Freedom of debate might be stifled and independence of thought
checked if jurors were made to feel that their arguments and ballots were to be
freely published to the world.").
[FN103]. See Ferdinand Schoeman, Privacy and
Intimate Information, in Philosophical Dimensions of Privacy, supra note 22, at
403, 408‑09 (arguing that it is important that people maintain different
dimensions of themselves in different contexts).
[FN104]. See, e.g., Margaret Chon, Multidimensional
Lawyering and Professional Responsibility, 43 Syracuse L. Rev. 1137, 1138‑39
(1992) (agreeing in the context of legal ethics).
[FN105]. See Rachels, supra note 64, at 294
(suggesting that the variances in behavior define the relationships, not the
individual). Posner has come around on
this point. See Richard A. Posner,
Overcoming Law 534‑35 (1995) (arguing that one's public self is no less
real than one's private self).
[FN106]. I take no position on privacy's connection
to rehabilitation. Some commentators
argue, however, that information privacy is necessary for an individual to
"remold her identity or reform her character." C. Edwin Baker, Posner's Privacy Mystery and
the Failure of Economic Analysis of Law, 12 Ga. L. Rev. 475, 479 (1978). Without such ability, the past would always
catch up to the present, never allowing us to "overcome the mistakes of
the past." Id. at 480. But see Richard A. Epstein, Privacy,
Property Rights, and Misrepresentations, 12 Ga. L. Rev. 455, 472 (1978)
(criticizing rehabilitation as a justification for privacy).
This
conflict appears starkly in those laws, such as Megan's Law, which require
notification of neighbors when a convicted sex offender moves into a
neighborhood. See, e.g., N.J. Stat.
Ann. §§ 2c:7‑2 to ‑11 (West 1995).
Currently 29 states have such community notification laws. The convicted felon's privacy rights might
have to be sacrificed where the safety of the community, especially its
children, is in jeopardy. For those who
think this notification requirement is excessively harsh or double punishment,
I am persuaded by my colleague Eugene Volokh's pithy retort: "These are
not punishments, they're consequences."
Lori Basheda, "Megan's Law" Challenged by Molester, Orange
County Reg., June 23, 1997, at B1. For
the opposite twist on the trade‑off between privacy and protection of
children, see Largest Database Marketing Firm Sends Phone Numbers, Addresses of
5,000 Families with Kids to TV Reporter Using Name of Child Killer, Bus. Wire,
May 13, 1996, available in LEXIS, News Library, Bwire File (reporting the sale
of phone numbers, addresses, and ages of 5000 children by Metromail to a
reporter using the name "Richard Allen Davis," the person convicted
of murdering 12‑year‑old Polly Klaas).