Reprinted from LewRockwell.com – Mike Rozeff
An item about surveillance of conversations in buses has again raised my concern about the vanishing of privacy in America. I view this disappearance and transformation of life into a Kafka-esque world as an extremely serious problem. Privacy is absolutely essential to a person, to normal functioning, to personal interactions with others, to social cooperation with others, and to a proper relation between each American and the governments ruling them. Government officials and bureaucrats, in the name of security or policing, are routinely undermining privacy. The tendency of State officials and bureaucrats to extend and expand the powers of State is fully evident in the case of destroying privacy.
One effect of undermining privacy is to suppress free speech. It makes the person afraid or reluctant to speak for fear that at some undetermined future time , his actions or statements will be used against him. They can be misconstrued. They can be taken out of context. He can be forced to defend himself, and that’s costly. He may be subject to a police inquiry or invasion whereby his belongings are seized and his whole life disrupted. The State’s powers turned against a person in this way are enormous.
Privacy is one of those socially-useful and socially-necessary things that we take for granted when it’s there. That’s why we fail to understand it or investigate it. That’s why the law on it and the understanding of it are not up to par.
I am not aware of a libertarian defense of privacy, not that a libertarian or rights-based defense is the only such defense. Actually, there are some libertarian statements on privacy that will do the opposite from defending it because these statements are so weak or even justify invasions of privacy. For example, the platform of the Libertarian Party on personal privacy is very weak. It relies on the Fourth Amendment. We all know or should know that we can’t depend on that because it doesn’t cover all cases. There are huge gray areas not addressed by the Fourth Amendment. The Fourth Amendment is too vague, and the government is busy destroying it with the approval of courts. This is a very weak reed to support a positive case for privacy.
Those who are anti-state anarchists can say that the existence of the State itself is at the root of the government’s privacy intrusions. Get rid of the State and the privacy problem diminishes drastically. This is true, but the State is with us now and it is attacking us on the privacy front. Americans are not in a position to transition to radically different political arrangements at this time. And when it comes to privacy, all too many support the State’s invasions with the specious argument that you shouldn’t mind such invasions if you have done nothing wrong.Therefore, this defense of privacy is not strong enough. It doesn’t explain why privacy is an essential personal and social good. It doesn’t develop a right to privacy cogently.
The same goes for defenses of privacy such as those of Ron Paul. The defense cited is nowhere near as strong as it should be. It begins fairly well, with this: “…weâ€™re blindly marching towards a dark future where the government knows everything about you but you know nothing about the government.” This should be amplified. Why is this a dark future? Why is it bad that the government knows everything about you? Why is it bad that you know nothing about the government? There is no defense here against the popular counter-argument that a well-behaved citizen has nothing to fear from anyone, including the government, knowing everything about you.
Dr. Paul goes on to describe the invasions of privacy and to attribute the worst current excesses to the Patriot Act. This places the necessity for privacy in a legal spotlight. This is not a full defense of privacy. Privacy has to be understood as a psychological necessity, as a social necessity and as a political necessity. Law at best codifies this or guides issues of justice in which privacy is a concern, but law that’s codified also may limit privacy by attempting in a few statutes to cover all possible cases. This may be impossible. Instead, we need to realize that privacy is a general thing with many categories and nuances that is valuable to us broadly.
Here’s a libertarian article that defends against a national ID card. It makes quite a strong argument:
“…the national ID and its corresponding database would form the backbone of a totalitarian surveillance state.
“The card is a gateway to East German-style monitoring of individualsâ€™ personal lives. Every act would be subject to governmental scrutiny. Many aspects of personal liberty have not heretofore been legislated simply because relevant laws would be unenforceable. But if the government were endowed with complete surveillance power, every facet of human life would be opened up to regulation and intrusion.”
This is not a defense that says why privacy is a good and an essential good. It is an argument that invasions of privacy raise the risk of suppressions of liberty. They are a building block of a totalitarian State. Liberty is a social good, but privacy is another social good. Both require understanding and defense, each on its own grounds. To be sure, they also intersect as this writer makes clear, leading to another kind of defense of privacy, which is in order to defend liberty.
Here is a libertarian who recognizes the end of privacy and sees it as a foregone conclusion. His pessimism is total. He offers no defense of privacy at all.
If we look at Mr. Libertarian, Murray Rothbard, I am sorry to say that he offers no defense of privacy, not as a personal and social good in the senses I am attempting to bring out. He writes “…there is no such thing as a right to privacy except the right to protect oneâ€™s property from invasion.” This position has a number of problems. Suppose the police monitor conversations inside your home from the street, or read your e-mails, or tap your cellphone conversations, or eavesdrop as you talk in a plane, train,Â bus, or your car. Are your conversations your property? Yes, you have a right to protect them if you can, but what if you cannot? And should a government or police be empowered to monitor these conversations in the first place? Where is there in this statement a positive defense that we need and must have privacy or we are diminished in our social functioning, or where is it said in this statement that the government can overpower us or turn us into virtual slaves? At least the Fourth and Fifth Amendments, inadequate as they are, made some attempt to address the balance between policing and privacy. They reflected to some extent a legal and social history that had a meaningful core to them. If we attempt to defend privacy solely on the grounds of property rights, we are, I fear, not going to come up with strong enough defenses. The term “right toÂ privacy” carries with it the same potential for a weak defense of privacy. Privacy is more than a rights-based thing. When we speak of a right to privacy, we in fact diminish or mis-characterize the general idea. The term “right to privacy” is a kind of shorthand expression of the need for privacy, but it places privacy needlessly on legal grounds. The origin of privacy is social necessity. Social cooperation and interaction, freely given, depend on it. Speech depends on it. Not being fearful depends on it. Operating as an autonomous person depends on it. No one can operate at all well without feeling that he can take a walk or a drive or say something in privacy, unmonitored by a State agency. To be monitored in all forms of private activities is a form of imprisonment! One may roam, but one is constantly under guard and subject to State intrusions.
It is often said that there is a tradeoff between privacy and security. It is said that to increase security, the State diminishes privacy. This is one idea behind the Patriot Act. It is said that to stop drug money transfers, the monitoring of everyone’s bank transactions is justified. It is said to spot potential terrorists, monitoring conversations is justified. It is said that bodily inspections at transportation checkpoints is justified. Obviously, if every communications and travel means is monitored, privacy vanishes. The premise of these invasions is that security rises as privacy falls, and then the judgment is made by statists that this is worth it. In fact, as invasions of privacy increase, security declines. Every person becomes less secure in his person and property! Security is defined as the state of being free from danger or threat. One threat is assault. How is one made free from assault by being assaulted at an airport? How is one made free from being harassed by being harassed at an airport? How is one made free from the threat of being harassed or charged with a crime by the State by the State’s knowing every move you make, every statement you make, and every financial transaction you make? I say that your security is going DOWN, not up. The State’s increasing invasions of privacy do not enhance security at all. They diminish both privacy and security. The State can fend off terrorists by the ordinary methods of policing if it had a mind to. It doesn’t. It prefers to expand into a totalitarian monster.
Privacy is a necessity. There is a positive case to be made for that. There is also another kind of case. Everyone has many things they want to keep private. Everyone has something to fear from government officials. Anyone can become the subject of an unwarranted case made against them for some legal matter, simply because there are so many stupid laws on the books that most of us know nothing about. Millions upon millions of people break laws that are unjust or needlessly penalize them, if only to survive, smooth out life’s rough spots, lower a tax burden, buy a cigarette in a low-tax state, import something beyond the limit, have sex, drive above the speed limit, roll through a stop sign, or enjoy a drug. Often people fail to report crimes or deal with them in their own home-made ways because that is what their conscience tells them to do. Often people do not want to be enmeshed in legal maneuverings. There are hundreds and thousands of things we want to keep private and below the State’s radar. We all have done and want to do many things that the State has or can turn into a wrong and grab us for or penalize us for. This argument that if you have done nothing wrong, you have nothing to fear, is mythical. It will be found inapplicable to most people. There are laws they know nothing about that they are breaking.
Privacy is in grave danger. We need the strongest possible ideas in defense of privacy.
—Walter Block response via LewRockwell.com
The Austro-libertarian movement in general and the Mises Institute (LewRockwell.com in particular) are greatly in the debt of Michael S. Rozeff. For his many, many, very valuable contributions to the latter, go here. He has also published many important essays on the LRC blog.
However, there is one entry in Michael Rozeff’s LRC blog with which I must take issue. In it, Prof. Rozeff criticizes the views of Murray N. Rothbard on privacy, as follows:
â€œIf we look at Mr. Libertarian, Murray Rothbard, I am sorry to say that he offers no defense of privacy, not as a personal and social good in the senses I am attempting to bring out. He writes “…there is no such thing as a right to privacy except the right to protect oneâ€™s property from invasion.” This position has a number of problems. Suppose the police monitor conversations inside your home from the street, or read your e-mails, or tap your cellphone conversations, or eavesdrop as you talk in a plane, train, bus, or your car. Are your conversations your property? Yes, you have a right to protect them if you can, but what if you cannot? And should a government or police be empowered to monitor these conversations in the first place? Where is there in this statement a positive defense that we need and must have privacy or we are diminished in our social functioning, or where is it said in this statement that the government can overpower us or turn us into virtual slaves? At least the Fourth and Fifth Amendments, inadequate as they are, made some attempt to address the balance between policing and privacy. They reflected to some extent a legal and social history that had a meaningful core to them.
If we attempt to defend privacy solely on the grounds of property rights, we are, I fear, not going to come up with strong enough defenses. The term â€˜right to privacyâ€™ carries with it the same potential for a weak defense of privacy. Privacy is more than a rights-based thing. When we speak of a right to privacy, we in fact diminish or mis-characterize the general idea. The term â€˜right to privacyâ€™ is a kind of shorthand expression of the need for privacy, but it places privacy needlessly on legal grounds. The origin of privacy is social necessity. Social cooperation and interaction, freely given, depend on it. Speech depends on it. Not being fearful depends on it. Operating as an autonomous person depends on it. No one can operate at all well without feeling that he can take a walk or a drive or say something in privacy, unmonitored by a State agency. To be monitored in all forms of private activities is a form of imprisonment! One may roam, but one is constantly under guard and subject to State intrusions.â€
Before I rise to Rothbardâ€™s defense against Rozeffâ€™s criticism, let me make one thing clear: I do not criticize the latter because he dares disagree with the libertarian analysis of Mr. Libertarian. We are not Randians here. Murray was always welcoming of disagreement. For example, when Hans Hoppe came up with his â€œargument from argument,â€ or â€œargumentation ethics,â€ Murray readily and generously acknowledged that this was an improvement over his own natural rights defense of the libertarian philosophy. Indeed, I myself have publicly disagreed with Murray on several issues (voluntary slavery, immigration) and he and I were close friends all the time I knew him. (For my own published critiques of the writings of Rothbard, see here, here, here, here, here, here, here, here, here, here, here, here, here, and here.) So, I do not now pass negative judgment on Rozeff out of any reverence for Rothbard (although I do indeed revere him, despite some disagreements I have had with him); I do so simply because I think Rothbard was correct on privacy, and Rozeff in error on this issue.
Wherein, then, do I think Rozeff goes astray on this issue.
1.Rozeff states: â€œâ€¦ should a government â€¦ be empowered to monitor these conversations in the first place?â€ The answer emanating from Rothbard would be, surely, that no government is justified, therefore, he would support no invasion of privacy rising from that quarter.
2.Rozeff continues: â€œSuppose the (private) police monitor conversations inside your home from the street, or read your e-mails, or tap your cellphone conversations, or eavesdrop as you talk in a plane, train, bus, or your car.â€
But Rothbard, I think, answers this in the material cited above: â€œ…there is no such thing as a right to privacy except the right to protect oneâ€™s property from invasion.â€ But an invasive act is surely one of trespass. So, it all depends upon how the private police monitor conversations, read e-mails, tap cellphone conversations, or eavesdrop. If they do so while or by trespassing on private property, it would be illegitimate; but if they do so without such nefarious activities, then they are entirely justified. In the free or libertarian society, presumably, private firms would compete with each other so as to provide for their customers defenses against anyone else monitoring conversations, reading e-mails, tapping cellphone conversations, or eavesdropping. We would have a technological â€œwar,â€ in effect. The private police would attempt to avail themselves of â€œoffensiveâ€ weapons destroying privacy, while individuals who want to keep their secrets, well, secret, would try adopt â€œdefensiveâ€ modalities in order to curtail such initiatives.
Rozeff asks: â€œAre your conversations your property?â€ Rothbard (and I) say, clearly not. If someone overhears your loud mouthed conversation, you should have no recourse to the law. If you speak quietly, and someone else listens in on you with advanced technological equipment, your only proper option would be to purchase a noise machine, to make life difficult for your eavesdropper. The lover of liberty would wish the best of luck to both sides and/or stay strictly neutral on this issue (presumably, since neither violates rights).
That is an important point. Suppose A sees B doing something that would embarrass the latter. A saw this act without any private property rights violation occurring whatsoever. A now gossips about B. Has A violated any â€œprivacyâ€ right of B? It is difficult to see how this would be the case. I go further: if A attempts to blackmail B about this situation, he would still not be violating any right of B. (For a further elucidation of this point, see Chapter 6 of my book Defending the Undefendable available for free here.) Why not? That is because there is no right to privacy.
If there were any such then people would be obligated to go around with their eyes almost entirely shut. They would have to look down at their feet at all times, lest they inadvertently see something that interferes with someone elseâ€™s right to privacy. And not only that. They would also shut down their other senses too, such as smell, hearing, etc., out of fear they would, again, learn someone about someone else that the other person wanted to keep secret.
What about book or movie reviews? You publish or produce one or the other, I review them. Have I not invaded your privacy, even if I extol the virtues of your product? I write you a letter; hard copy or email it matters not. I have again invaded your privacy. In the free society, post officesâ€”private ones, not public onesâ€”would do a far better job of shielding their customers from such unwanted intrusions. Private email providers already offer services maintaining privacy from unwanted spam emails. For a scholarly article in a law review making similar points, see Block, Walter, Stephan Kinsella and Roy Whitehead. 2006: â€œThe duty to defend advertising injuries caused by junk faxes: an analysis of privacy, spam, detection and blackmail.â€ Whittier Law Review, Vol. 27, No. 4, pp. 925â€“949.
One last point; this is one I shall be making in a soon to be published follow up volume of my Defending the Undefendable: What about real private detectives or fictional inventions such as Sherlock Holmes? If there really were a right to privacy, all such economic actors would have to be banned by law. It would be a strange society if private detectives were outlawed. It would not be a libertarian society.
Just to whet your appetite, this material comes from my Defending the Undefendable chapter dedicated to the Peeping Tom:
â€œAccording to the libertarian legal code, we may do anything at all to each other, whether they like it or not, provided, only, that in so doing we not violateâ€”not their privacy â€œrightsâ€ which do not exist, but ratherâ€”their property rights in their own persons and justly owned physical possessions. If the historian or gossip does that, he is acting contrary to the privacy proviso. But he may do anything else he wishes to do, as long as he operates within this boundary.
â€œSo, may a detective, hired by a wife, target a husband to determine whether or not he is committing adultery? Yes, as long as the gumshoe does not commit a trespass, or any other such rights violation. May the detective use binoculars or even a telescope if he wishes to engage in long distance surveillance? Yes, of course. If the journalist may look at his target with the naked eye, he most certainly may also utilize technical aids. No one seriously objects to the use of eyeglasses or opera glasses.â€
And, as to the Peeping Tom, if a woman undresses in front of an open window, the peeper may legally, at least in the libertarian society, look at her to his heartâ€™s content, until his eyes bug out. But, if he violates her private property rights even slightly to this end, he would be in violation of the law.
Bikinis, miniskirts, low necklines, strip clubs, nudist camps, would also have to be outlawed were we to take privacy rights strictly into account. Surely, no libertarian law would call for the compulsory wearing of the burka, for both males and females. Yet, how else can full privacy be attained? This seems like a reductio ad absurdum of the concept of privacy â€œrights.â€
—Mike Rozeff response via LewRockwell.com
My warm thanks to both Walter and David for their comments on privacy. We need such discussion and thought. I’m not going to add anything at this time to my earlier comments based on their comments. Sorry to disappoint anyone, but there will be no debate coming from me and point by point response, and the reason is that I have never found such back-and-forths productive. Instead, I’ll write a bigger article on privacy â€” when is anyone’s guess. I did have a few more thoughts on privacy that come next.
I think that human beings need certain things that go beyond such needs as food, shelter, space to move around in, clothing and such. We need acceptance, love, communication, self-expression, work, friendship, and a good deal more in order to function properly as human beings. We do notÂ have a “right” to love or a “right” to communication, but we still need them. Privacy may be something akin to things like that, something we need but not something we are necessarily obliged to say that we have a right to in order to defend our need for it and defend against government actions that undermine our getting it or holding on to what we have. Privacy can be under attack or threatened by government whether or not there is a right to privacy and whether or not the latter right, however defined, is under attack. Privacy also is something that’s multifaceted, and privacy’s dimensions need to be spelled out too if we are to understand what the problems are with the government actions that we claim are destroying privacy.Â I don’t mean to limit the discussion to government either. The press or other people can discover intimate details about one’s life. They can destroy a person’s career, standing, reputation and livelihood. They can bring great unhappiness. They can pressure and blackmail someone. There are cases of people committing suicide when their private lives were revealed after stealth videos were made. I have never agreed with the eminent Murray Rothbard’s positions on libel, slander and blackmail. This only means that in my preferred society, which will almost surely differ from that of the reader, I’d want others in my society to find ways to chastise such behavior and lower its incidence. For me, there doesn’t have to be a libertarian path or analysis that brings me to my preferred ethics and my ideas of what is right and what is wrong; and in many important instances, there is no such analysis because libertarianism is a political philosophy, not a complete guide to life. The tongue and what we say is often a source of great woe (and to the speaker too) even when there is no physical aggression. There’s an old saying to the effect that “A blow is forgotten, but a word is never forgotten.” This contradicts “Sticks and stones will break my bones, but names will never hurt me.” That little chant is designed to bolster the person who has been hurt by being called a name.
UPDATE: I had not read John Keller’s posting here on “The Need for Privacy” when I wrote and posted mine. He arrived at the same idea that I did, which is that we can need things to be essentially human without there necessarily being a right to them.