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05/08/2005

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Judge Richard A. Posner has a provocative post on privacy.

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Comments

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Palooka

David, you do realize "privacy rights" in the context of the Court's jurprudence on abortion or sodomy or sexual contraceptives is nothing more than a rhetorical guise--the Court has chosen the word because of its positive connotations. That's why, I think, Posner explicitly said he was NOT addressing those issues. Privacy as embodied in our Constitution has nothing to do with creating a "zone" or "penumbra" of behavior which is unacceptable for government regulation. It has to do with reasonable adminstration of justice, probable cause, and the like. If the Framers wished to recognize a right to something as inexplicable as "privacy" and "private behavior" then I am certain they would have done so. I suspect Posner didn't want this turn into a debate about those kind of "privacy rights." So I'll leave it at that.

Jon

Many of the above posts have made useful critiques of whether privacy really promotes efficiency. Several of those critiques raise the issue of privacy hiding either past non-predictive behavior or predjudicial behavior.

Recent psychological research suggests that contrary to the purely efficient market hypotheses, the human brain has evolved to put greater weight on past patterns then pure rationality would suggest. Furthermore, the human mind has also evolved so that prejudices are a barrier to rational behavior, even in decision making. Evolution favored animals that chase away or kill those outside their group!

Finally, even if the human mind were efficient, we might use privacy rights as a form of social insurance. Thus it might be efficient for an employer to avoid hiring people with a past history of cancer as screening for cancer efficient way of weeding out potential laggards (e.g. if 1/3 are likely to relapse).

However, as a society we don't want to deprive cancer patients of the opportunties that people with perfect health histories have, just because some of them will become too sick to perform on the job. We thus disperse the risk from the minority of individuals with cancer through employers and insurance companies. Just like I purchase insurance at a net negative present value, society may decide to protect someone's history of cancer treatment so that those individuals costs are someone relieved.

Bernard Yomtov

Chris Willis,

But consider the alternative to your not-so-lovely scenario.

HIV status is secret. HIV-positive workers are paid the market wage rather than being forced to accept below-market pay.

The irrational employer stays irrational, but this has no effect, in this case at least, so the company loses no competitive advantage. So the many other people who work for the irrational employer do not suffer by having the company go out of business, or otherwise perform poorly.

What was that about positive effects?

N.E.Hatfield

There is, "no presumption of privacy." There is an "absolute presumption of privacy." Either-or, the devil and the deep blue sea. How can two such mutually exclusive ideas co-exist in the world and in the affirs of man? Quite simply, life is a box full of dilemmas, contradictions, and paradoxes. And as informal logic has shown, there are two methods to deal with such dilemmas. One is to break one of the horns of the dilemma and deal with the other. The second is to escape through the horns.

Let's try and escape through the horns. But how?
By recognizing that "privacy" and it's issues are "situational" in nature and not categorical imperatives; nor are they a part of the "either-or" scenario outlined above. By accepting such a dodge it allows the use of either horn depending on the situation. Take for example, the case of a band of sabotuers and cut-throats operating at will in the country because we have adhered to the principle of "absolute presumption of privacy." Remember 9-11? I don't think we want that to happen again. In this case it would have been better to apply the principle of, "no presumption of privacy" and acted accordingly.
Just as in the case of a typical family going about it's normal affairs. We certainly don't want to apply the principle of "no presumption of privacy." In this case I think we can all agree that the principle of "absolute presumption of privacy" should prevail.

The question now becomes, who is to make the decision as to which principle to apply in each given situation? Customs and conventions that have been developed over a long period of time have established a method and all we need do is to stand on them. In terms of the questions of privacy, judges and courts have made these decisions in times past and a whole body of law and procedures has been developed in response.

Even in this age of international terrorism and special organizations to deal with it, judges and special tribunals have already been set up to deal with the issues arising out of the privacy paradox. Let's just hope we don't recreate the episodes of the Court of Star Chamber.

Anon

Hmmm... I know some federal judges who are making a strong effort to get their home addresses out of the public domain. Goodness, I wonder what illegitimate motives they could have to do do such a thing. Embarassment? Discredit? One can only speculate.

logicnazi

Some responses,

First in response to Paul Gowder I was just explicating two different notions that people use the word rationality to mean. The notion I called economic rationality is meant to capture the idea that someone who is rational is one who best optimally pursues his ends whatever those ends might be. The second notion, informal rationality if you will, is that one is not only (more or less) economicly rational but also has 'reasonable' ends. Surely you are not denying that economic rationality is a meaningful concept or that the word is sometimes used in this fasion (consider someone talking about a white supremicist rationally acting to eliminate blacks, the end is clearly unreasonable but we still might use the word rational to describe them if they pursued this end in a very efficent manner).

I simply don't understand what you mean when you say you reject the notion of economic rationality. Do you mean that people never use the word in this manner or something else? How can it be that using the word rationality to refer to economic rationality leads to nihlism? Is there some important moral rule that tells us the letters 'r', 'a' and so forth put together must refer to informal rationality? I certainly never meant to imply that rationality was a sufficent condition to be moral (it may not even be necessery) so I fail to see how this could lead to nihlism. Just as one might decide that being honest doesn't preclude you from being a murderer yet not think murder was okay so too can you define economic rationality to include white supremicists and others with unreasonable goals without condoning their behavior.

Perhaps though I wasn't clear enough in my original post. I do think people are better off with certain information protected by government regulation keeping it either private or obscure. I merely meant to say that I don't think we can use the notion of whether people react rationally to the information to either pick out those situations that ought to be protected by privacy laws or to defend those laws. In particular I am alleging that a rule that said we should protect people's privacy when others would be likely to react irrationally to the information would not be of much use.

Now we have two choices. If the rule is supposed to say that we should protect information when it makes people act economically irrationally this is much too strong a burden to meet as you correctly point out. It seems nigh impossible to show that some information made some act irrationally in this sense and didn't just have some bizarre strong preference. Furthermore (and perhaps this is what you were alluding to with your nihlism comment) it would fail to protect many situations we think deserve protection.

So what about the other case where we test information to see if it will make people act irrationally in the informal sense? This unfortunatly seems to be almost no guide at all. The notion of a reasonable end seems so vague as to be useless. For instance consider an employer who has mounted cameras in the restroom to make sure employees aren't using drugs in the restroom or discover who was defacing the bathroom. Should he have a right of privacy to hide the existance of these cameras because not wanting to be seen nude is an unreasonable end? After all being seen nude has a lower risk of harm than touching someone with HIV and we seem to want to call the desire not to be around HIV+ individuals irrational. If you don't believe employers deserve privacy rights just rephrase the situation to involve individuals (someone who put cameras in his bathroom to make sure his kid didn't fall down). Does someone who runs a daycare in a house built on low level radioactive tiles (some tiles used to be made with uranium paint) have a privacy right to keep that information secret as people react irrationally about radioactivity?

Conversly consider someone who wants to keep their terminal illness private. It seems that any reasonable privacy protections would respect this right but it doesn't seem like there are an irrational reactions to this information. Even better consider the privacy of communications between husband and wife. I think we rightly protect such communications in the law in not making spouses testify against each other about such communications. However, here the concern is preciscely that the DA will use the information perfectly rationally to prosecute the individuals.

In summary I don't think the notion of irrational response can be used to deliminate privacy or make a case for it. Either the notion is much to weak as in economic rationality or even more vague than the idea we are trying to analyze. I think we have a better sense of what sort of information ought to be private that we do about what ends are reasonable and hence rational. Is it rational to not want to be seen naked, not to be around radioactive substances, stop people from using drugs, to not want to walk home at night in a neighborhood that just had a murder even though statistically it is still safer than driving? In short this notion of rationality really just reflects our social value judgements not some objectively perceptable difference between the ends under consideration. Yet if we are going to do this why not just directly make these judgements about what is private information and what isn't which seems more direct and clear than this roundabout fashion.

In particular I think the compelling reason why rationality cannot be a guide is the following. We certainly do not think that a cook in a restaurant has a right to privacy about putting pork in the food or whether he allows a dog in the kitchen while cooking even though people react strongly to these things because of arbitrary religious prohibitions. However, if these arbitrary religious prohibitions are considered rational for the purposes of privacy it seems we must also deny the cook a right of privacy about whether she is menstrating as some religions find this to be unclean.

So yes I agree that certain information may in fact make everyone happier if it is kept quite like your HIV example. However, there isn't any notion of rationality which can provide us a guide to determining which information deserves protection. We have to actually look at all the effects and psychological reactioins and see on which side the balance falls including questions of whether lack of privacy would deter honest communication (reason for privacy of doctor patient relations). I do think that our intuitive reactions that some things should be private and others not are helpful but I don't really think our intuitions about what is rational and what isn't are very helpful. Some things which are completely irrational like not wanting to be seen naked are still worthwhile since they don't hurt anyone and correcting the irrationality would just cause suffering.

Finally to Palooka I agree that some of the reason one might be upset about your particular question is a sense that the information should be private but I don't think this is the full reason such a question would be disturbing. I mean imagine two situations one in which an employer accidently posts the medical information of all the employees and another where you are asked by another employee whether you have anal warts. I at least would be much more disturbed and offended by the second than the first. So while I agree finding the question invasive is a guide to whether we view the information as private I think it is incorrect to assume that stripping privacy protections is just as bad as being publicly asked. Often with this sort of information we find it embarassing and the actual act of being questioned in public can be much more unpleasant than someone just knowing.

Paul Gowder

Logicnazi:
I simply don't understand what you mean when you say you reject the notion of economic rationality. Do you mean that people never use the word in this manner or something else? How can it be that using the word rationality to refer to economic rationality leads to nihlism? Is there some important moral rule that tells us the letters 'r', 'a' and so forth put together must refer to informal rationality? I certainly never meant to imply that rationality was a sufficent condition to be moral (it may not even be necessery) so I fail to see how this could lead to nihlism. Just as one might decide that being honest doesn't preclude you from being a murderer yet not think murder was okay so too can you define economic rationality to include white supremicists and others with unreasonable goals without condoning their behavior.

I think I was unclear. I reject the notion not because it's incoherent, but because we're not just talking about theoretical "economic rationality," we're talking about how policy should be made.

Let me rephrase. I reject the notion that policy can be made on the basis of "economic rationality." Because if we make policy on the basis of assuming that our goal is to, as it were, remove "transaction costs" and treat all desires as "utility" deserving of respect in accorance with the value the desirer places on it, we wipe out centuries of ethics in social policy. That's nihilism.

Nonetheless, your criticism of the application of rationality in your more recent comment are well-taken: in particular, it's hard to answer your analogy between forbidding a chef to keep private the presence of a dog in the kitchen (concern about which, assuming the dog doesn't get into the food, is irrational under my definition, albeit rational under yours) and forbidding a chef to keep private their mensturation (concern about which would also be irrational under my definition and rational under yours). Because, unfortunately for my own defense of that principle, I agree that chefs shouldn't be allowed to keep dogs in the kitchen privately. (Perhaps, however, this is merely a measure of my own human irrationality.)

As much as it pains me to do so, then, I'm going to partially concede my previous rationality position to you. There are some human irrationalities which ought to be coddled (i.e. the religious refusal to consume pork) and others which should not (the hysterical refusal to associate with HIV+ people) and I don't have a principled distinction between them.

However, I maintain in opposition to Posner's point that there are some private facts that may be "discreditable," such as HIV status (or FDR's ailments, or JFK's ailments, or Clinton's fellatio, or 5-year old negative credit items under wholly different circumstances, or 20-year old criminal convictions) that should be kept private. I further maintain that one way to describe the reason that those facts should be kept private is because the persons who learn them will likely them to punish the person about whom the facts pertain in a far greater degree than is warranted by the actual personal risks to the punisher that the facts in question indicate. Perhaps we can use a different word to describe that, since irrationality isn't working. "Excessive risk-aversion" might be a good phrase.

The problem with excessive risk-aversion as applied to choosing to enter transactions with other humans, is that if such risk-aversion is truly excessive, it causes a massive culumative harm on the person at issue.

Consider, for example, the hypothetical case of one lower-middle class person rejected by 100 wealthy corporate employers because of his 20 year old conviction for stealing a pizza. This is not improbable: assuming two candidates are fairly close, almost any employer will likely (common-sense here) reject the one with the old conviction.

Once again, I'll play economist and make up some numbers (this is fun!). Each employer presumably takes a slightly less enriched pool of candidates than if they hadn't "irrationally" or "excessively risk-aversely" rejected the pizza-thief. Lets say their loss is valued at $100.00 each. Assume further that the risk-averse manager at each corporation incorrectly views the probability of a theft from such person as .05 (it's really .001), and the potential loss from such a theft as $1,000.00 -- leading to the incorrectly expected loss from hiring such a person at $200.00. Each employer then saves a net $100.00 from not hiring the pizza-thief, and so each employer will make an "economically rational" decision (since their misestimation of the risk is in accordance with their risk-averseness, which is psychic disutility) to not hire the person.

HOWEVER, the loss to a person who is thus rendered unemployable is greater than the loss to one employer, so lets say that loss is $2,000.00. Plus there's some marginal additional harm from each rejection (wasted effort, misery, etc.).

Thus society as a whole is put in this weird nonlinear position that to me seems to defy the basic economic assumptions we're working with. If any one employer had simply hired the guy, he would have taken an expected $200 hit instead of an expected $100 hit (although he really would have profited under the assumptions above since his expected loss was based on an overly adverse estimate of the risks), but the pizza thief would have gained $2000+, so society would have had a net gain if he'd been hired. (Do we have a game theory expert in the house??)

And don't just pull a Coase on me and say that the employee could have paid the employer (or posted a bond or something) to compensate him for those risks, since getting a job is worth more to the employee than not hiring him is to the employer. That's why I used the example of an unemployed, convict. He can't afford to pay the employer, and he certainly can't get a loan with no job and a criminal record. One of the big, huge, MASSIVE flaws with the Coase theorem is that it assumes unlimited wealth is available to everyone.

Far better, it would seem to me, to just expunge the criminal record and thus deny the employers even the opportunity to cause that net social economic loss by virtue of their misestimation of the risks inherent in hiring someone with a 20 year old conviction for stealing pizza.

Do I have a principled distinction between the pizza stealing/menstration and the dog in the kitchen? Alas...

Paul Gowder

Addendum: the other point that I was thinking about (and forgot to write in my speed-typing-between-work-tasks) in the previous comment's hypothetical is that the employers also collectively lose in that situation.

Each employer, after all, lost $100. Now, admittedly, each employer did so in order to avoid a $200 loss to themselves, so under an individual reckoning they gained $100 net. However, only one employer need have taken that $200 loss from hiring him. Thus, among the hundred employers:

NOT HIRING:
100 employers lose $100
Total loss = $10,000.

HIRING:
1 employer loses $200
99 employers lose $0*
Total loss = $200

Thus even if we fail to take into account the loss of the employee, the employers have a collective action problem: each individually makes an "economically rational" decision to not hire, but that decision leads to a net social loss.

I submit to you that this is the case for all forms of discrimination that cause an employer to reduce their applicant pool: even if you give them credit for "economic rationality," there's a net social loss that needs to remedied by law, and one of the laws that can do it is allowing people to keep "discreditable" (a.k.a. "discriminatable") facts private.

------
* The reason the other 99 employers don't suffer the same "less enriched applicant pool" that was the source of their loss in the non-hiring scenario is that I'm assuming that the employee gets an interview before he discloses the conviction, or otherwise uses some of the employer's limited screening resources. Thus, if the employer could consider 20 people with him in the applicant pool, their rejection of him reduces their applicant pool to 19. On the other hand, if one hires him, he's not applying to all the other employers, who can then fill that slot in the applicant pool they can afford with another person, giving them the full opportunity to find the best candidate and avoiding the $100 of applicant pool loss.

Corey

To my view, privacy rights between equally situated individuals are ideally irrelevant. Disclosure only conveys a bargaining advantage to other persons if the information disclosed is something criminal, embarassing, or socially stigmatized. People can avoid the harmful effects by not doing anything criminal unless they are willing to accept the consequences (civil disobedience 101), by growing up about bodily functions, and by working to counter unfair social stereotypes.

If you are not a criminal, have rejected puritanical American repressions, and are committed to outing bigots and profilers rather than working for them, you can't be hurt by disclosure. Privacy between individuals can be limited to things like PIN numbers and passwords that protect real/personal property rights.

I think the main justification for privacy rights derives from the potential for Orwellian government use of personal information. The government wants information about you because they want to individualize their mechanisms of control. They want to maximize their tax revenue, predict your voting patterns, and preempt any revolutionary impulse you might have.

There hasn't been a lot of talk here yet about the PATRIOT act, Arab profiling, and airport security. Yet the worst impositions on all of our privacy rights over the last 5 years have been right there. Everyone say hello to CARNIVORE in your next email.

The government thinks most Americans are willing to give up their 4th and 5th Amendment rights to some degree because the people are scared of Arabs. You all may actually feel like you have nothing to hide and so it is OK for the NSA to read your email along with the evil bearded terrorists you imagine are out there. The people who want to push back against government incursions into personal privacy risk being characterized as an apologist for the terrorists.

History shows that this is exactly the climate for the erosion of individual rights. A populace that is afraid, increasing economic disparity, an "enemy" that is reportedly among us... and a slow silent slide into facism.

For these reasons I think conflating privacy between individuals and privacy vs. the government is a bad idea. (Or if you prefer, privacy b/t market actors and privacy in unequal power relationships) It is certainly possible to want more of the latter and less of the former. Lumping them together under the global term "privacy" limits the discussion.

Palooka

However, I maintain in opposition to Posner's point that there are some private facts that may be "discreditable," such as HIV status (or FDR's ailments, or JFK's ailments, or Clinton's fellatio, or 5-year old negative credit items under wholly different circumstances, or 20-year old criminal convictions) that should be kept private.

=======

Though we have been in much agreement on this topic, I do not think JFK's or FDR's ailments should have been kept private. The people have a right to know if their president is healthy because the president's health is vital to the job he is conducting. Where a medical condition is immaterial to his performing his duties, his records should be kept private in the same way as the general public. From an economic standpoint, the harm to the people, because of the importance of the job of the presidency, is much greater than the harm done to a given presdidential candidate's ambitions. We have an asymetry here--one man's ambitions versus the well being of the country. This asymetry is not present in the common case under discussion in this thread.

It's wrong to conflate these two situations with the subject of medical privacy broadly for several additional reasons. First, the "job" of being POTUS is an exceptional one. It is mentally and physically exhausting for even a man in excellent health. The American people have a right to know if a candidate suffers from a severe physical or mental impairment because it is absolutely material. Now, this doesn't mean that it was irrational to elect JFK or FDR, it just means that their physical conditions are one of many factors which the public should weigh. Given two similar candidates, one should choose the healthier one. Second, it is widely recognized today that as a public servant one surrenders a great deal of their "privacy." Moreover, in the case of JFK or FDR you are suggesting that they have MORE, not the same, privacy of the average citizen. Would it be conceivable that FDR conceal his impairment to an employer in private practice? Would it be conceivable that JFK could have done the same? Of course not.

Lastly, let me deal with your drivel about Clinton. He had the same privacy that any other citizen would have if they were being sued for sexual harassment. It is absolutely relevant to a sexual harassment suit to investigate his pattern of sexual activity with subordinates. His privacy was not breached anymore than YOUR privacy would be breached if you were being sued for sexual harassment, and had embarrassing details of sexual relations with subordinates come to light. The appropriate question, however, is if the office of the presdidency should be burdened with any kind of civil suits, even if credible.

Palooka

"Finally to Palooka I agree that some of the reason one might be upset about your particular question is a sense that the information should be private but I don't think this is the full reason such a question would be disturbing. I mean imagine two situations one in which an employer accidently posts the medical information of all the employees and another where you are asked by another employee whether you have anal warts."

Yes, there are differences, but the underlying principle of privacy is present throughout. An additional grievance to such a question is that it implies that there is a chance the individual has anal warts. If I asked you in front of your students if you had HIV, I think part of the harm done is that some students may think you do, even if you answer that you do not. It is especially true if you refuse to answer (the principled response to a rude question).

But I believe that the main reason these subjects are considered rude and inappropriate is because this kind of information is considered "private." It is for one's use only, unless they personally choose to disclose it. If the question of whether Judge Posner has anal warts or not is immaterial, rude, and completely inappropriate during oral argument, then I think it is immaterial, rude, and inappropriate to disclose this information to the public in any forum (even if some fora are more damaging than others).

Paul Gowder

Palooka:

That's as may be, but I really only meant the FDR thing at least (I'm not sure about JFK) as s good example of the risks from overweighting (being excessively risk averse). Notwithstanding his polio, I think almost everyone, no matter their political perspective, agrees that he was one of a handful of the U.S.'s greatest presidents. If he hadn't been elected because the people overweighted his polio, well, some of the more extreme possibilities if a lesser president had been elected are rather dramatic. How's your German?

Perhaps it was a bad example, since I suppose we have to trust the people to give due weight to those facts about presidential candidates, as unlikely as I think that is.

(I'm not going to address the whole Clinton thing and my "drivel" for the same reason I didn't address your abortion point earlier: in your correct words: "I suspect Posner didn't want this turn into a debate about those kind of 'privacy rights.'" However, suffice it to say that I'm certainly not agreeing by silence...)

Chris Willis

Bernard:

I think there is a positive benefit any time people don't feel that they have to keep something secret about themselves that they don't want to conceal, and I don't think that people should have to hide those things from irrational actors to maintain the market value of their skills.

Joshua Harden

Since reading Judge Posner's excellent essay on Huxley's Brave New World and Orwell's 1984 (not complete yet, I don't think), I am curious to know, if Judge Posner has any sociological indicators to watch out for, least our society starts (we have already started in my opinion)to mass produce psychologies of infantilism (the ultimate societal damage according to Jeremy Bentham's Penopticon)from a complete loss of "secrecy and solitude" -- at what level of nihilism do we attempt a true analysis of privacy lose causation. This is another situation were libertarianism truly clashes with paleo-conservative values of guarding against de-humanization at all levels. I think it is a difficult argument to make that personal information privacy should be viewed solely or largely through an economic lense in the Information Age without granting a property right to the producer of the personal information. Got to go...I off to a "feelie" -- otherwise known as America's Pub in Kansas City, Missouri -- true "Ecstasy" awaits me at the door.

Bernard Yomtov

Chris,

I agree, but you're describing an ideal world. The fact is that sometimes concealment is necessary, because there are irrational actors in the world. And of course some people simply prefer to keep things to themselves.

logicnazi

First to Palooka I think I misunderstood your original point. I thought you were saying that the harm of breaching privacy is tantamount to the harm we would suffer if someone publicly asked us these questions. I agree that the fact we find such questions disturbing is rooted in our attitude that the information asked for is private. I was just pointing out that much of our motivation for keeping information private is not fear of real consequences but just embarasment and that embarasment is far more intense when you are personally present than when you merely knew something happened in the abstract. This is why many people would prefer to handle embarassing encounters via email or letter and view dealing with it in person as a chore.

So yes I agree that this suggests we have an emotional attachment to keeping certain information private. However, I was just saying that when weighting the costs and benefits of keeping information secret we should be careful to think of it as the information being passively made availible and not equate it with the embarasment of being personally involved in the disclosure.

As for the FDR and JFK deals I have to second what Paul has said and agree that the revelation of this information might hurt the choice of president instead of help it. That is I think it is silly to suppose the people have some prima facia right to any information that might be relevant to someone's role as a president. In fact I think it is somewhat silly to think that there is some fundamental moral obligation to democracy or an open society, rather we favor democracy and open information because it makes for a better country and has good consequences. As such the question of whether presidental medical information should be public depends on whether this will make the population make better or worse choices for president. In particular given the limited resource of public attention I think it is quite possible that public information about medical conditions or sexual misadventures blots out more important matters of policy consideration.

In other words I agree totally with the point that who ends up as POTUS has a huge impact on society. Thus if in fact knowledge of private information made the public make better choices this trumps the presidents interest in privacy. Conversly though if people make worse choices when this information is present (and it isn't hard to come up with examples where more information makes people worse at deciscion making) then it should be kept private for the same reason.

Finally, to Paul I simply disagree that making public policy deciscions based on the actual preferences exhibited by individuals irrespective of the nature of those preferences leads to nihlism. Just the opposite it leads to utilitarinism. This sort of attitude simply says the government should do whatever creates the most happiness regardless of why it creates that happiness.

In fact far from leading to nihlism it warrants exactly the sort of distinctions society finds reasonable and caused problems for you with the dog and menstration case. Why is it that we feel restaurants shouldn't have a right of privacy about keeping a dog in their kitchen but the cook should have one about whether she is menstrating? I think the answer is simple, because the discomfort and emotional unpleasentness of having to reveal the presence of your dog is much less than that of having to reveal your menstraul status. That is we draw a distinction between these situations not because there is some truly objective difference between the presence of dogs and menstration but because the strength of people's reactions to them differs.

The same principle applies to our government laws on discrimination. Why is it that religous belief is a protected class but things like your favorite band, amount of income or opinion on the war of 1812? I would allege that it isn't anything objectively special about religion, the idea that some guy rose from the dead 2000 years ago isn't intrinsicly different than any other ridiculous historical belief or other choosen affiliation rather it is the fact that people have very strong feelings about religion and religous discrimination that they don't have about these other beliefs and affiliations. This is also the same reason we make a big deal out of discrimination based on race, gender and to some extent sexuality but not about other inherent characteristics like having a grating voice or an asymetrical face (it is illegal to refuse to hire a recptionist because they are of a race which wouldn't be pleasing to your customers but not because they have a voice that would be irritating to your customers even though both are inherent qualities).

So even though there is no objective reason why people should define themselves in terms of their race and religion rather than in terms of groups with a longer big toe than second toe or those who believe the Rosenburgs were guilty of spying the fact that people do have these preferences authorizes the government to treat these categories quite differntly. In fact not only do we decide our laws on this basis I can't think of any other way it would be acceptable for us to decide our laws. To deny this principle would be to say that we should make deciscions that we KNOW will cause more overall suffering (in the long run) because the grounds for this suffering is not reasonable.

If you don't accept the idea that the government should consider completely arbitrary but strong emotional reactions when making policy how could you possibly defend the privleged position the government grants to religion?

Paul Gowder

But wait! There's more! Another little trick of my psychedelic game is that the players... don't know each other! So they can't follow the usual way to break collective action problems, which is to make enforceable contracts with each other. I suppose entire industries could get together, in the particular hypo, and create risk pools of employees (sorta like insurance company high-risk pools), but, well, are they gonna?

The only other way to bust a collective action problem generally is by... force. And therein is the justification for drawing a line around certain privacy rights by just that.

Chris Willis

Bernard:

I'm not sure we're even on opposite sides of the coin here.

I believe some people do prefer to keep things secret because there are irrational actors. If opening that information up to everyone will lead, in the long run, to fewer irrational actors, but some discomfort and/or embarrassment in the present, I think that the benefits would weigh in favor of disclosure.

Corey

"I have to find some value, some principled reason, to point to to justify my refusal to just hand those values over to the tender mercies of the market and/or the polis."

Just stick it to morality. You are allowed to have moral values and ethical beliefs that guide your life. All of our culture heroes do, which is why we worship/respect them. Your distrust of simply handing all of life over to the mechanical preference summing machine of the marketplace does not and can not require mechanical preference summing to justify itself.

If you must, attack the market for its numerous pathologies (offer-asking problems, sensitivity to initial distribution, transaction costs), but really, these are just ways to enter the morally bankrupt land and argue within the terms allowed by the cynics. Those who findamentally reject "skeptical liberalism", "social darwinism", "L&E" or whatever it is called this decade do so on a base, human, spiritual level and would do well to admit that.

Those who insist on re-labeling "values" as "preferences" simply reveal their cynicism, which is very unattractive. This is why the People reacted so badly to Bork. I posit that real human beings believe in things without proof based on learned cultural values and this is the right and proper way. To call these expressions of cultural truth "preferences" demeans their derivation (in the minds of those who hold them) from a higher, natural or even mystical source.

It is one of the characteristics of higher education that the more one learns the harder it is to ground anything on faith or instinct or inspiration. Universities and scholarly discourses adopt an institutionalized cynicism.

For example, I recently learned that one of the most famous collections of "existential" literature (used to teach undergrads) includes only the first half of Dostoevsky's Notes From Underground. In that book, he manages to both present the problem of cynicism and suggest a humanistic redemption. Modern scholarship has deemed the latter to be worthless when in fact it was the whole point to me.

But back to law, as between the market or the polis, the choice depends on whether one prefers one-dollar-one-vote or one-person-one-vote. And that choice really depends on the extent to which you believe that it is possible to acculmulate lots of dollars in a principled, praiseworthy manner. As my contracts professor said, "People don't get rich by exchanging goods of equal value in the marketplace, yet we praise the rich."

I would point out that the desire to reduce "values" to "preferences" is an excellent way to avoid the above question. To the extent that we allow moral content to determine policy, then there is a strong argument for real equality. If "fairness has no content", then those with many dollars can justify their unequal status on the grounds that preferences are best expressed in monetary terms.

That's how I read the subtextual poly-sci debate here most weeks.

Corey

"Why is it that the "economically rational" actors choose to ascribe a large disutility to HIV+ status?"

Even given perfect information about the risks, it could still be possible that there is a large disutility to hiring HIV+ employees. (In terms of higher health insurance costs, since HIV treatment is expensive)

However, most people would agree that employers should not be able to discriminate on this ground.
(Applying their moral/cultural equality norms)

This situation REQUIRES a (as you say) "no-compromise" value in order to achieve the result that most people would prefer. The market, if it functions at all, will discriminate against the unhealthy if left unchecked.

Adhering to a privacy right would work, however, there is perhaps a better way... simply adopting a universal equal access right to health care! The costs of treating HIV+ patients would be spread and there would be no incentive for a particular employer to discriminate in order to affect premiums.

Depending on the privacy right is a less desirable way to approach this because it simply says to employers "no, you can't cost-optimize in this particular area."

Similarily, use of privacy norms to protect bargaining power in the market... which could be better protected by equality norms regarding fair prices. (Or simply by a more equitable initial distribution of bargaining power)

The Supreme Court uses "privacy" as a stand in term for liberty interests in abortion, contraception, sodomy. Perhaps as Posner suggests because privacy is more universally recognized as a "good".

Paul Gowder

Corey: you're completely right, of course. I'm merely trying to beat them at their own ballgame.

Bruce Gottlieb

Doesn't the concept of "reasonable expectation" have a great deal of importance in understanding both emotional responses and the costs/benefits of privacy rules? For instance, I have no expectation of privacy when I post this theory on a blog, but would have a greater expectation were I to email this directly to Judge Posner and ask him not to identify me by name, and a still greater (in fact, legally enforceable) expectation if I were to send it to my lawyer. This expectation will determine in large part the opinions I am willing to express and how I express them. Indeed, context has such a powerful effect on the content of speech (gossip vs. personal opinion vs. official or professional statements) that I believe that most people make the appropriate adjustments totally unconsciously. (Except, famously, for a certain politicians/college presidents who misjudge their audience occasionally and make remarks that later blow up in their face -- i.e. about Strom Thurmond's legacy or the academic capabilites of women scientists).

This idea seems quite broad to me. For instance, I may request an HIV test from my doctor if it is anonymous (cannot be reported to private insurers) rather than just confidential (can be, tho only if I agree to let them review my charts, as I must in order to begin a policy). And I may take great care in taking a law school exam but little care in writing a seminar response paper, because I know that future employers will have access to the results of one but not the other.

Put formally, the model that Judge Posner outlines looks only at whether the social utility that results from a set of transactions would be increased or decreased if certain information were disclosed. But I believe the model could usefully be expanded to consider whether the privacy rules will affec whether that information would exist in the first place -- for the reasons noted above, I think there are plenty of situations where it would not exist without an expecatation of privacy.

It also seems to me that two conclusions flow from this amendment to the model. First, in terms of understanding peoples' emotional responses, the level of discomfort about disclosure of private information can be seen as a type of betrayal of expectations. I don't want my nude picture displayed because I had an expectation that my pose on a nude beach would not be reproduced. If I had known that it would be, I might have exercised more this winter in order to look more attractive. (I concede that there is also a more basic discomfort with nudity operating here -- but I do think that the idea of being "violated" is in some ways driven by the dislike of being "surprised".)

But more important, the cost-benefit analysis of privacy rules also changes if we account for expectations. To take an easy example, knowing that I am "off the record" may permit me to have discussions with people that are socially useful but that would not occur without that expectation. The lawyer-client privilege is one example, as is the informal chat between academic colleagues (the privacy rule in the latter case is of course a social convention rather than legal obligation). But more broadly, consider the rule that the police have less authority to look at what you do in your house than what you do in the street. The obvious cost of this rule is that it leads to fewer drug arrests, since criminals can assume that their home is a safe base for, say, turning cocaine into crack. But the benefit is that people feel comfortable in their homes viewing non-obscene pornography or walking around naked or drinking heavily, all of which are perfectly legal and utility-enhancing activities that they might not want other people (including police) viewing. More generally, and this does get into the idea of privacy expressed in Griswold and the due process cases, creating a sense of comfort in certain specified realms is important to allowing people to engage in lots of behavior that they would be shamed into stopping if they had no expectation of privacy. Thus, if we want to allow that class of semi-shameful but utility-enhancing behavior, then we need to set clear privacy rules and enforce them. And we need to think about how various degrees of privacy would affect the amount of such behavior. Of course, the best outcome of all would be to stop people from feeling shame about behavior that we have chosen to sanction, in which case no privacy would be necessary -- but that is not the world we live in, and not the people we are. (Indeed, and this is obviously an entirely different topic, shame and assorted emotions may have real importance in social organization.)

Corey

"creating a sense of comfort in certain specified realms is important to allowing people to engage in lots of behavior that they would be shamed into stopping if they had no expectation of privacy."

If you believe in the value of privacy that is described above then one of the necessary consequences is a committment to doing something about the homeless. People without access to private spaces are effectively prevented from all of the behaviors you describe. In fact, many cities have passed nasty anti-homeless laws that target activities such as sleeping or drinking outside.

This is yet another in a seemingly growing list of preferences for equality norms over privacy norms. There is a dramatic difference between saying "everyone has a right to a place to engage in private behaviors" and "everyone has a right to engage in private behaviors in their place". Since the latter presumes a status and excludes those many thousands who do not have access to a private place on a regular basis.

If possession of property is a prerequisite to exercise of privacy, and privacy is a protected right, then Equal Protection demands minimum housing just as clearly as it demands a minimum wage.

Eric Rasmusen

Should companies that sell shoddy goods have the right to block magazines from publicizing that fact, on the grounds of privacy?

Should people who have pasts that make them unattractive to insurance companies or employers have the right to block a computer database from publicizing that fact, on the grounds of privacy?

In both cases, privacy merely abets fraud and hurts more people than it protects, and less morally culpable people. Indeed, you could view a privacy law as government interference with the right of people to choose with whom they do business.

Paul Gowder

Eric: I think the discussion has tread all over that stuff, but, I'm curious about something.

Suppose I, just to make the point, scrounged the internet for any reference to you, then dug up everything you'd ever done, then hired a P.I. to follow you around for a bit, bought access to some databases, etc. etc., made a nice big binder with all of it, and forwarded it to
(a) Your employer;
(b) Your spouse/significant other; and
(c) Any insurance companies you do business with.

Would you feel yourself wronged by this? Even if you didn't get fired/divorced/charged premiums through the nose? I sure would.

In fact... Eric. I personally believe that the political opinions of people with higher high school and college GPAs are more likely to be accurate. It's certainly not a very good predictor, but it's a heuristic that I, in my economically rational way, would like to use.

Please scan and e-mail me a copy of all your transcripts, immediately, so that I may determine what weight to give to your opinions. Otherwise you're defrauding me.

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