Comment on Privacy-BECKER

As Posner indicates, the meaning of “privacy”, like many other loose terms, becomes less clear on close examination. Yet basically, privacy issues come down to who controls certain information – in economic language, to who owns the “property right” to knowledge about the circumstances, attitudes, or behavior of individuals. I believe property rights to information should belong to individuals who are most affected, which in most situations are the persons referred to by the information. The exceptions essentially are situations where the harm to others from their not having this knowledge is too great to deny them access. These principles become clearer through examples. Take the case of medical records raised by Posner. I do believe it is important to digitalize medical records, so that they can be collated and organized to improve treatment of various diseases. I am involved in an organization that, among other things, is encouraging this digitalization process in order to speed up progress in treating serious diseases. Nevertheless, in the vast majority of cases, individuals should have the residual rights over information about their medical conditions and treatments since they have the greatest interest in seeing that this information is used appropriately rather than abused. This does not require a cumbersome procedure, and helps protect individuals against unauthorized and possibly ill-advised uses. Of course, if they choose, individuals can share their medical records with various hospitals and physicians, and allow them to be used for different purposes. Participate in clinical trials are asked to sign waivers that allow their treatment and response to be used by persons analyzing the trial data, although names of participants are usually kept private. Another example involves letters of recommendation for students as they apply for graduate work, jobs, or financial support. The present rule gives students the residual right to see these letters, but also allows them to give up this right through written consent. I have written hundreds of recommendations, but I do not write any unless persons seeking recommendations forfeit their right to see what I have written. I want to protect my own privacy! However, I have no problem with the requirement that anyone asking for a recommendation must have conceded in writing their right to see a recommendation before they are prevented from doing so. All principles have exceptions, and so does the assignment of property right to protect privacy. Fortunately, the exceptions are easy to justify in most cases. As Posner indicates, a criminal is forced to concede his right to privacy against wiretapping, searches, and other means of surveillance. A repeated sexual offender may lose the right to prevent that information from being made public. The rationale is that the potential harm to society from concealing information about past or potentially future criminal behavior greatly exceeds the gain to criminals from protecting their privacy. Still, it should be difficult for governments and private parties to obtain the right to various kinds of surveillance, such as wiretapping, in order to prevent its abuse against political opponents, business rivals, or for blackmail. Persons with highly contagious serious diseases often lose the right to protect that information since the social gain from public knowledge of their illness may be very large. Many societies have rightfully quarantined persons with diphtheria, scarlet fever, smallpox, and other highly contagious diseases. A harder case is information about persons who are HIV positive since that disease is not yet curable, but HIV positive persons pose major threats to anyone who has sexual relations or share needles with them. I believe the social gain from publicizing that information outweighs the right to privacy, although that position is arguable because individuals might then delay seeking treatment and discovering whether they are positive. To summarize, I believe we should usually give individuals the benefit of the doubt, and protect their right to privacy about knowledge concerning their health, behavior, etc without inquiring into the motives behind their desire for privacy. This protects them from its use in ways that have little social value, and yet would cause considerable embarrassment or discomfort. But like other property rights, individuals are free to allow others to have access to their private information. And clearly, sometimes the social value of this knowledge is too great to allow it to be kept private. But the obstacles to using information about anyone without their consent should not be easy to overcome.

Comments

[Rick Wash]

One issue that frequently comes up about privacy is the correctness of the information. Even worse than a bad credit record is an undeserved bad credit record. Does this property right include the right to correct bad (incorrect) information?

[Palooka]

"A harder case is information about persons who are HIV positive since that disease is not yet curable, but HIV positive persons pose major threats to anyone who has sexual relations or share needles with them. I believe the social gain from publicizing that information outweighs the right to privacy, although that position is arguable because individuals might then delay seeking treatment and discovering whether they are positive."

Couldn't you just prosecute those who do not disclose their HIV status to partners? Granted, many would still immorally expose others to danger, but so would making the HIV status public knowledge let cases slip through the cracks. This is especially true for the "one night stand." How many people do not even know the person's full name, or if they did, how many would take a few mintues to slip away to check the public database, presumably online?

[Ronald Ayers]

While in high school I remember reading Hawthorn's The Scarlet Letter and trying to reconcile the "damage" that Hester's "crime" had done to society against the benefit to society of her being forced to display the letter "A". The specifics change, but the questions linger on. For example, I've read that there are web sites devoted to "outing" gays and lesbians who are "public" figures. Does being a public figure mean that someone gives up all rights to privacy? How public does the figure have to be before those rights are relinquished? I like the way the Bush family has asked for the President's twin daughters to be granted some relief from the prying eyes of the media. They may not have a right to privacy, but they sure deserve more than they've gotten.

[DailyDetritus]

Doesn't the rather lukewarm view both Posner and Becker offer in favor of privacy fly in the face of the right against self incrimination? Isn't the basic state of affairs that we're all struggling sacks of protoplasm working quite hard, and usually without much chance of success, to better ourselves day to day? Dumping our ubiquitous and continuing failures into the public domain seems to strike at the heart of individualism itself, and put us at the mercy of those who are better at keeping their own failures out of the public domain.

[Ryan Kasprzak]

Outside of any legal constraint on the digitization of medical information, it would be interesting to see whether market solutions develop to balance the supply and demand for medical information digitization. I can envision two such possibilities, but there are certainly more. If the gains from digitization are administrative (for example, resulting in lower individual cost to provide medical services) it would be natural for medical providers or insurance companies to compensate individuals for their permission to digitize their information. If the motive for digitization is for reasons such as the facilitation of medical research, it seems again that compensation should be in order. People are compensated for their explicit participation in medical studies; why not compensate them for the implicit participation implied by the aggregation of anonymous statistical data? (One ‘why not’ might be selection bias, but, that is the researcher’s problem) Much has been learned about consumer behavior through analogous consumption tracking programs in which individuals are paid to record their consumption behavior.
The lack of markets for such information makes our debate on value of such information too abstract. Whether the social good of sharing information exceeds the value of privacy surely depends on how much individuals value their privacy. It would be interesting to look at instances where individuals, through their choices, reveal the value they place on privacy. If someone stole your medical records and threatened to post them on the internet, how much would you pay to prevent this?

[Ifti Qurashi]

The market for personal information already exists. If we consider that privacy is a property right then that right is being "stolen" (or at least traded without explicit consent) everytime a credit card, loyalty card or internet site tracks user activity. This theft is mostly harmless. It may even be socially useful if it allows firms to design and market products that are closer to consumer tastes, or if allows websites to better deliver the content users seek. Furthermore, just because the average consumer is seldom aware that he is trading away his privacy right doesn't preclude consumers from protecting their privacy. Indeed a great and growing number of people now use antispyware and other software to protect their privacy rights when online (the amount spent on such software may be a useful proxy for the value of privacy). Furthermore by transacting purely in cash and refusing loyalty cards consumers can protect their privacy rights. In many ways the market for personal information functions efficiently. We can conclude that because consumers continue to use loyalty schemes and credit cards they value the convenenience of use more than the privacy lost.

Digitization would enable medical records to benefit from a market structure. Medical insurance providers could "rent" privacy rights from consumers, offering lower premiums to those that choose to allow greater use of their records. Furthermore they could then aggregate and sublet these rights to research firms (almost like a bank aggregating and securitizing hundreds of individual mortgages). This would have the benefit of eliminating the need for legislation, consumers would be able to decide for themselves how much information they wanted to divulge and would be duly compensated.

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