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.

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