Posner on Privacy

Recent controversy over the digitizing of medical records has brought to the fore the issue of balancing privacy against other values. Digitizing medical records would help doctors and patients by making it much easier, swifter, and cheaper to transfer these records when a patient switches doctors or is treated by a new doctor in an emergency or needs to consult a specialist. But once records are digitized rather than existing solely in hard copies in the office of the patient�s primary physician, the risk that unauthorized persons will gain access to them is increased. So, as often in law and public policy, a balancing of imponderables is required. My own view is that we tend to place somewhat too much weight on privacy. The word �privacy� has strongly positive connotations (like �freedom�), which obscures analysis. All that privacy means in the information context (for I am not talking about the Supreme Court�s usage of �right of privacy� to describe the right to an abortion and other sex-related rights�the Court appropriated the word �privacy� to describe these rights presumably because of its positive connotations) is that people want to control what is known about them by other people. They want to conceal facts about themselves that are embarrassing or discreditable. The two motives should be distinguished. In many cultures, including our own, there is a nudity taboo (oddly, it is much weaker in northern European nations); except for commercial purposes (prostitution, striptease, pornography, etc.), and the tiny band of nudists, people are embarrassed to be seen naked by strangers. Why this is so is unclear; but it is a brute fact about the preferences of most people in our society, and since transaction costs are low, it makes sense to assign the property right, in this instance at least, to the individual whose privacy is sought to be invaded. There is no dearth of persons willing to sell the right to see them performing or otherwise appearing in the nude, so there is a well-functioning market without need to coerce anyone to so appear. The second motive for privacy, however�the desire to conceal discreditable facts�is more questionable from a social standpoint. In order to make advantageous transactions, both personal (such as dating or marriage or being named in a relative�s will) and commercial, people try to �put their best foot forward.� Often this involves concealing information that would cause potential transacting partners to refuse to transact with them or to demand better terms as a condition of doing so. Such concealment is a species of fraud. It is too prevalent and, on the whole, insufficiently harmful to require legal sanctions (other than in exceptional cases). In addition the potential, victims of such fraud can usually protect themselves (though not costlessly): for example, lengthy courtships are a way in which potential spouses verify the implicit and explicit representations of each other and thus unmask the frauds that are a common feature of romantic entanglements. Moreover, to require blanket disclosure of private facts, thus treating every individual as if he were the issuer of a securities prospectus regulated by the SEC, would drown society in trivial and distracting information. It does not follow that the law should go out of its way, as it were, to enable, to protect, these (minor) frauds by granting expansive legally enforceable rights of information privacy. Medical records are a case in point. People conceal their medical conditions (sometimes as a means of concealing behaviors that have led to medical conditions), in order to obtain insurance at favorable rates, obtain and retain jobs, obtain spouses, becomes President (in the case of John F. Kennedy, who concealed his long array of serious illnesses), and so forth. These concealments can impose significant costs on the other parties to the transactions. This is not to say that all such concealments are strategic. I believe that many people would be uncomfortable to learn that their medical history had been disclosed to people living in distant countries, people with whom the possessor of the medical history will never transact. This would be like the nudity taboo: concealment motivated by embarrassment rather than by transactional objectives. I mentioned that in exceptional cases in which people try to keep information about themselves private the law does step in. No one wants privacy more than criminals! Yet searches, wiretapping, and other means of surveillance are authorized to invade the �privacy� of criminals, terrorists, and other antisocial persons. Because of its favorable connotations, the word �privacy� is rarely used in such contexts. It would be good if the word was either purged of those connotations, or, more realistically, was understood, in disputes over measures such as digitizing medical records that compromise �privacy,� that was what stake was simply reducing somewhat the ability of people to manipulate other people�s opinion of them by selective disclosure and concealment of information. Even strategic secrecy, however, can have positive social value. An example is trade secrecy, which is a method of obtaining protection against copying that would prevent appropriating the benefits of an innovation. In addition, some, perhaps a high, degree of privacy of communications is socially beneficial (hence wiretapping and other forms of eavesdropping are lawful only when directed against criminal and other public enemies, actual or suspected), because people will not speak freely if they think they are being overheard by strangers, and there is value in frank communications, including being able to try out ideas without immediate exposure to criticism. The particular concern I have with defenders of privacy arises when they argue for legal rights to blanket concealment not of communications, and not of embarrassing facts, but of facts that would be material to the willingness of other persons to transact with the concealer on terms favorable to him.

Comments

[Corey]

Or, if a university professor had previously brought negative publicity and embarassment on his school for anti-gay comments on his blog, should he be able to resist disclosure of that fact as somehow irrelevant to his later attempts to establish intellectual credibility on say... the Posner blog.

How's that for theoretically thinking Eric?

If a right to privacy is an interference on people's right to choose in the economic realm, then so is the undeniable existance of transaction costs and disparities in the distribution of bargaining power. It looks increasingly silly to argue for free economic choice when the overwhelming majority of employment and consumer contracts are un-negotiated, take it or leave it propositions.

I'm sure that in your small little world an HIV+ person is more "morally culpable" than the rest of us. You want to refer to the status of having a disease in terms of the past choices that you no doubt believe led to that status. Imagine the millions of victims of the worldwide AIDS epidemic collectively giving you the finger as they try and lead as normal and human a life as is left to them.

[Palooka]

"Indeed, you could view a privacy law as government interference with the right of people to choose with whom they do business."

That's a pretty apt description of the Civil Rights Act of 1964. Now do we want to repeal that, too?

[Peter Konefal]

The NYT has an elaborate and intriguing analysis of "class in America," analyzing how Americans have fared in terms of class position since WWII.

This is an intriguing topic, and one which I think deserves an analysis by you two.

Have neoliberal reforms (reagan/thatcher) benefitted most Americans?

How have classes fared since the 1950s? Many economists (Heilbroner et al) have presented startling evidence that real incomes have declined during the (1950-2000) period, despite (or perhaps because of) the radical productivity enhancements of the information age.

Perhaps it is too soon to deny Marx the last laugh...

[Rachel]

Judge Posner chides promoters of "privacy" because we are only high-mindedly doing what criminals do -- attempting to control information about ourselves for the purpose of deceit.

For me, the importance of keeping records private derives from the potential for distortion. The less people/companies/governments see and transmit (and aggregate) my identifying information, the less the chance of its distortion to the point that the information is inaccurate (or simply no longer correct).

In the area of information privacy, I am less concerned about revealing that Joe has HIV if he in fact does than I am about John having HIV if he in fact doesn't. "Privacy" for me is more about having enough control over one's personal information to ensure that it remains accurate and up to date.

[Marc Perkel]

Here's my thoughts on if Privacy is in the Constitution. I believe it is and this link points to my legal argument why.

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