Rozeff on Privacy: A Defense of Rothbard

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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:

“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 one’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 ‘right to 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.”

Before I rise to Rothbard’s defense against Rozeff’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 “argument from argument,” or “argumentation ethics,” 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: “… should a government … be empowered to monitor these conversations in the first place?” 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: “Suppose 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.”

But Rothbard, I think, answers this in the material cited above: “…there is no such thing as a right to privacy except the right to protect one’s property from invasion.” 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 “war,” in effect. The private police would attempt to avail themselves of “offensive” weapons destroying privacy, while individuals who want to keep their secrets, well, secret, would try adopt “defensive” modalities in order to curtail such initiatives.

Rozeff asks: “Are your conversations your property?” 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 “privacy” 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 else’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 offices—private ones, not public ones—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: “The duty to defend advertising injuries caused by junk faxes: an analysis of privacy, spam, detection and blackmail.” Whittier Law Review, Vol. 27, No. 4, pp. 925–949.

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:

“According 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 violate—not their privacy “rights” which do not exist, but rather—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.

“So, 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.”

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 heart’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 “rights.”

9:06 pm on December 13, 2012
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