Walter (Block) in essence was asked this very interesting question: If a boy invited a girl to his apartment and she asked to take a shower and did so, what grounds does she have for action against the boy if he secretly photographs her? In a Blockian libertarian panarchy, she has no privacy rights. That’s up jump street. In fact, if the boy then blackmailed the girl over the photos, she also would have no right to protest, since the Block world is the Rothbard world in the blackmail case. But if she has no rights against blackmail, she surely has no rights against demanding that he hand over the photo or stealing them when he’s not looking or beating him up to get them.
Nevertheless, I am astonished to read that Walter argued that the boy and girl had a “tacit agreement” that such photographing is out of order and not to be done without her permission. And this he says comes “From culture, from expectations, that are typical when a guy invites a girl to his abode.” These suppositions are outside the Blockian libertarian law that he expounds on other occasions. If there is aggression in taking a photograph, where is it? Do custom and expectations transform something that involves no physical violence against the girl into violent aggression? That’s an unacceptable leap from the strict libertarian postulate to which Walter typically adheres strictly. That opens the door to all sorts of subjective notions in a host of other possible situations. Walter has here virtually defined a privacy right without calling it by that name.
I think we have to accept that the non-aggression principle combined with no physical aggression implies that the girl has no right of privacy and no right of action against the boy for secretly photographing her, and he is under no obligation or duty to tell her he’s going to do that. The NAP, as I’ve pointed out before, is not the be-all and end-all of all “good” law-making.
Different panarchies will have different treatments of situations like this. Clearly there will be a demand for jurists to handle individual cases that cannot be decided based upon more general laws.
Our society has discovered a large amount of law via cases. What is the law in this case, and how does it accord or not accord with libertarian ideas? Judges might decide using existing concepts. Rather than exploring the case law, I’ll point out that it so happens that Congress passed a law in 2004: “The Video Voyeurism Prevention Act prohibits the photographing or videotaping of a naked person without his or her permission in a gym, tanning salon, dressing room or anywhere else where one expects a ‘reasonable expectation of privacy.’ Violators can expect fines of up to $100,000 and/or up to a year in prison.”
Congress formalized Walter’s escape from the too tight confines of the NAP. It even used the notion of “expectation of privacy”.
I’d have preferred to see judges develop legal grounds and theories concerning what exactly is wrong with such photographing. Maybe the laws on nuisances would have sufficed. Other grounds can be found too as I’ve argued in the past. See here, here, here and here.5:05 pm on May 2, 2017 Email Michael S. Rozeff