Your Right to Privacy: Its Meaning

The idea of a right to privacy needlessly divides libertarians. Walter Block, libertarian friend and professional colleague, has cleared up this matter definitively when he wrote

“…there is no such thing as a right to privacy except the right to protect one’s property from invasion.”

In other words, the right to privacy to have meaning has to mean a right a person has that his property not be invaded because he and he alone owns it; and that ownership right entails a right to protect that property from invasion.

In other words, in the exception cited by Walter rests the kernel of an appropriate concept of right to privacy. It only needs some elaboration, which is to specify the property that is being referred to when we speak of an invasion of privacy.

I believe Walter deviates from his precision of 2013 when he writes point blank “…there is no right to privacy…” and omits the all-important exception that he earlier articulated.

In 2013, he also deviated from his own appropriate solution when he defined a right to privacy as a right to prevent the spread of information: “But is there really such a right to privacy? How can there be? How can there be a right to prevent Smith by force from disseminating knowledge which he possesses? Surely there can be no such right.”

However, this is a straw man argument. An invasion of privacy that is an invasion of property is not a matter of Smith having knowledge that he may disseminate. It is a matter of Smith having gotten such knowledge by an invasion of property that wasn’t his.

So, with that put to rest, let’s return to the question of much greater substance and importance. What invasions of property are to be termed invasions of privacy?

I’ve written about that also in 2013:

“The ‘right to be let alone’ is the ‘right to privacy’. What does it mean to invoke this right ‘as against the Government’? It means at a minimum what the Fourth Amendment says: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…'”

There is no abstract or free-standing right to privacy mentioned in the Fourth Amendment. The Framers did not succumb to the fallacy that Walter has correctly alerted us to, following in the pathbreaking footsteps of Murray Rothbard. The right spelled out here refers specifically to kinds of property. To accommodate new technology and means of communication, we need to apply this statement of the right to privacy in new contexts. This can be done. That blog of mine quoted from a 1928 ruling handed down by Justice Brandeis in his dissent. He too equated the right of privacy to invasion of property such as listed in the Fourth Amendment, which he was defending.

Invasion of privacy through invasion of the property associated with privacy is an extremely serious matter. Suppose that employment is conditioned on such information which is passed on to government. Suppose that banks report on personal transactions. Suppose that a police state takes hold in which invasion of privacy permeates the entire society.

That is what we are talking about here and what we’re concerned about in contemporary America when we examine the FBI, the CIA and NSA domestic spying.

Government invasions of our papers, persons, houses and effects, today in the 21st century means invasions of our communications, e-mails, telephone calls and business dealings, our electronic communications. We have a reasonable expectation under our Constitution or simply under the basic idea that we have property rights, that the government be disallowed from such invasions except under strict conditions that we allow, that include proper warrants for probable cause. Without that expectation, we are in a situation of opening the door to a police state. It is surely meaningful to speak of a right to privacy in the sense I am explaining, and it’s the same sense that I wrote of 4 years ago and that Walter wrote of 4 years ago when he suggested that the right to privacy existed only as a property right. This is such an important property right that, like freedom of speech, we should not excise it from our lexicon. It is a handy way of telling people that they have a right against government invasions of their property, and it has an historical basis.


8:24 pm on November 29, 2017