WHAT IS PRIVACY?

Checking out at a number of websites during lunch, the boys and girls over at Diana Hsieh's Noodle Food raised a interesting subject about which they are confused.  What is privacy, and how should the law protect it?

I'm not sure there is much the law should do to protect a person's privacy per se.  Privacy is essentially secrecy.  It is the control of information and the restriction of its dissemination to preclude public disclosure.  It is incumbent upon a person who wants to keep a matter private to take the necessary measures to prevent it from becoming public.  This is because once information enters the public domain, nothing but an assault upon free speech can stop anyone from learning about it.

Therefore privacy, at bottom, does not exist except for the physical effort a person makes to keep information confidential.  Once a person fails in this effort, privacy is gone.  Once lost, it is forever lost.  As dire as that fact may be, no one is obliged maintain a person's privacy (absent a commitment to do so, such as the person's lawyer or a doctor with whom he has a fiduciary relationship).  In other words, a person has no right of privacy that the public at large is required to respect.

However, this does not mean that others can interfere with a person's effort to keep a matter private.  For example, no one has a right to flip through my checkbook register if I leave open on top of my desk.  If I keep personal information secure through either my personal control or on my property, then that information is rightly private because nothing short of assault or trespass can disclose it to another.  And that's where the wrong lies if someone violates my privacy -- a transgression against my person or my property had to occur first.  If I then suffer loss because of the public disclosure of a private matter, then that is at least part of the measure of the damage the assault or trespass caused me.

This is also why my neighbor cannot use a spotlight to illuminate my bedroom at night to see what I'm doing there.  However, if I turn the light on while my curtains are open, then I can't complain if my neighbor sees what I have exposed to him.  This, in a thumbnail, is how the common law prohibitions against assault and trespass safeguard privacy without recognizing a right to privacy.

Next, nuisance and privacy ...