WHAT IS PRIVACY? PART II

Yesterday I made the point that there is no right to privacy.  What each of us has instead are the Lockean rights of life, liberty, and property which are sufficient to secure privacy, if it is desired.  In other words if I protect information from public disclosure on my person or on my property (which includes entrusting it to another person, like a lawyer or a doctor, who has committed to safeguarding that information), no one can lawfully assault me or trespass upon property to obtain that information.  However, if I leave the blueprint to my latest invention out on the street, no one who finds the information is obligated to keep it secret for me.  I have no right of privacy independent of the sanctity of my person and property.

A question arises as to how far must I go to protect information as private?  Securing it on my property sounds reasonable in principle, but the reality is that my neighbor can without any physical trespass see and hear things I am doing on my property.  If he can learn something about me I want private without taking any active measures to do so, other than being within view or earshot of what I'm doing on my property, he has not committed any assault or trespass against me.  So it would seem that the mere fact that I have kept a matter on my property does not secure its privacy.

And it shouldn't.  Privacy exists only if I take effective measures to secure information from public disclosure short of assault, trespass, and fraud (which is a species of assault or trespass accomplished by deceit rather than physical force).  It is in this context that my spotlight example from yesterday is salient.  My neighbor cannot shine a spotlight into my unilluminated bedroom to see what I am doing there at night.  That is trespass.  However, if I turn the light on while the curtains are open, I no (legal) complaint against my neighbor if he sees what I have exposed to him and then reports that to others.  (It would be unethical of him to do so, unless I am plainly reckless in my exposure -- that is, if I don't care about my privacy, why should he?)

Which brings us to another common law concept, nuisance.  Do I invade my neighbor's privacy if I commit acts upon my property that either he cannot reasonably ignore?  For example, I'm a night owl and blast rap music into the ether at three o'clock in the morning.  Again this is not a matter of privacy.  It is a matter of property.  My neighbor has a right to quiet enjoyment of his property.  I cannot lawfully interfere with that right.  I do so if I pollute his property with loud noise, especially at a time when people normally sleep.  If I do so, I have created a nuisance.

This is how the common law prohibitions against assault, trespass, and nuisance protect privacy without creating a right to privacy that would unilaterally impose legal obligations upon the public to protect the confidentiality of an individual's information.  Trade secret law contrasted with patent law is an excellent example of how these common law principles work best to secure privacy without expanding the role of the state.

Comments

[Jason]

Bill,

I see where your going with commonlaw and how that means we dont need a formal right of privacy, but I dont understand how patent law figures in. That's the opposite of privacy because you have to make your invention known to the public.

Jason

[Bill]

Hi, Jason.

There was a lot packed into my contrast of trade secret against patents that may not be apparent to those who haven't had to deal with these laws.

If you have an invention you want to keep to yourself, you get the benefit of trade secret laws so long as you make the effort to effectively keep your invention a secret. Therefore, the law protects the privacy of your property if someone obtains information about your invention through improper means.

Patent law works differently. If you make the sufficient public disclosure of your invention and are granted a patent, you get the right to benefit from your invention to the exclusion of all others for a set number of years. That means, contrary to trade secret law, everyone must respect the privacy of property despite the actual fact that all information about it is public and you did nothing to prevent it from becoming public.

This may be an unusual way to look at patents, but I think doing so shows why patents are inherently statist intrusions upon the free flow of information in a society by creating what is in essence a positivist right of privacy as opposed to privacy that is subsidiary to the sanctity of the person and property.

Regards, Bill