In my class presentation, I described how respecting the legal doctrines of property and contract rather than privacy-specific torts, statutes or regulations is the best way to afford protection for the values of privacy that we enjoy.
This approach, advocated by Professor Amy Peikoff in a 2008 article and upcoming book, first requires a distinction between decisional and informational privacy, given how vague and nebulous the term privacy has become.
According to Peikoff, the freedoms related to decisional privacy—reproductive, family planning or end-of-life decisions—have also been under-protected. Instead of being viewed as penumbras or emanations of the Bill of Rights, they should instead be seen as corollaries of the fundamental right to life. But this is a separate topic from the informational privacy (henceforth – “privacy”) that I address presently.
Privacy is not a right — it’s a value that must be earned
The basic principle is that that one must earn, through one’s productive effort, the resources necessary to create states of privacy. As Peikoff notes, “privacy among people living in close proximity  is a relatively recent phenomenon, a luxury made possible only with the wealth produced in an industrialized society.” This notion rings true when one considers that before A can intrude on B’s seclusion and solitude, B must own or lease the dwelling to which he retired. Similarly, before A can disclose B’s medical history, the information contained therein must be created through B’s visit to a doctor, a testing lab and transcription. Protection of the privacy interests, therefore, should come from the protection of activities that create the values rather than legislative fiat or society’s expectations.
In the world of informational privacy, I see two broad categories of activities that can raise legal claims. The first is when an individual explicitly or knowingly divulges information about themselves to others. The second is when others collect information about an individual without his knowledge or consent. The issues in both of these categories can be resolved through contract and property law, respectively. Conversely, common law torts or statutes that aim that protect one person’s privacy without consideration of property or liberty, necessarily conflicts with another person’s individual rights.
The application of these principles is patent in the area of workplace privacy. In the United States, many terms of employment contracts, such as minimum wages, working hours and unemployment insurance are dictated by state statutes and regulations. Today, many advocate for further limitation on job seekers and employers to contract in the name of workplace privacy “rights”. Examples of these include prohibitions on data collection, testing and the monitoring of employee personal communications.
Personal communications on the job — You’re on notice
As Imran Malik points out in a recent post, “technology slowly ends traditional notions of working 9-5 [and employees are expected to] blur the distinctions between company time and personal time.” With telecommuting and social networking becoming more prevelant, Malik urges that businesses respect employees handling personal matters on company time and company equipment as a “necessity“.
However, despite our innate fear of Big-Brother-style monitoring, it would be unwise to grant special protection to personal calls, text, tweets or e-mails sent from work. First, this would undoubtedly limit property rights of the employer in controlling how its business office space, computers or smartphones are used. Second, employment is always conditioned upon acceptance of various company policies and rules, assented to by new hires during HR orientations. The use of company-issued phone, computer or network for personal use may be very convenient. However, the employee is always on notice of possible monitoring when using equipment belonging to the employer.
Employee data collection & testing — It’s voluntary
Workplace privacy advocates have been recently outraged by employers forcing workers to expose their social networking content by either divulging log-in credentials to sites such as Facebook or Twitter or by requiring “over-the-shoulder” browsing. Statutes banning polygraphs, psychological or drug testing, have been enacted or proposed.
While these measures attempt to ensure a minimal level of privacy for employees by banning actions seen by some as demoralizing, demeaning or stressful, they are ultimately harmful for individual rights of Americans.
The first crucial point to recognize is that none of these employment practices use force to obtain information. Even the threat of job loss for non-compliance involves a voluntary, even if uneasy, choice by the employee.
Legislative bans on employee background checks or testing often ignore the immense importance of the practice for some businesses. Beyond evaluating performance or rule compliance, testing the body or mind of an airline pilot, a doctor or a police officer may be a life-and-death matter. In many other vocations, like handlers of large sums of money or pit brokers, single costly mistakes can cripple a company. This necessitates due diligence and deterrence of employee misbehavior.
In responding to blunt legislative instruments, firms that rely on the practices must lobby for specific exceptions to these laws. To ensure the security of their assets and the continuity of their concerns, these firms essentially operate not by right but by permission.
Dealing with violators — K/P
Strong protection of individual rights incorporates protecting privacy interests. If information voluntarily disclosed for a specific reason or with certain expectations is misused, the terms of the disclosure should govern remedies. This breach of contract principle is strongly protected in the area of corporate non-disclosure agreements and trade secret law, and should be extended to individuals.
The collection of data without an individual’s consent or knowledge is more complicated and controversial. The current judicial approach, first announced by Justice Harlan in Katz v. United States, determines a violation based on a “reasonable expectations of privacy.” Both in criminal and civil law, this non-objective, pliable standard has defined the privacy interests of Americans for a generation.
A better approach would recognize that the right to gain, keep, use and dispose of property is a fundamental corollary of the right to life. Strong property rights would provide individuals with legal remedies against appropriation, collection of facts through trespass, and generally progress American civilization toward a society of privacy.