Unpopular Privacy: What Must We Hide

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Why government should protect our privacy even when we would not.

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Privacy is a key to a host of goods of which moral self-respect, trusting relationships, and positions of responsibility are but a critical few. The “right to privacy” should be thought of, not just as a right to the privacy we may happen to want today, but as a right to the privacy we may need in order to flourish for a lifetime. The moral and legal resources of the nation are properly applied to insuring the protection of privacy, even the unpopular kind that may have to be forced on us.

At the present time, governments mandate privacy, and we mostly like it that way. Through common law, regulatory statutes, and constitutions, state and federal authorities ask that our neighbors refrain from peering into our bedroom windows, stealing our diaries, or publishing our secrets. These authorities demand that police obtain a warrant or court order before wiretapping or accessing stored email. They ask that schools, physicians, tax authorities, banks, and motor vehicle bureaus limit nonconsensual disclosure of personal information. They require lawyers, doctors, and corporate insiders to keep confidences.
What values prompt real and imagined privacy mandates? Can government mandate “unpopular” privacy?

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By “unpopular privacy,” I mean any kind of physical or informational privacy that is unwanted, disliked, not preferred, or resented by the people it is supposed to benefit or constrain. Should youthful Internet users be blocked from websites that collect sensitive personal information, for their own good? Should the law oblige us to forego Amazon.com since the giant consumer goods seller keeps track of our purchases and makes recommendations, or Gmail because it pitches ads to us based on words that appear in our private messages to family and friends? Should adults with intimate secrets be banned from publishing them? Is there a possible justification for laws that ban applications that monitor and store health information in the “cloud”?
When government mandates unpopular privacy, it acts paternalistically. Issues about “privacy paternalism” arise even in liberty-loving societies over issues as varied as seclusion, isolation, bodily exposure, confidentiality and data protection, nude dancing, Muslim attire, public health quarantine, super max prison cells, whether “race” counts as sensitive data, the confidentiality burdens of  professionals, social networking, online commerce, and “over-sharing” online.
Both liberals and feminists (with whom I identify) caution against privacy paternalism, out of fear of the ever-present subordinating potential of government compulsion. Yet sometimes regimes of imposed privacy nevertheless should be endorsed.
A range of scholars have recognized that society does and perhaps should impose duties of privacy on its members that benefit others. Sociologist Amitai Etzioni has urged the need to consider the existence of privacy duties that benefit the common good. Political theorist Jean Cohen has cautioned against privacy duties of the sort that formerly coerced silence for homosexuality in the military. Ian Ayres has provocatively defended the utility and constitutionality of a proposed law requiring that people who make donations to candidates for public office do so privately, on a strictly anonymous basis. A law targeting donors and coercing privacy constrains freedom. However, as Ayres points out, mandated donor privacy would further collective goals fit for a liberal democracy, including reducing political corruption and enabling donors freely to support whomever they please, without accountability to others.

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Fewer scholars have considered whether government should turn privacies into duties of self-care. Sigal R. Ben-Porath has broached the question, arguing that paternalistic policies of a wide array are justified when they advance civic equality, enhanced well-being, and expanded opportunity. In their recent book, Nudge, Cass Sunstein and Richard Thaler defend a non-intrusive type of state paternalism that self-consciously attempts to guide people in directions that will improve their lives without significantly impairing their choices. The authors argue that without such intervention, people will fall prey to procrastination, lack of self-control, information deficits, overreliance on rules of thumb, and cognitive biases familiar to behavioral economists: framing biases, status quo biases, loss aversion biases, and overconfidence. Government, they argue, can be a “choice architect” that uses cheap and easy strategies, such as default rules and product placement, to make it easier for people to make the most rational choices.
Like Sunstein and Thaler, but from an altogether different starting point, I defend a brand of state paternalism in my recent book, Unpopular Privacy. When justified, privacy paternalism protects individuals over the long term and does not amount to a wholesale invitation to a “nanny state” to enact oppressive laws so people cannot harm themselves. A liberal society concerned with treating persons with respect will want to arm its members with strategic advantages that affirm their human worth. To protect against the risks of unjust and excessive paternalism, I urge that we think of information and physical privacies as among the “foundational” human goods that make us better equipped for life in a free society.
If nothing else, as suggested by Judeo-Christian and early American traditions, society may well need a reinvigoration of reserve and discretion as a matter of personal ethical values. In an ethical defense of the practice of holding back information from friends and enemies, John Adams wrote in a diary entry dated August 20, 1770, that “discretion … is a necessary branch of wisdom, and so far from being immoral and unlawful, … it is a duty and a virtue.”
Anita L. Allen

Anita L. Allen is the Henry R. Silverman Professor of Law, Professor of Philosophy at the University of Pennsylvania, and author of Unpopular Privacy: What Must We Hide?.