Privacy, Property and the #SurveillanceState

Have you ever wondered why the right to privacy seems to have risen in importance even as rights in property have diminished?

It is not altogether coincidental.

“The ‘right to privacy’,” says legal scholar Arline Mann, “is a misguided attempt to save some shreds of certain [legitimate] rights while retaining a way to eviscerate others.”

Yes, we each of us need privacy. But our need for something is not a claim on someone else. Privacy is a good, not a right. It’s not something to be recognised, it’s something to be earned.

Civilisation itself is the progress toward a society of privacy, argues Ayn Rand. “The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”

A right to privacy however while a compelling idea, is not persuasive. The right to privacy, if it exists, “stands as a bulwark against meddlesome other people, especially governments,” says philosopher Tibor Machan.  And when all other bulwarks are being banished, that is not unimportant.

But while we have the legitimate right to take actions to protect our privacy, and while our own private communications for example remain our property as long as we wish them to, this doesn’t make privacy itself an actual right. The broader concept which a privacy right obscures is our legitimate property rights which, says Arline Mann, so-called privacy rights –which are inherently vague and conflict-ridden – are actually designed to obscure.

“The claim that some information is private (or that some observation is an intrusion) is [itself] a value judgment,” says Amy Peikoff,

often substantially dependent upon the individual’s personal preferences. In contrast, the law should just concern factual, perceptual judgments about whether force was initiated or not… Consequently, upholding a right to privacy means that people cannot protect their privacy to whatever degree they please, but rather must depend upon the government’s idea of a ‘reasonable expectation of privacy,’ as set by community standards and limited by community welfare.

My reasonable expectation of privacy is clearly not John Key’s. Or (since she helped shape today’s system of surveillance) Helen Clark’s. Their standards are not mine, and no law or legal principle should be built on such vagaries.

“Privacy is a good -- like food, music, or love,” concludes Amy Peikoff. “So while we have the right to take the actions required to secure our privacy via judicious use of our property and voluntary contracts with others, we have no direct right to privacy per se. . . Laws designed to protect privacy undermine genuine rights to property and contract.”

Like the property we have in our communications. Protect that – properly protect that – and not just this election but the whole debate about surveillance would be very different indeed.