 How should libertarians think about privacy? Privacy is obviously something that we prize very highly and we certainly sense that today privacy is very threatened But what are the ways philosophically to think about it? What are the structures in our thinking that we should use as libertarians about privacy? I'm not really going to answer the question. How should libertarians think about privacy? I'm just going to tell you what I think about privacy. You can decide for yourself whether you want to use it The first thing to do is define the subject matter. What is privacy? Privacy is a little bit like democracy. It's a word that people use for a whole host of good values So let's unpack what the values are that people are talking about when they use the word privacy There are about five or six and I'm going to focus on just one. That's the control sense But people use the word privacy For example to refer to autonomy recall it in the 1970s the Supreme Court cases about abortion Roe v. Wade Talked in terms of privacy, but of course, that's autonomy. That's in that in that case a woman's right to choose arguably What kinds of medical procedures she has what what her family planning situation is? That's one sense of privacy But it's not the one I'm going to focus on today Another is seclusion in the Olmstead case back in the late 20s Justice Brandeis talked about privacy as quote unquote the right to be let alone and just a few years ago The Federal Trade Commission instituted a do not call policy that was immensely popular Because people were so angry about getting telephone calls at home during the dinner hour They were interested in seclusion. That is being left alone by other people. Well, that's one version of privacy, too Another is personal security They're probably familiar with the the concept of identity fraud or often called identity theft People deal with that as a privacy problem We talked about the privacy problem when really the problem is people using your identity to defraud Financial services providers in the process. They give you a terrible financial reputation and ruin your credit score That privacy problem is really about personal financial security and personal reputational security There are also examples that are slightly gruesome where murders have happened Because people have gotten access to personal information about others their addresses There was a man named Lee and Liam you and some years ago Who stalked a girl at his high school for years and years and then went to a data provider to find out her address? He went to her home and killed her there an actress named Rebecca Schaefer out in California Was killed by a stalker after he got her address from the California Department of Motor Vehicles went to her house after that States across the country and the federal government passed all passed laws called drivers privacy protection acts Because they saw personal information being used to actually physically harm people Well, that's a dimension of privacy to or a privacy value personal security There's a dimension of privacy that you might call dignity or Anti-objectification That's people. It's more of a European sense of the word privacy And it's an anti-commercial sense in a way because it's people who don't like to be objectified commercially If you're just a target of marketing if people are collecting information about you for marketing purposes That offends that offends what they call their sense of privacy a Dignity dimension of privacy. Of course, there's fairness Sometimes when information about you is available widely It's used to make decisions that are wrong and people will talk about that as a privacy problem The Fair Credit Reporting Act is an example of a federal statute that's supposed to fix this problem It hasn't necessarily done so But that so many people think of as a privacy law because it controls information in the uses of information So that good decision-making happens It relies on one having good data about people and a well-tuned algorithm when we're talking about computers and technology That's kind of a privacy idea, too The main sense of privacy in the in the version of privacy that I think is strongest is the control sense of privacy Alan Weston in a great book called Privacy and Freedom in 1967 called privacy the claim of individuals or groups or Institutions to determine for themselves when how and to what extent information about them is communicated to others He went into a lot of the anthropology of privacy and I was really interested by his book because he wrote about the Toreg tribe Which is a tribe in Northern Africa? Fascinating in many respects because it's a Muslim tribe in which men wear veils They're called les en bleu the blue men because their their clothing is very dark blue And I don't actually actually comes off on their skin and terms in blue But the men in the society wear veils across their faces and there was anthropological study of how they wore their veils up high for Formal purposes down low among friends not at all among non Toreg people This is a way in precision of how they shared and withheld information based on specific social circumstances and thinking about privacy in terms of anthropology is really helpful actually because because we can think of our own use of clothing When do we where do we put our hemlines? How do we wear our shirt? What's the nature of the fabric we put on do we wear a hat or not when we wear a hat? Do we wear it high or low? These are all signals. It's information sharing and information withholding Sometimes we tell fibs to other people white lies Sometimes we withhold information altogether from people who might be interested in it These are common common social behaviors, and it's all part of privacy protection Even the spaces that we live in are designed for information sharing and withholding think about the layout of your house The bedrooms are apart from the common rooms and that's simply so that what happens in the bedroom can be relatively private to others Sometimes parents will choose the location of their room versus the children's rooms for distance so that they can get good sleep or Proximity so that they can make sure that the kids aren't sneaking out at night All this information sharing withholding is kind of the sociology or the anthropology of privacy And it's important I think to understand that privacy is important definitionally for our lives What we share with others defines us to them what we withhold it from me from others Also defines us as to them if we can't control information about ourselves We can't define ourselves instead. We're defined by some someone or something else and that's part of why privacy is so important socially and anthropologically The definition that I use of privacy is a little bit more precise than Alan Weston's and a little bit more legalistic I Think of privacy as the subjective condition that people enjoy when they have the power to protect information about themselves And when they use this power consistent with their interests and values Let me parse that out a little bit because it's a little bit complicated First privacy is a subjective condition. That is something that we define for ourselves It's not something that someone an outsider can say we have or we do not have that would be objective I decide for me what I want to share and what I want to withhold from others Think of some common examples of information that people treat as private very commonly medical information It is sometimes extremely private, but you can easily find Alternatives to privacy that people choose for example, they'll write about or even put up pictures of Surgeries that are very intimate or medical treatments. They've undergone They get some social benefit from sharing information about themselves and of course many medical Conditions are obvious just from the looking at them. So if we say categorically Objectively that medical information is inherently private. We're making mistake It's private to some people and other people actually benefit from sharing it or can't keep it private as a matter of physics Political information is another one where the subjectivity is is particularly clear to us a lot of people Good for them. Don't really want to talk about politics. They keep their politics to themselves other people put on silly hats and huge buttons and they put signs in their front yards ugly signs all add To advertise their political interest in their political thinking It's very subjective whether your politics are private or whether your politics or something you make public and with dozens Thousands other dimensions of your of your life. You decide whether or not you want to share it with other people So privacy is subjective that means by the way that Regulators can't decide what privacy Americans should have now They can certainly try to generalize about the kind of privacy we should have and they'll often be relatively accurate But they'll be wrong very often to and freeze in place values that might be continually changing with with just the ongoing rollout of history or with changes in technology The next part of that definition of privacy that's important to understand is power to control information That basically goes to the legal environment Do you have the power to control information about yourself or do you not? The law has dual conflicting effects on your power to control information Many laws do protect your power to control information for example when you go into your home Close the door and draw the blinds You've obscured information from the outside world. You've obscured you've prevented photons from traveling through your through your windows or walls outside so others can observe you and You've barred others from coming into your house The law backs you up and doing that the law of property does Because people can't come into your house without violating your property rights They trespass if they come in and observe what happens There's how common law like property helps protect privacy and backs up your choices to protect information about yourself Another law that does the same is the law of battery Every morning most of us put on some clothes before we go out in the world We do this for a number of reasons one is obviously temperature control You want to stay warm, but we also do it because we want to obscure the appearance of our bodies from others It's a very strong custom and most people harbor that custom as a personal desire to obscure from others what they see The law of battery means that when we go outside wearing clothes into the public Nobody can come up to us and take those clothes off of us and reveal What we meant to hide from others. There's another good example. Our law simply backs up our privacy protecting decisions There are many laws and we're getting into the realm of legislation here that do the opposite That is that prevent us from protecting information about ourselves for example Laws that are meant to legislation and programs that are meant to provide benefits to people often have very substantial privacy costs Let's say you've invited the government to provide Financial support to everybody in a community and part of that policy is that no one should fall below a certain level Below average support average income in the community If you want to implement that policy what you have to do is know the income of everybody in the community And so the cost the privacy cost of that Beneficial program is to collect information about the financial wherewithal of everybody in the community Let's say that a government program also wants to provide health care in the community The program has to know about the health care Certainly of the beneficiaries of the program and often also of others in the community so that it can provide the appropriate health care I'm fond of saying and it's not too unfair that the helping hand of government strips away privacy before it goes to work Of course, there are many other laws that strip away privacy Administration of the income tax for example makes it impossible for you To withhold from the government how much your income is it makes it impossible for you to withhold if you want to get your tax deductions Your housing situation Children charitable benefits medical expenses and many many other dimensions of your life This is the law stripping away privacy and making you unable to protect information about yourself There are many more examples, but the third part of this definition is really the hard part and That's exercise of control over information about yourself. That's consistent with your interests and values Now people develop their privacy interests myriad ways through experience Their their parents teach them things They're cultural they're all many many dimensions to the privacy values that we all hold But how we exercise them is sometimes difficult. We know how to do it in the real world That is putting on clothing. There are lots of customs. We have they were quite familiar with it, but we're good at But in the online environment, it's very hard to do it because it's an all-new world We actually don't understand how information moves in the online environment So we don't know how to put on digital clothes as it were the IP address that your computer has is Signaled to anyone any website that you visit Did you know that do you know that they collect it? Do you know that they can share it with anybody else and among all the collectors of this information? They can kind of figure out what you're all about Same with cookies cookies are a short script that your browser will collect and store on your computer It'll share the fact that you visited a website before This is often very helpful and it helps the website customize its products for you You see something that's interesting to you the first time you go there but the cookie will also serve as a tracking mechanism that tells that website about you and Allows the website holder to tell others about you add networks use cookies to track you across multiple websites You should just know about this and decide for yourself whether you want to be sharing information like this They're cookie controls in the major browsers and the other technologies coming online all the time to help you Control this information in the online environment, but most people still don't know how and haven't done much about it That's the big problem in the future going forward as technology continues to roll out We'll all struggle with how to protect privacy in this essentially new environment It's worth talking about these things in in technical terms We're very much used to photons and sound waves and even particulates how to control information We might not be Specifically thinking in terms of photons and sound waves But we know that if we want to want people to not see something we cover it up Literally stop photons from bouncing off it or stop photons from arriving at the eyes of others If we want not to be heard we lower our voices and that prevents sound waves from reaching the person or people That we don't want to hear things. How do you do that in the digital environment with sensors all around you? Sensors in being your phone your credit card and lots of other technologies that you use those sensors are sending information out to others And you don't know exactly where it's going so you don't know what to do and you don't know what the consequences are of it We're all going to learn about this stuff over the coming years decades and generations We're into the real key threats to privacy already and I think the number one threat to privacy is probably ignorance It's just not knowing where information goes We're pretty good at protecting privacy like I said here in the real world to meet space as the techies like to call it But in the online environment, it's very hard to protect information Privacy is really a product of personal responsibility That is taking charge of information about yourself Figuring out how these technologies work talking to other people Learning about their consequences and deciding for yourself what information you want to share and what information you don't want to share Be a good consumer be a smart user of technology Sometimes you should refuse to do things because of their privacy costs I do and I give myself lots of inconvenience that way But I feel I feel good having taken control of my personal information and protected my privacy you can do the same Government surveillance of course is one of the other major threats to privacy Now that's the idea and it's a simple one The government wants to find out specific things about you and specific things about people It's certainly something we call on government to do in the context of legitimate law enforcement So there's no argument that government surveillance should be banned entirely But government surveillance is a key threat to privacy and it's a threat that's growing again as we emerge into this high-tech environment The technology Allows much more to be collected than ever before it's put into digital form that that makes it easy to copy to Transfer to store for extremely long period of time and then to share widely if that's the interest of anybody government surveillance is Generally subject to the Fourth Amendment though the Fourth Amendment has gotten very weak over time It's not up to the task currently under Supreme Court doctrine to really protect us But we have to be aware all the time as most people are that surveillance is a real and genuine threat to privacy a Second threat that many people won't recognize so easily is Administrative collection of information. I talked about the helping hand of government stripping away privacy before it goes to work That problem has grown greater and greater both with the growth of government and with the growth of technology with the increase of technology Because government agencies now collect more information than they used to and they're also more able to keep it and share it and use it more than ever Their dossier building capability is is greater than ever before and still growing That's a threat to our privacy, of course the growth of government and the growth of the capability of government to collect and store information It's worth recognizing Another layer of privacy threat that I've called anti privacy law and regulation That's law and regulation that prevents you from protecting privacy There are examples of varying stripes The US government was was a principal opponent of the use of encryption a few years back maybe more than a decade now Encryption is a way of protecting information that's in transit or in storage By essentially scrambling it using a mathematical algorithm So that it would be very very hard for somebody else to get access to what you've put in your communication The government opposed encryption because it would have hindered some of its law enforcement But in some not having access to encryption for all people communicating and storing data would actually have reduced our privacy and reduced our security eventually the government Gave way on this essentially it couldn't stop encryption because it was talking about stopping ideas algorithms math But here the here's an example where the government was an opponent of privacy protection that people could use to protect themselves Another example that's worth just knowing about is what's called the E911 mandate several years ago As cell phones were just becoming popular the federal government decided through the Federal Communications Commission That people should be able to have 911 service on their mobile telephones well ordinary 911 service works by Telling the operator that you dial on 911 where your phone is That's not so easy to do when your phone is mobile and the not E911 requirement Required telephone service providers mobile phone providers to figure out where you were in case you made a 911 call Of course mobile phone companies have to know where your phone is in order to to communicate with your phone But this process got more precise and was speeded along by the E911 mandate It helps in the name of protecting people It helped undo privacy and location information at an early stage in the development of the mobile phone and that technology There are many more examples not just in the technology area Take the tax treatment of health benefits current law Gives a tax advantage to employers for providing health insurance as a As part of the the payment that that workers get rather than just giving all the money to the workers so that the worker can buy his or her health insurance on their own What does that do it puts the employer in a position of knowing about the health insurance benefits and Often the health status of the employee Really, it should be none of the employer's business But so often employers are deeply engaged and involved in the provision of health care that they actually know health information that they really probably shouldn't Then of course you can think about the anti-privacy Infrastructure that government has helped create over years and a good example is the social security number The social security number was created shortly after the Social Security Act was passed And it was created just to administer the social security program But very quickly the federal government began adopting the social security number for more uses including tracking the sale of bonds if my memory serves and later for tax identification now The social security number and older people have a card that says not for identification purposes more and more in the late 60s and early 70s was used for financial transactions and essentially pushed out into the private sector Which rapidly adopted it for purposes of credit reporting and other financial services and now just about everything Hinges on the use of the social security number. What you have there is a national identifier That is an identifier that tells computers how to track you Names don't work so well because so many names repeat themselves over time throughout a large country like ours But a number like the SSN serves as a national identifier and makes it easier for governments and corporations To know exactly who they're dealing with every time they do deal with you Whether they have any business knowing who you are or not And so it's part of the infrastructure the information infrastructure that builds databases about us for use by governments And by corporations sometimes for our benefit and sometimes not I've talked a lot about the changes in technology and how they affect privacy And that's the most important thing to understand going forward Digitization is the abstraction of analog information like photons and sound waves and letters and numbers and symbols Into ones and zeros and the ones and zeros make it very easy to store information Make it very easy to copy information Mary very easy to process information in new ways including data mining Data mining is the idea of finding new patterns in data that allow you to predict more accurately. What's coming in the future? There are lots of good uses for data mining and some that aren't so good But the power of this abstraction the power of digitization of ones and zeros is something that will affect privacy Profoundly and it's important to pay attention to that going forward Make yourself aware of all the sensors that you're using for example your credit card your phone your computer These are all sensors that are feeding databases of information often for the better, but not always for the better There are several upshots from digitization One that I think is important to privacy is that government surveillance is easier than ever We are pouring data about ourselves out into databases often privately held But many of them are publicly held and the government can access and this is important to realize government can often access the privately held data Fourth amendment doctrine currently holds that information shared with a third party Isn't something that we have a fourth amendment interest in so our bank records having been shared We can't claim fourth amendment rights in perhaps our Communications online having been provided to a third party your ISP and your email service provider Aren't subject to fourth amendment protections that we can enforce These are serious problems and the third party doctrine is probably the most troubling part of fourth amendment law right now Given that in today's technological era. We're moving all kinds of personal information about ourselves through third parties sharing that information Giving up our fourth amendment rights the court might say Privacy is an essential part of exercising your liberty, but it's not a right It's something that you create in the shelter of other rights like the fourth amendment And as I said the fourth amendment is under siege these days and it's weakened compared compared to the technological context We're living in Ultimately if you want privacy You're going to have to protect it yourself And you should call on your neighbors and the businesses that you deal with to help you protect your privacy. I Hope that what I've said today is helpful and you're thinking Maybe this is the way libertarians should think about privacy certainly is the way I think about privacy