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Do We Have a Right to Privacy?

Privacy is hard to define, so it isn't clear we have a right to it

A small and colorful calendar iconPosted on:August 26, 2023

Do we have a right to privacy?

I’m going to go with no.

And that will freak people out, but I’ll explain.

But first, we need to define what a “right” is — or at least what I mean by the word.

Okay — a “right” is anything that you can claim for yourself, as long as it doesn’t interfere with anyone else’s claims to their rights. That seems a bit recursive, but it isn’t. It makes sense if you consider it.

For instance, you have the right to say what you want. Saying things doesn’t interfere with any other claim that anyone else can make. You have the right to life and bodily safety — therefore, no one can punch you in the nose. No one else can claim the right to use force (another important word fraught with meaning) against your person. You have the right to your property — no one can claim a right to something that belongs to you, as that would interfere with your claim of owning the property.

That seems pretty clear to me. You can do what you please as long as it doesn’t interfere with someone else doing as they please.

That works for 99.9% of the situations in life. As for the 0.1% of cases, well, we work that out, no? For instance, do you have the right to blare music in your apartment at 2:00am? Technically, yes, but we generally agree that you can’t do that. We’ve agreed that you don’t have the right to say words that harm or endanger others. There are tons of examples like that, but I’m not going to discuss those here. We’ll leave the corner cases for another day.

Something to note, then, is that you can’t claim as a right something that someone else has to provide for you. For instance, you don’t have the right to healthcare, as you can’t force anyone to provide it to you. You don’t have the right to take an airplane flight because that requires all kinds of people to do things to make that happen. You don’t have the right to a jury trial because that would require others to do something for you.

Wait, what? Of course you have a right to a jury trial! It says so in the Constitution! So what is going on here? In English, the word “right” isn’t really specific enough. We use it to mean a bunch of things that really aren’t, strictly speaking, rights.

So what I’ll do is distinguish between “rights” and “civil rights”. “Rights” are defined above. I’ll define “civil rights” as anything that is codified in law as being guaranteed to you by the government. We live in a democracy, and we agree to abide by the Constitution and the laws that result from the structure provided by it. So we have the civil right to vote, the civil right to an attorney, and the civil right to many things that we, as a democracy, have decided to implement for ourselves. Thus, you have the civil right to a jury trial. You don’t have the right to walk into someone else’s building, but we have agreed that you have the civil right to enter any publicly open business.

So that leads to “the right to privacy”. The Googler defines privacy as ”the state or condition of being free from being observed or disturbed by other people.” Well, you don’t have that in all cases, sorry. If you want to be out on the public street, you can’t demand that others’ not observe you. That’s an absurd claim. You can’t even claim that someone can’t stand on a public sidewalk and look into the picture window of your house. So strictly speaking, no, you don’t have the right not to be observed. You might be sitting on a park bench trying to read a book, and a group of people might be having a rowdy game of ultimate frisbee nearby, making it difficult for you to concentrate. You can’t tell them to stop disturbing you. So you don’t have the right not to be disturbed.

So you don’t have the “right to privacy”.

And this gets even more complicated. One might think that if Alice and Bob are in their apartment, then their conversations there are private. But if I am sitting in my apartment, and the conversation is clearly heard by me through the HVAC vents, then am I somehow violating Alice and Bob’s “right to privacy”? I don’t think so. What if you drop your Social Security card on the street and I pick it up and see your Social Security number. Have I violated your right to privacy? No, of course not.

So, no, you don’t have the “right to privacy”.

But of course, we do have the civil right to “unreasonable searches and seizures”. We’ve all agreed that this is something that we grant each other by law. Clearly, individuals have no right to take your stuff, but we have agreed that there are cases where we as a people have the civil right to take your things pursuant, generally, to a criminal investigation. We agree that if the government is going to do that, they have to have a good reason. And that is fine. It is necessary for the good order of society. We can, and do, quibble over what constitutes a good reason, but we all agree that if there is a good reason, the government can search your stuff.

So the fallout from that is the notion that the government doesn’t have the right to poke around in your “private affairs”. So what is actually private?

Things that are on your property should remain private. If they leave your property, they are no longer private. So a conversation in your house that can be heard on the street isn’t private because that conversation has left your property. An email sent out from your computer, traveling unencrypted on the wires of the Internet, is not private. Neither is a phone conversation that travels on telephone wires or over radio waves. They have left your property and are no longer private.

Now, of course, we have agreed that many of those things are in fact… what, exactly? Not private, but rather “protected from intrusion”. We have agreed that a telephone call cannot be observed by the government without a good reason and a process for agreeing that the reason is good. So we have a “civil right to not be observed when making a phone call”. We agree that your mail can’t be opened. One has a right to own a powerful microphone capable of picking up conversations at long distances, but we have agreed that you don’t have the civil right to point it at people surreptitiously. But all that isn’t the same thing as “the right to privacy”.

There are tons of corner cases and other situations that illustrate the point. We do have civil rights surrounding information about us, but as noted above, a “civil right” is not always a “right”.

Privacy is actually kind of hard to define, so it seems clear that you can’t claim a right to it. The term “right to privacy” has come to be a substitute for “the civil right not to be subject unreasonable intrusion into our affairs,” for lack of a better term. We agree that there are certain things that should not be subject to government scrutiny without due process and a good reason. We can and do quibble over what those things are and how the process should work, but that general agreement is a critical part of living in a free society.

But in the end, there is, strictly speaking, no “right to privacy”.