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Thoughts On Privacy

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Originally posted by Paul from NoodleFood,

Among the many good lectures at the recent Front Range Objectivism Weekend Law Conference was the pair of talks given by Amy Peikoff on "Privacy Rights". In a nutshell, her position (which I agree with) is that the so-called "right" to privacy does not exist as a separate right, and that cases involving privacy issues can and should instead be dealt with by traditional laws on property rights, right to contract, etc.

Diana briefly summarized Amy's views in an earlier blog post:

Privacy is a good -- like food, music, or love. 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.

However, during the Q&A and (a lively informal follow-up standing-in-the-hallway bull session), we spent a great deal of time discussing one interesting concrete hypothetical case:

Consider two neighbors Alice and Ben, each residing on their own adjacent private property plots. Alice is standing on her property, and she sees or hears events taking place in her neighbor Ben's house. Alice then publishes what she learns on her popular blog, to Ben's detriment. (For instance, she overhears Ben discussing the details of a commercial trade secret with a co-worker.) Alice does not physically step onto Ben's property; all the information she gains is from sound waves or light photons emananting from Ben's property onto her property. Can Ben successfully sue her for publishing his secret? (We'll assume that it's easily proven that Alice was the one who released the secret and that there's a provable harm.)

Under current law, there's a principle called "reasonable expectation of privacy" on one's property. So if Ben took the usual precautions to keep his conversation private (i.e., closed the windows, shut the windowshades, etc.), and Alice used unusual technical means (such as special amplifying microphones) to eavesdrop, then Alice would be liable. But if Ben carelessly left his window open such that any random passerby could overhear his conversation, then the release of information would be his fault, and Alice would not be liable.

However, Amy Peikoff argued that the concept of "reasonable expectation of privacy" was ill-founded. Nonetheless, she did support the standard of "unaided senses" as the dividing line as to whether there was a rights-violation or not. So if Ben took measures so that Alice using her "unaided senses" could not see/hear what was going on inside his house, then that should be sufficient. If Alice were then to use special equipment to gather information about the events in Ben's house and proceeded to disclose it to others, then by that standard that would be a violation of Ben's rights.

So the central question in the follow-up discussion was can one defend the "unaided senses" standard as a corollary of property rights, without having to invoke a separate right to a "reasonable expectation of privacy"? (During the conference, Amy proposed one possible defense, but we learned later that she changed her mind on its merits.)

Now there are some folks (whom my friend Andrew Breese pejoratively refers to as "photon mystics") who take the position that if any photons (or sound waves) travelled from Ben's property to Alice's, then Alice can do whatever she wants with the information contained within. If Ben doesn't like that, then it's up to him to "harden" his house with lead shielding, special soundproof walls, or whatever it takes to prevent any leakage of information. Hence according to the "photon mystic" theory, if Alice uses special technology to gather some information from the ether despite Ben's best technical efforts, then it's too bad for Ben; he has no legal recourse.

I disagree with the "photon mystic" viewpoint (although I must confess that in the past I had some sympathy for this line of argument), and I think there is a way to preserve the "unaided senses" standard without having to invoke any pre-existing "reasonable expectation of privacy". The following is my theory alone, and any errors should not be attributed to Amy Peikoff or anyone else:

My theory takes some time-tested concepts from the common law (specifically the common law tort of nuisance) and uses them to formulate some wider principles which also subsume these types of alleged privacy violations.

The current (and I believe correct) law on nuisance is as follows: If neighbors Alice and Ben are sitting on their own respective private property, and Ben is having a normal outdoor barbecue and a little bit of the smoke and cooking aroma drifts onto Alice's property, then under normal circumstances Alice cannot make a claim of nuisance against Ben for such a minor incursion of smoke onto her property.

The law correctly recognizes that in the context of normal residential life, neighbors will be routinely subjected to sights and sounds from adjacent property owners, and that's just part of life. It is not reasonable to expect Ben to take extraordinary measures to completely prevent any sights, sounds, aromas, etc. whatsover that originate on his property from impinging on Alice's property. Only when those sights/sounds/aromas cause a "substantial interference" with Alice's "use and enjoyment" of her property would this meet the criteria for the tort of nuisance and hence constitute a violation of Alice's property rights.

Hence, if Ben were to play the radio softly in his backyard at 3 in the afternoon that would be legally permissible, but Ben were to blast his backyard stereo system at 3 in the morning so that Alice couldn't sleep that would constitute nuisance.

The other significant provision of nuisance law is the way it handles the so-called "hypersensitive neighbor". Hence, if Ben played his radio at a level that that would not be a nuisance to a normal neighbor, but Alice was hypersensitive to sound and goes into seizures at that particular decibel level, then that's Alice's problem, not Ben's. Alice is the one that should take special measures to prevent painful sounds from reaching her ears in those circumstances; Ben is not required to adjust his actions to suit Alice's unusual hypersensitive state. As long as Ben keeps the sound level down to the point that it would not interfere with a normally-sensitive neighbor, then he has done his part.

So the principles here are:

<1> Ben does not need to prevent all sights/sounds/smells originating on his property for reaching Alice's property. That would be an unreasonable burden. He only needs to take measures that would be reasonable, i.e., would not cause substantial interference with Alice's use and enjoyment of her property.

<2> The standard imposed on Ben for levels of sight/sound/smell is what would bother a hypothetical neighbor Alice of normal sensitivity, not a hypersensitive Alice.

Now we can apply these principles to the cases of alleged privacy invasion, to reach the "unaided senses" standard.

Suppose that Ben is conducting business in his own house that he wishes to remain private, and he doesn't wish neighbor Alice to blab about it to the world.

Ben should not be required to "harden" his house with expensive lead shields and soundproof insulation to prevent all sights/sounds/infrared radiation originating on his property from entering Alice's property. That would be an unreasonable demand on Ben, given the context of normal life in a residential neighborhood.

Instead, if he takes reasonable measures so that a normally sensitive Alice (i.e., with her unaided senses) cannot see or hear what's going on inside Ben's house, then Ben has fulfilled his legal requirement to protect his privacy.

Furthermore, Ben is not required to protect against a hypersensitive Alice, especially an Alice that has deliberately made herself hypersensitive by employing special high-tech microphones or infrared cameras capable of penetrating normal brick walls, etc.

If Ben takes the usual protective measures against normally-sensitive neighbors and Alice deliberately makes herself hypersensitive in order to gather information about Ben, then she is causing substantial interference with Ben's use and enjoyment of his property, and hence violating Ben's property rights.

Summary: By applying the "substantial interference" standard and the "normal sensitivity" standard previously validated for the tort of nuisance, we end up with the "unaided senses" standard for these cases of alleged neighbor-to-neighbor privacy violations. But everything still falls under the general principles governing property rights, without having to invoke a pre-existing "reasonable expectation of privacy".

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