Government Protection

While many people argue that we all have a fundamental right to privacy, the Constitution offers almost no protection in the realm of privacy. The closest thing to privacy law in the Constitution is the Fourth Amendment, which protects us from unreasonable search and seizure. The writers of the Constitution simply did not address privacy between individuals or offer any citizen a broader protection of privacy. Was this an oversight, or did our founding fathers simply not feel privacy was a constitutional right? Since the writing of the Constitution, the government has created hundreds of specific laws affecting our privacy, but nothing has been done to create a broader framework for privacy law. This is probably because there is no good way to create a broad framework for privacy law. By definition, privacy law can be based only on degree, not on principle.

The only appropriate role for government in protecting our privacy is in protecting our information within the government itself. The government is in the unique position of being able to force us to provide information; therefore, it must provide some basic protections to ensure that information is treated appropriately. No other organization can force us to provide information. From local law enforcement to the IRS, the government has a need to obtain and keep information about us to operate effectively. We tell the IRS how much money we made so they know how much we should pay in taxes. The DMV needs to know our height, age, and other personal information to issue driver's licenses. Numerous offices of the government have specific information about us that is necessary for them to perform their functions. I might argue that some of these functions are unnecessary, or that there is too much information in too many places. But the government must force us to give some basic information to be able to operate effectively. The government must therefore protect us from itself by keeping that information as private as possible.

Government does have a responsibility to protect us from itself when it comes to privacy, but what about protecting us from each other? The Video Privacy Protection Act was passed after a newspaper published a list of videos rented by a Supreme Court nominee, but there's still no law addressing magazine subscriptions or book purchases. That means a bookstore can legally tell someone what books I bought, but it would be criminal for Blockbuster to tell someone what movies I have rented. There's nothing unique about video rentals, but public outcry and politics create specific laws to fix specific problems. In this case, public outcry and political power put a law in place to protect consumer information at video stores. The consumer doesn't have any more of a right to privacy than the video store has in this case. What if the video store decided they wanted consumers to keep private their store's name and the movies that store rents to a consumer? I rent a video from a store, and I can tell people what movie I rented and from which store, but the store can't legally tell anyone what I rented or who I am. What gives the consumer more of a "right" to that information than the video store? In this case the stores don't care and the consumers do, but can that be how we determine what is legal and illegal?

What legal protections do we need from each other that common law doesn't already provide? The government protects us from fraud, so if someone claims they will keep our information private and then proceeds to give that information out, then that person (or company) has committed fraud. If we have a contract with someone regarding the use of our information and they violate that contract, you can take them to court, just as you could if they violate any term of a contract. Any other protection we ask the government to provide will force the government to draw arbitrary lines between right and wrong based on the degree. Take the example of the Video Privacy Protection Act, where a video store gave a man's video rental history to a reporter. When the man signed up, did the store pledge to keep that information confidential, or was the issue of privacy not even addressed? If the store committed to keeping that information private, then the man could sue the store for violation of their contract, and his damages would be his loss of privacy. If nothing was mentioned in their agreement, then the store didn't really do anything wrong.

As someone who rents videos, I would rather go to a store that keeps my information private than one that gives out that same information publicly, but that's between the store and me. I do not need the government's help in making that decision. The case where rental information was given out to the press caused public outrage. In that situation, the store would likely lose customers and change their policies as a result of that incident. The store had no real incentive to give out the information to the press in the first place. If a store did have a compelling reason to give out the information, the store may be more resistant to change. Perhaps they'd be willing to compensate the consumer by offering lower prices or an occasional free movie. Maybe they'd do nothing, but consumers could then go to other stores that did agree to keep their information private. Other stores may decide their customers are very privacy sensitive and offer an ironclad privacy policy for their protection. In other words, a natural balance would come as the businesses and the consumers voted with their dollars. In this case, it's likely that most consumers would opt out of having their information shared, if given an option, or rent from a store that keeps rental information private because the customers value their privacy over getting a few free rentals.

This solution to the video rental problem is simply a free market scenario where the market, without any government involvement, solves the problem through changes in policies and practices to react to consumer demands. Since each consumer has the right not to deal with any given business or other individual, we all have the ultimate veto power in any exchange of information - we can simply decide to not deal with that business or person, thereby not giving up any private information. If the cost to your privacy is relatively small and the value you place on a particular service is very high, you may decide the benefit outweighs the cost and use the service despite your privacy concerns. Privacy is just another factor to take into consideration when determining how and with whom you do business.

Some might argue that this free market solution is a dream, and that in reality we need the government to step in and offer more protections. They might argue that companies won't really respond to consumer demand, and we'll be left with too few choices and no privacy. History has consistently proven this view to be incorrect. There are too many choices out there to force us into doing business with any one company. Consumers will continue to value their privacy, and companies will be forced to be sensitive to that value. Many good changes continue to take place that help us protect our privacy, both offline and online. We now have better browsers that offer us more control over how we send information. Companies began releasing privacy policies well before Congress mandated the practice. Many companies that don't have any legal requirement to do so post their privacy policies with a link right on their home page. People are sensitive about privacy, and too many people feel this way for any good company to ignore the issue.

Government involvement in privacy between private individuals and companies is easily the biggest unknown in the future of privacy. Government could continue its attempts to protect our privacy, or it could leave the market to provide the appropriate level of protection. Will the government stick to its job of protecting us from itself, or will it continue to try to protect us from each other?