July 13, 2013
Don’t get me wrong. I am a BIG fan of Edward Snowden, Bradley Manning, Julian Assange, Daniel Ellsberg and all other whistleblowers who have undermined the legitimacy of the state apparatus. I go further; no one is a greater supporter of these heroic men than me. So when I say there is no right to privacy, this should not be interpreted as in any way a criticism of them. Rather I am attempting to call into account numerous libertarians, all of whom should know better, when they write in support of these magnificent men and say things like: “The liberty of which I write is the right to privacy: the right to be left alone. The Framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it.”
There is no right to privacy; none at all. It is not a negative right, all of which are supported by libertarian theory; e.g., the right not to be molested, murdered, raped, etc. Rather, the so called right to privacy is a so called “positive right,” as in the “right” to food, clothing, shelter, welfare, etc. That is, it is no right at all; rather the “right” to privacy is an aspect of wealth. As Murray N. Rothbard (The Ethics of Liberty, chapter 16) made clear, there is only a right to private property, not privacy:
It might, however, be charged that Smith does not have the right to print such a statement, because Jones has a “right to privacy” (his “human” right) which Smith does not have the right to violate. But is there really such a right to privacy? How can there be? How can there be a right to prevent Smith by force from disseminating knowledge which he possesses? Surely there can be no such right. Smith owns his own body and therefore has the property right to own the knowledge he has inside his head, including his knowledge about Jones. And therefore he has the corollary right to print and disseminate that knowledge. In short, as in the case of the “human right” to free speech, there is no such thing as a right to privacy except the right to protect one’s property from invasion. The only right “to privacy” is the right to protect one’s property from being invaded by someone else. In brief, no one has the right to burgle someone else’s home, or to wiretap someone’s phone lines. Wiretapping is properly a crime not because of some vague and woolly “invasion of a ‘right to privacy’,” but because it is an invasion of the property right of the person being wiretapped.
The government, of course, has no right to invade our privacy, since it has no rights at all. It should not exist. Period. It is an illegitimate institution, since it initiates violence against innocent people. Therefore, it can have no right to do anything. Anything. A forteriori, the state has no right to privacy, either. And this for two reasons. First, is has no rights of any kind, since it is an illicit institution. Therefore, it cannot have any privacy “rights.” Second, even if it did have some rights, it could not possibly have a right to privacy, since there is and can be no such thing. As a corollary, we need pay no attention to its “secret” classifications, apart of course from pragmatic or utilitarian considerations: Edward Snowden’s personal life has been threatened by these criminals; this evil institution still has a lot of power. But as a matter of deontology, we are free to ignore statist “secret” classifications.
But suppose a private individual were to invade our privacy without violating our private property rights. Would he have a right to do that? Yes, at least insofar as I understand the libertarian perspective. The paparazzi have a right to take pictures of movie stars, professional athletes, without permission, provided only they do not violate private property rights. If the streets and sidewalks were privately owned (I make a case for that in this book, The Privatization of Roads and Highways: Human and Economic Factors; Auburn, AL: The Mises Institute; available for free here), their owners would presumably supply an environment desired by customers. If they wanted to attract famous camera-shy people to their property, it is to be expected that they would protect them from the shutterbugs. If not, not. The market would determine these sorts of things. In a forthcoming book in my Defending the Undefendable series, the first of which is available for free here, I shall be devoting a chapter to the Peeping Tom who looks at people who would prefer not to be seen. For a more scholarly treatment of this issue, I recommend the following article: Block, Walter, Stephan Kinsella and Roy Whitehead. 2006. “The duty to defend advertising injuries caused by junk faxes: an analysis of privacy, spam, detection and blackmail.” Whittier Law Review, Vol. 27, No. 4, pp. 925-949.
All men of good will owe a great debt of gratitude to those who told truth to power, preeminently Edward Snowden, Bradley Manning, Julian Assange and Daniel Ellsberg. When and if the present rash of statist murder ever ceases they are the people who will have done more than pretty much anyone else to stop it. We must all take our hats off to them. However, to claim that there is a right to privacy is to misunderstand the libertarian philosophy, the last best hope for our prosperity, and even the very survival of mankind. It does us our movement no good to mischaracterize libertarianism in this very proper libertarian outpouring of appreciation for these whistle-blowers who very properly denigrated and exposed governmental attacks on our privacy. The state should not reduce our privacy. The state should not be doing much of anything at all. But private incursions into privacy, as long as achieved without private property rights violations, are licit under libertarian law.
Privacy is a benefit, not a right. It is a benefit that the market, when and if it is freed, will confer on those of us who wish it.