Posner presented an economic analysis of privacy. His reason for doing so has to do with his interest in the law: he wanted to see if the law assigns legal rights in a way that maximizes wealth. But there is a lot of interest in his account of privacy apart from his further claims about the law.
I said that I especially liked the way Posner described a side of our lives that is often missing in philosophical discussions of values and ethics: the part that has to do with transactions and exchanges with others. Mill, for instance, was focused on a very inward, intellectual part of life: deciding what is the best life for oneself. Other people enter into Mill’s account largely as sources of examples about how to live. He showed little interest in social interaction and even less in exchanges.
I also liked the remarks about the differences between modern and pre-modern societies. Again, I think that many of those who attempt to explain why privacy is important simply assume that features of our lives reflect essential bits of human psychology. Comparing our societies with others has a nice way of revealing our parochial assumptions.
Prof. Brown, on the other hand, issued a stark warning about these kind of analyses. It is fairly easy to come up with repugnant but wealth maximizing assignments of rights, especially when you imagine interactions among people with different wealth or power. (Prof. Brown was not saying that Posner himself had taken a repugnant position, though she did mention some very odd ones.) I take it that her point was that those who advocate this kind of view have to explain why they are not committed to the repugnant conclusions.
Dylan had similar misgivings about the absence of any serious discussion of imbalances of power. For instance, if workers are systematically disadvantaged compared with employers, maybe they should have privacy rights as a way of rectifying the balance. I take it that his point was that we don’t know what to think without looking at power relationships and, since this kind of analysis leaves them out, it is defective.
Prof. Brown made a case for privacy rights that turned on an assumption about how people process information. She said that our assessment of others is heavily influenced by the order in which we hear facts about them. If the first thing we hear is discreditable or embarrassing, that will color the rest of what we hear. She might have added that some people have irrational prejudices: some people don’t want to hire even a highly qualified gay person, for instance.
We didn’t have to make stuff up: we had an actual case! Annie’s great aunt was hired by mistake: the mining company thought she was a man. They wouldn’t have hired her if they had known the truth because the miners were superstitious: they believed that having a woman in the mine would lead to accidents.
Anyway, it seems to me that when there is a kind of information that we can predict will not be rationally processed, then there is an economic case for granting the individual control of that information. Doing so means that people who are homosexual or female will be judged based on their merits rather than prejudices and superstitions. As Ian pointed out, that’s consistent with Posner’s treatment of personal information that has no economic value on p. 400.
It’s an interesting question whether anti-discrimination law works that way.** The section on privacy in Posner’s book The Economics of Justice is followed by one on anti-discrimination law. I guess I should read that … later.
Posner treated privacy as an intermediate (his term) or instrumental (mine) good. He didn’t directly deny that it is important on its own, but he strongly suggested that most of its importance is captured by the instrumental uses he detailed.
Brendan was convinced and made the case that privacy doesn’t have any ultimate value at all. He asked us to consider a loss of privacy that would make no difference to your behavior or interactions with others: it happens without your knowledge and the person who invades your privacy will never do anything with the information. He just has it.
Brendan was indifferent between being secretly observed like this and enjoying the privacy that he actually has. Akshata and I were not. Akshata had a way of advancing the argument; I thought it remained pretty much at standstill with Brendan thinking one thing and us thinking the opposite. But I didn’t fully hear Akshata out. I hope she’s right!
Posner notes a discrepancy between judicial decisions about privacy and privacy legislation. Judges, he claims, tend to follow the economic logic he laid out while legislatures do not.
Here’s a guess as to why this might be happening. Judges usually hear cases in which money is at stake. It’s expensive to bring a lawsuit, so those who bring them generally have an economic stake in the case. They hope to gain more by the lawsuit than their legal costs or they hope to prevent a loss that exceeds their legal costs.
So it’s not surprising that judges typically hear cases where a privacy is primarily an intermediate value. And it makes sense that they decide those cases accordingly. But it doesn’t follow that privacy is only or predominantly an intermediate value. That just reflects the fact that the law is primarily a forum for those whose wealth is at stake.
Q. Are you saying that legislatures are arenas of pure philosophical concern, where economic interests are kept outside the doors? A. Uh, no. I can’t explain why legislation would be different. I’m just speculating about why judges wind up doing what they do.