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Routing 
Properly defined, privacy is the subjective con-dition people experience when they have power tocontrol information about themselves. Becauseprivacy is subjective, government regulation in thename of privacy can only create confidentiality orsecrecy rules based on politicians’ and bureau-crats’ guesses about what “privacy” should look like. The most important, but elusive, part of trueprivacy protection is consumers’ exercise of powerover information about themselves. Ultimately,privacy is a product of personal responsibility andautonomy.Law has dual, conflicting effects on privacy.Law is essential for protecting privacy because itbacks individuals’ privacy-protecting decisions,but much legislation plays a significant role inundermining privacy. Indeed, the principal threatsto privacy come from governments.These threats fall into three classes. The first,government surveillance, is a profound and well-recognized threat to privacy. Governments alsoundermine privacy by collecting, cataloging, andsharing personal information about citizens foradministrative purposes. Less acknowledged—but no less important—is the wide variety of lawsand regulations that degrade citizens’ power toprotect privacy as they see fit.Whether it is anti-privacy regulation, data col-lection required by all manner of government pro-grams, or outright surveillance, the relationship of governments to privacy is typically antagonistic.Privacy thrives when aware and empowered citi-zens are able to exercise control of informationabout themselves. Thoughtful policymakersshould recognize the detrimental effects manyprograms have on consumers’ privacy andrespond with proposals that reduce the role of government in individuals’ lives.
Understanding Privacy—and  the Real Threats to It
by Jim Harper
_____________________________________________________________________________________________________
 Jim Harper is the editor of 
Privacilla.org
and director of information policy studies at the Cato Institute.
Executive Summary
No. 520August 4, 2004
 
Introduction
The rapid growth of the Internet in thelate 1990s stimulated an important civic dis-cussion of privacy and information practices.Though the Internet spawned the discussion,the privacy debate now extends across theeconomy—in financial services, health care,and many other areas.The information practices now being reex-amined evolved over decades under princi-ples that are far older. So, even though theInternet brought privacy to the fore, the dis-cussion should not happen at “Internetspeed.” Too many innovations and consumerbenefits are at stake. As it continues tomature, the privacy debate should be carriedout deliberately and thoughtfully, by openminds, with an aim toward developing soundlong-term policies.The majority of proposals in Congress,the states, and international bodies havefocused on the private sector to achieve pri-vacy goals.
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This reflects a consensus amongpoliticians and other elites that technologyand big business are the greatest privacythreats we face. It is a consensus reinforced byadvocates of regulation who have usedloaded terms like “Big Browser”
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to fomentprivacy concerns.But George Orwell coined the term “BigBrother” as a warning against the invasivepower of governments, not the private sec-tor.
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Governments are aggressive collectors,users, and sometime abusers of personal andprivate information.Although privacy threats from businessand new technology are real, the clearestmenace to privacy comes from governments.Unlike other social institutions, governmentsextract information using the force of law.Governments alone can change the rulesunder which they hold information—with-out recourse to those aggrieved. And govern-ments routinely frustrate opportunities forindividuals to protect privacy as they see fit.Where a web of laws and incentives constrainprivate-sector use and misuse of data, gov-ernment databases hang like a sword of Damocles over the privacy and civil libertiesof citizens.Conclusions about privacy should not bedrawn lightly or hastily. The subject is toocomplicated for that. Good policy requiresreasoned analysis and thought. Examinationreveals that true privacy is threatened mostby government action and regulation.
Defining Privacy
An essential starting point, long missingin discussions of privacy, is a definition of theconcept itself. The word “privacy” is usedcasually to describe many concerns in themodern world, and few concepts have beendiscussed so much without ever being solidlydefined. If privacy is going to be a serioustopic in information policy—somethingmore than a catch-word in interest-grouppolitics—it needs definition. The attemptbelow is a serious run at it, but more work from other perspectives will be worthwhile:Privacy is a state of affairs or conditionhaving to do with the amount of personalinformation about individuals that is knownto others. People maintain privacy by con-trolling who receives information aboutthem and on what terms. Privacy
is the subjec-tive condition that people experience when theyhave power to control information about them-selves and when they exercise that power consistent with their interests and values.
A Personal, Subjective Condition
Importantly, privacy is a subjective condi-tion. It is individual and personal. One per-son cannot decide for another what his or hersense of privacy is or should be.To illustrate this, one has only to make afew comparisons: Some Americans are veryreluctant to share their political beliefs, refus-ing to divulge any of their leanings or thevotes they have cast. They keep their politicsprivate. Their neighbors may post yard signs,wear brightly colored pins, and go door-to-door to show affiliation with a political partyor candidate. The latter have a sense of priva-
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Although privacythreats frombusiness and newtechnology arereal, the clearestmenace to privacycomes fromgovernments.
 
cy that does not require withholding infor-mation about their politics.Health information is often deemedintensely private. Many people closely guardit, sharing it only with doctors, close relatives,and loved ones. Others consent to have theirconditions, surgeries, and treatments broad-cast on national television and the Internetto help others in the same situation,
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or morecommonly, relish the attention, flowers, andcards they receive when an illness or injury ispublicized. Privacy varies in thousands of ways from individual to individual and fromcircumstance to circumstance.An important conclusion flows from theobservation that privacy is a subjective condi-tion: government regulation in the name of pri-vacy is based only on politicians’ and bureau-crats’ guesses about what “privacy” should look like. Such rules can only ape the privacy-pro-tecting decisions that millions of consumersmake in billions of daily actions, inactions,transactions, and refusals. Americans maketheir highly individual privacy judgments basedon culture, upbringing, experience, and theindividualized costs and benefits of interactingand sharing information.The best way to protect true privacy is toleave decisions about how personal informa-tion is used to the people affected. Politicalapproaches take privacy decisionmakingpower away from the people.At its heart, privacy is a product of autono-my and personal responsibility. Only empow-ered, knowledgeable citizens can formulateand protect true privacy for themselves, just asthey individually pursue other conditions, likehappiness, piety, or success.
The Role of Law
The legal environment determines whetherpeople have the power to control informationabout themselves. Law has dual, conflictingeffects on privacy: Much law protects the pri-vacy-enhancing decisions people make. Otherlaws undermine individuals’ power to controlinformation.Various laws foster privacy by enforcing indi-viduals’ privacy-protecting decisions. Contractlaw, for example, allows consumers to enterinto enforceable agreements that restrict thesharing of information involved in or derivedfrom transactions.
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Thanks to contract, oneperson may buy foot powder from another andelicit as part of the deal an enforceable promisenever to tell another soul about the purchase. Inaddition to explicit terms, privacy-protectingconfidentiality has long been an implied termin many contracts for professional and fiducia-ry services, like law, medicine, and financial ser-vices. Alas, legislation and regulation of recentvintage have undermined those protections.
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Many laws protect privacy in other areas.Real property law and the law of trespassmean that people have legal backing whenthey retreat into their homes, close theirdoors, and pull their curtains to prevent oth-ers from seeing what goes on within. The lawof battery means that people may put onclothes and have all the assurance law cangive that others will not remove their cloth-ing and reveal the appearance of their bodieswithout permission.Whereas most laws protect privacy indi-rectly, a body of U.S. state law protects priva-cy directly. The privacy torts provide baselineprotection for privacy by giving a cause of action to anyone whose privacy is invaded inany of four ways.
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The four privacy causes of action, available in nearly every state, are
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Intrusion upon seclusion or solitude, orinto private affairs;
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Public disclosure of embarrassing pri-vate facts;
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Publicity that places a person in a falselight in the public eye; and
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Appropriation of one’s name or likeness.While those torts do not mesh cleanly withprivacy as defined here, they are established,baseline, privacy-protecting law.Law is essential for protecting privacy, butmuch legislation plays a significant role inundermining privacy. Dozens of regulatory,tax, and entitlement programs deprive citi-zens of the ability to shield information fromothers. And as discussed below, governments
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The best way toprotect trueprivacy is to leavedecisions abouthow personalinformation isused to thepeople affected.
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