What Is Privacy?
According to Webster's, "privacy" is "the state of being private;" and "private" is that which either (a) "belongs to some particular person or person," or (b) is "restricted to some particular person or persons."
Definition (a) is clearly a reference to some form of property. What belongs to me are my belongings. I can use the word "belong" in the metaphorical sense of property if I say to my daughter, "You belong to our family." Since my daughter is not my property, what I mean when I say my daughter belongs to our family is that my daughter is restricted to membership in one particular family.
Looking closely at (b) we see that a thing, a person, or an activity can be restricted to some other particular person or persons in three ways: by definition, by tradition, or by law. My daughter's family membership happens to fit all three. She is a member of our family by definition, by tradition, and by law.
What we are most concerned with is the last option - the law. How is a thing, a person, or an activity restricted to some other particular person or persons by the law?[2]
Once again, the first thought and example that comes to mind is property. Things are restricted to some person or persons through ownership. By enforcing legal contracts (say, that of purchasing a house), the government restricts the ownership of that home to the buyer. So in restricting the ownership of a house to the buyer, the government protects the privacy of that buyer.
The restriction of one person to another person has a long history - mostly of abuse. Not so long ago in the United States, some persons (slaves and, in some instances, women and children) could be "restricted" to other persons as property or chattel. Since the Fifth Amendment clearly protects "life, liberty or property" these types of restriction cannot be constitutional.[3]
There are, however, many traditional types of voluntary restrictions between two parties. The most obvious examples are marital and business contracts where one person consents to limit and share certain of his or her activities solely with another person.[4]
This brings us to the third, the most difficult and contentious, aspect: the legal restriction of private activities. We can break this down into two questions: (1) How does a government's restriction of a person's activities make those activities private? And (2) how can the state insure that those private activities are protected?
In order to fully answer question (1) we would first have to settle a centuries old dispute: Does the law forbid everything it does not specifically allow or does the law allow everything it does not specifically forbid? For the purposes of this discussion, we will assume that the American tradition follows the second interpretation of the nature of the law; i.e., private activities are lawful unless they are specifically prohibited.
Notice what follows from this assumption. Private acts cannot be restricted, in any manner, by the state. In a sense, all legal acts of individuals are private acts and the government, since the acts are legal, may restrict none of them. State restriction of a person's activity does not make the activity private - it makes it illegal - and, thus, public.
Another example of a contract will help make this clear. If I agree to build your house and you agree to pay me to build your house then I restrict my activity to the pounding of nails, etc., on your property. The choice and the activity are private. The state has nothing to do with the private nature of our agreement. The government intervenes only if I fail to perform the promised activity or you fail to pay.
There are, of course, exceptions to this general rule. Sometimes the state does directly restrict our activities - keeping our private activities isolated to specific private places. This usually occurs out of concern for public health, public safety, or public peace. But these restrictions, which appear to be exceptions to the rule that all individual activity is private activity, exist only on the basis of the principle that there is no privacy without property.
Here are some examples of these exceptions and how the exceptions prove the rule. I may be naked when I take a shower in my home or apartment but I may not run naked through a public square. For reasons of public health and tranquility, my nakedness, and thus my privacy, is restricted by the state to my abode. Similarly, I may drink alcohol in my home, or at the local pub, but I may not drink in my car while driving on a public road. In this instance, for reasons of public safety, the government restricts my activity to a designated area, and, once again, in restricting my activity the government restricts my privacy.
This is the important point: without the existence and protection of private property there is no place for the government to restrict my private activities to. This point needs to be reemphasized. Whenever the state restricts a private activity, thus limiting the activity to a specific site, if there is no private property (no specific site) then there is no place in which that activity can occur. Prisons are not private.[5]
Imagine we live in a regime that has promised to guarantee to each of its citizens an absolute right to a (naked) shower. All private showers are immediately confiscated because someone might be able to get an unauthorized look. The regime builds a series of single stall showers in a tightly controlled environment. Guards are stationed at various locations to insure privacy. But guards are only human - and curious - and they might steal a glance. The guards must have supervisors. But the supervisors might collude with the guards to take a peak, so we will need someone else to watch the watchers' watchers. And so on, ad infinitum.
The moral of this story is that it is naive to assert the state can protect our privacy without protecting the intervening instrument of private property. In a free state, there is no more efficient and effective vehicle that the government can use to protect privacy than by enforcing the right to private property.
We can now begin to answer some of the questions we have been considering in Part 2. (1) How does a government's restriction of a person's activities make those activities private? The answer, leaving aside the narrow issue of public health and safety, is that it does not and it cannot. Generally speaking, the state's restrictions of a person's activities make those activities illegal and public - rather than private. Even the Rose Bowl is a private event. I can buy a ticket and go to the game or not. My participation, and everyone else's participation, in the game is a private activity. A speech given in a public square is a private event. Both the speaker and the members of the audience are free to quit the activity at will. The event may be called "public;" but the decision to attend is private. The restriction of the participants' activity to the event is self-imposed. A truly public meeting would be one in which the state forced all of its members to attend. [6]
(2) How can the state insure that private activities are protected? The answer should be obvious: only by protecting private property. Property is tangible and easily defined. This makes property, relative to an abstract concept like privacy, easy to protect. And this leads us to the answer to the question, "What is privacy?" Privacy is an amorphous and intimate concept.[7] But property is not. The government cannot guarantee our right to privacy, without protecting our right to property, because each of us continually and constantly redefines what privacy is as we go about the day-to-day activities of our lives.
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