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Subject Area: Political Theory

Privacy and the Law - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Privacy and the Law

Ruth Gavison

  • Yale Law School

“Privacy and the Limits of Law.” Yale Law Journal 89(January 1980):421–471.

Reductionists err in thinking that claims about privacy can be reduced to other claims: Gavison argues that privacy is a distinct value worth protecting legally.

Privacy has three irreducible components. Someone loses privacy to the extent that others (1) gain information about him (loss of secrecy), (2) pay attention to him (loses anonymity), or (3) gain physical access to him (loses solitude). All three criteria can be combined in one concept which we can call accessibility. If an individual is totally inaccessible to others, he would maintain perfect privacy.

Gavison's conception of privacy is opposed to other more general conceptions that see privacy as the right to be left alone or which equate invasions of privacy with assaults on human dignity. The first idea is too broad—it would cover virtually everything—while the latter is false (e.g. being forced to beg to survive may violate one's dignity without a loss of privacy. Also, privacy is a claim to noninterference with one's personal decisions misses the point, since one's objection to certain privacy violations (e.g. a central data bank) have little to do with the personal nature of the information acquired.

To see the value of privacy requires a functional analysis (i.e. we must see to what extent privacy promotes other things we value). Clearly, both total privacy and non-privacy are undesirable. Some degree of privacy is central to realizing an individual's goals under any theory of individual development. Privacy helps us to promote learning, creating, practicing, in that it enables one to concentrate and make mistakes with less pressure; and it helps to promote liberty in that it allows one to do certain things without fear of hostile or unpleasant reactions from others.

But, if there is some social norm which privacy allows one to violate, why not change the norms if we think they are undesirable or eliminate privacy if the norms are desirable? We cannot, however, change positive morality so easily, and privacy allows nonconformists to protect their lives against excess pressure. Thus Gavison argues against those like Posner and Epstein who see privacy in such situations as merely the opportunity to deprive others of information. Privacy in these instances, insists the author, comes about in the interstices between the need for diversity and the hostility that such diversity often provokes.

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Reductionists, basing their argument on present day legal decisions, claim there is no distinct value of privacy. The author argues this approach is biased since the lack of coherence in judicial decisions can be explained by other facts—namely that other interests in addition to privacy have been invoked in the decisions. Furthermore, the reductionists approach is biased since it studies only actual court decisions. Yet there are strong disincentives for not going to court over privacy violations. These disincentives are threefold: law is a public mechanism and this strongly dilutes the point of using legal means to rectify privacy violations; also many people don't know about privacy violations and finally the remedies, such as rewarding monetary damages, may be totally inadequate given the psychological damage.

Finally, the reductionist approach makes privacy seem like a recent notion, since this approach only focuses on cases which invoke the privacy concept. But in fact the need for privacy is virtually coextensive with the human condition.

Gavison thinks her account, by beginning with extra-legal concepts, can show privacy to be a coherent concept, and thus will help to explain both the actual interest in, costs of, and functions of, laws involving privacy.

Given the above, it follows that a strong case can be made for the law containing an explicit commitment to privacy. Losses of privacy are generally undesirable. We need to reform the parts of the legal system which deal with privacy but do not as yet explicitly recognize this fact. Such a commitment to privacy would also give us protection against future invasions which are likely to occur given the increasing technological means of invasion.