ABSTRACT
The phrase "right to privacy" is a bit of a chameleon. Its uses range from the right to be free from physical invasion of one's home or person,2 the right to make certain personal and intimate decisions free from government interference,3 and the right to prevent commercial "publicity" of one's own name and image,4 to name three.5 My concern is with none of these, but rather with the right to privacy defined, to use the Supreme Court's recent words, as the right to "control of information concerning an individual's person. " 6
This view has been challenged, fairly persuasively, on two fronts. First, a
rights-based philosophy of law literature has exhibited a marked skepticism about the existence and usefulness of privacy rights. 1° For example, Judith Jarvis Thomson argues that moral claims to privacy rights can be reduced to other rights, such as property rights and rights over the person. 11 That is, there is no "right to privacy" as such, and we should stop talking about it. Richard Epstein makes the related point that privacy rights, to the extent they exist at all, are second-order rights; unlike property rights and the right to prevent trespass, privacy rights are not essential to the maintenance of a free society. 12 This skepticism, of course, has not gone unanswered, although it is probably fair to say that no one has yet succeeded in offering a coherent statement of the normative interests protected by a "privacy" right to prevent dissemination of personal information. 13
The second attack has come from law and economics. Economic insight, such as that of George Stigler, Jack Hirshleifer, and, in particular, Judge Richard Posner, who has written a half-dozen articles on the subject, 14 adds fodder to the skepticism regarding informational privacy. In grossly oversimplified terms, the consensus of the law and economics literature is this: more information is better, and restrictions on the flow of information in the name of privacy are generally not social wealth maximizing, because they inhibit decisionmaking, increase transaction costs, and encourage fraud. 15
A corollary of this economic analysis is that the common law, which from the get-go (despite the best efforts of Warren and Brandeis) has been hostile to privacy claims, is efficient. 16 In contrast, statutory privacy law-which over the past twenty years has increased privacy rights in personal information-has generated criticism from economists, a criticism that remains rhetorical given that rent-seeking explanations for privacy legislation have not been successful.17
