Note: This essay was originally posted at The Libertarian on June 26th, 2013. I will be posting an essay there, hopefully, each week on Wednesday. Then later many of these essays will be posted here at my own blog usually the next week or so. I hope you will take a look at all the fine writers at The Libertarian and read my post over there.
The Libertarian is a new site formed to spread the word on libertarian ideas to the UK and then to the Americans also. (almost biblical ain’t it?) There are minarchists, anarchists, left-anarchists, and other associated libertarian types in the group. So far, I think this mostly youngish group of writers have produced some fine work. While I tend to blog in short and simple posts, several there have posted some really good “long form essays” like those that one often sees at Mises.org.
Back when I started writing about economics and political theory, I never thought I would be blogging at a site that was seeking to unify liberty loving folks across the spectrum. Yes they even have minarchists! But interactions on twitter (hello friends) has tended to mellow me a bit and I have enjoyed talking to the folks on the road to market anarchy but not yet able to let go of the myth that government is needed or even tolerable.
Anyway, the following is my take on the “right to privacy” from a Rothbardian prospective. I am of the opinion that many will find this one controversial to some degree. But then, what is not controversial in these latter days of the Empire?
The NSA, Privacy, and Principle
Almost everyone has seen that reporter Glenn Greenwald, the Guardian Newspaper, and other journalists have been publishing astonishing materials supplied by the whistle blower Edward Snowden which shows how the NSA has been spying on the American people to a degree unheard of in history. Some are comparing the NSA’s actions to those of the East German Stasi; but the Stasi did not have the modern technology and internet to work with in its day.
It seems that the NSA has been capturing and recording nearly all electronic communications of the American public and possibly those of almost everyone in other countries as well. Only a short time ago the official story was that the NSA never did such things except on a case by case basis overseen by the FISA courts. Oh my, lied to again by my government. The Obama administration is, of course, claiming that all of this is necessary to keep us safe in a world full of terrorists looking to blow up our loved ones; but then they always tell me that it is for my own good.
The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. ~H. L. Mencken
The NSA and other “intelligence” agencies are looking to see which of us might be doing anything unusual. They are looking at “metadata” and looking for links that would tell them that a citizen might be unusual in some way or connected to some out of favor group. But it is even more than that, the NSA is spying on and blackmailing top government and military members according to another NSA whistle blower. This is one large and evil web that the NSA has spun.
Now that almost everyone is upset about this invasion of their privacy by the various intelligence agencies of various governments around the world the thought crossed my mind that we ought to take a look at just what is our “right to privacy”. Even as a market anarchist who thinks that the state should not exist, I believe that any government should at least follow its own rules and laws which in the case of the USA is its written constitution. The NSA has violated the 4th amendment and the citizens right to privacy under that document. The NSA may also be violating the 5th amendment and the right not to incriminate yourself. Under no circumstances am I about to argue that the citizens of the USA don’t have certain rights guaranteed by that document. I am, however, going to look at privacy in a libertarian society.
Libertarians normally come in two varieties; they believe there should be no state at all or they believe in a small non-intrusive state as envisioned by the Classical Liberals who founded the US. If you are a libertarian who believes in a small state then often you are identified as a minarchist. As a believer in government, any small government libertarian has to be greatly offended by the actions of the NSA and the executive branch as they are breaking the law of the land as set forth in the constitution. Ron Paul ran two campaigns for the GOP nomination for president pretty much calling for the USA to start following the constitution of a host of issues.
When man finally sheds the milestone of the state and voluntary cooperation among free people prevails, we will still need to answer questions like “what are man’s rights?” Does man have a right to privacy? In other words, under libertarian law and theory, would we have a right to privacy? I certainly agree that privacy is something that all moral people should respect. I would never look at some poor unfortunate person in an embarrassing situation if I could help it. I would avert my eyes if a lady had a “wardrobe malfunction” in my presence, but we are talking about a principle and “rights” here, not what is the right thing to do as a gentleman. After all, what should be legal and what is moral are not the same thing.
I have read some libertarians claim that privacy is a personal and social good and so should be a “right”. Heifer dust. Just saying it is a “good thing” is no argument that it is a “right” for surely there are many good things, like a high income job for example, that we don’t have a right to. Why should there be a right to privacy?
I was asked once if a conversation was someone’s “property”. Suppose that someone overheard me talking loudly to my wife in a restaurant. Surely anything that some other party hears is not in anyway privileged information no matter how embarrassed I might be if what I say became public. If I am in public and there are people around who might be listening then I can take measures to combat their attempts to record me. I am reminded of the “cone of silence” in an old TV show called “Get Smart” that was a spoof of the spy movies of the day.
It seems to me that according to any libertarian legal code we have total freedom of action as long as we do not violate anyone’s property rights. That would mean the other person’s body and anything that they owned. I can not legally sneak into a lady’s bedroom to watch her undress. Nor may I trespass on her property to peek into her window. But if some lady decides to strip bare naked in the street outside my house I can legally take her picture. (and get hit upside the head by the wife, but that is another issue)
As a hypothetical, suppose that Mr. Jones saw Mr. Smith doing something that would embarrass the hell out of Smith. It might even get Smith fired from his job if this act were to become known. If Jones was not violating anyone’s property rights when he saw the act then he could legally divulge what he saw even if that would harm Smith. If Jones is a gossip he may well do that. Could he blackmail Mr. Smith? It is very possible that Smith might want to pay Jones to keep the secret and not get Smith into trouble. That would be a voluntary agreement between two free individuals and no business of the law.
In the end, I have always valued privacy a lot. As long as the present system lasts in the US I will fight to try to make the US government follow its own rules and stop taking my tax money and spying on me with it. The government is using massive intimidation and force against the telecommunications giants to force them into being part of this massive spying operations and that is wrong in libertarian law and theory as well as current law in the US. Even so, I felt that we should remember that there is no “right to privacy” but rather our core principle that we have a right to be free from aggression against our body or things we own.