Privacy Issues Revisited


Larry Barnhart
March 1999

Last month the Community Issues Forum had an interesting debate on Privacy. On one end of the table, a representative from the FBI argued in favor of less privacy and pointed to the value of apprehending kidnappers, robbers and murderers. On the other end of the table, a speaker from the Independence Institute argued in favor of more privacy, citing rumors of government agencies using airplanes with infrared sensors to apprehend people cultivating marijuana in their homes.

Both sides made excellent arguments for their position. Ironically, I found the FBI agent's arguments slightly more convincing, given that it would be nice to see government become more effective at catching the bad guys. (Many people think I am anti-government simply because I advocate the use of less coercion in human relations.)

Ultimately, it occurred to me that privacy is a big issue because we have two types of crime. When we look at curbing obvious predatory behavior, less privacy is very helpful. On the other hand, when it comes to enforcing "consensual" crimes, many people advocate more privacy as a way of making it harder for the government to convict.

Unfortunately, we cannot have it both ways. If we want more privacy for people engaged in consensual crimes, we must also give more privacy to those engaged in predatory crimes. If we want less privacy for predators, we must also accept less privacy for those engaged in consensual crimes.

Of course, when I brought this up for the speakers and the audience to consider, I was blown off as some kind of crackpot. Apparently, the "Legal Positivists" have won the day -- law is sacred regardless of what it does, and all that remains is to discuss the rigor with which the law is to be enforced.

How did we reach this point?

This debate is not new. In the couple of hundred years before the American Revolution, Natural Law theorists had an ongoing argument with Legal Positivists. According to ". . . legal positivists such as Thomas HOBBES . . . an 'unjust law' is a contradiction in terms because the existing law is itself the standard of justice." In contrast, Natural Law theorists such as Thomas Aquinas "argued . . . that an unjust law was not a genuine law but rather an act of violence."

As it turned out, Natural Law philosophers like John Locke won the day and the United States was born as the freest nation to date. While all oppression was not rooted out of law, a principle was established that could have evolved were it not for the future preeminence of "Roscoe POUND and other American sociological jurists, who focused on the notion of 'social engineering' law as a means of social control and the relationship between law and society."

Now that we are back to Legal Positivism, liberals get to use the force of law to make people more charitable, and conservatives get to use the force of law to make people more moral. (Of course, there is a hidden justice in the fact that liberals helped establish principles which conservatives would later use to inconvenience them.)

Prior to the American Revolution, the focus was on Kings and Monarchs (who have since been reincarnated as "Dictators.") Many of them were not nice people and ways had to be found to limit their power. Even today, it is not popular to be abused by a dictator.

However, if the same abuse is perpetrated by a "majority vote," then it becomes sanitized under the banner of "the will of the people." If we feel oppressed by the law, our recourse is limited to winning a popularity contest at the polls or to erect little niggling ways to compromise enforcement efforts. Heaven forbid that we suggest that a rational criteria might exist where we can differentiate a just law from an unjust one, assuming that we are able to consider the possibility of the existence of unjust laws in the first place.

"I can accomplish through law what can only
be done otherwise through crime."

Throughout history people with the power to write laws have generally lived much better than those who lacked that power. Except for a few brave thinkers, this has been considered a fact of existence just like the human body's need for water as a prerequisite of survival. Fortunately, although brave thinkers are rare, they have on occasion visited this planet.

One such thinker was Frederick Bastiat who did his most active writing in the 1840s. The term he came up with was "legal plunder." "But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime." Of course, this quote is addressed more toward property issues rather than liberty issues, but the same principle applies to the protection of liberty as well as to property.

At another point in his writing, Mr. Bastiat observed: "Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?" In other words, if I as an individual do not have the right to storm your home in search of marijuana, what gives me the right to empower government to do so?

One irony of our current situation is that today's legal violations of liberty are justified by previous legal violations of property. Earlier in this century, liberals concluded that humanity is too mean-spirited to voluntarily give adequate charity to the right places, so they sought the power to write laws and levy taxes to correct this defect in human nature. Of course, whatever you subsidize, you get more of, including irresponsibility and lack of planning. Consequently, because irrespons-ible people can destroy wealth faster than responsible people can create it, conservatives try to use law to limit "irresponsible" behavior.

Protection by government vs. protection from

Ultimately, the question needs to be answered: should government force be used only to protect us from each other, or should it be used to protect us from ourselves? If the second premise is true, we should be consistent by outlawing anything that has or could ever hurt anyone at any time. (Mama Cass choked on a sandwich: outlaw sandwiches!) Given that this hasn't happened, we can only conclude that politically-connected people have elected to use law to force their preferences on everyone else.

Of course, this is also the age of resurgent philosophical animism: matter is active and humans are passive. In a Rocky Mountain News interview with Peter McWilliams, the author of Ain't Nobody's Business If You Do , he said, "The Los Angeles Times recently ran a headline: 'Drugs Kill Actor, 23.' . . . I wrote them a letter, which they didn't print, saying that was as accurate as writing, following the 1955 death of James Dean: 'Porsche Kills Actor, 23.'" (Of course, Americans are particularly fragile. Colombians can make drugs by the boatload and still survive. But if those drugs even touch American shores, Americans will self-destruct by the millions.)

Were we to limit law to protecting us from each other, privacy would not be such an issue. We only need privacy when others have the power to intrude into our lives and take away our liberty and property when they disagree with our personal choices. By limiting government to protecting us from each other, we can expect to be more protected by our government and to need less protection from our government.


1. Reviewed by Nicholas D. Constan, Jr., "Law," The Academic American Encyclopedia, (New York: Grolier Electronic Publishing, Inc., 1993).
2. Ibid.
3. Ibid.
4. Frederick Bastiat, translation by Dean Russell, The Law (Irvington-On-Hudson: The Foundation for Economic Education, Inc., 1990), p. 21.
5. Ibid.
6. Clifford D. May, "A conversation with Peter McWilliams decriminologist," Rocky Mountain News, January 5, 1994., p. 26A.

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