Privacy

The term privacy has a wide range of connotations for libertarians as for scholars generally. In a broad sense, privacy refers to the condition obtained when one's intimate or [Page 391]personal life is inviolate. In political discourse, libertarians argue, as did the classical liberal theorists who preceded them, that one's personal life is bounded by property or contract rights. As with other liberties, libertarians are particularly concerned about the government's singular powers to violate privacy rights, particularly through the use of its police powers. Although a private actor might invade a person's privacy, libertarian analysis generally treats most such instances as trespasses, whereas the surveillance of workers by their employers is treated under contract law. Thus, for most libertarians, privacy refers to rights threatened by government surveillance or by the abuse of the police powers of search and seizure—types of informational privacy. Using the term more broadly, other state invasions of privacy would include laws against some types of consensual sexual relations between adults, such as prostitution, polygamy, or sodomy. Some libertarians also describe regulation of intimate sexual or family conduct as a privacy issue.

In the realm of informational privacy, threats to privacy emanating from government are essentially of two types. The first involves the state's misuse of information it has gathered about individuals, whereas the second relates to the misuse of its powers to gather information. An apt example of the first is the use of census data by National Socialists in Germany, Romania, and other countries to identify Jews and other targets of the Holocaust. Census data also were used by the U.S. government to identify Japanese Americans for relocation to concentration camps.

An example of the second is the “general warrant” used by British and Canadian law enforcement between 1662 and 1766 to conduct searches of private homes at any time of the day or night without notice. These warrants also could be used to arrest previously unspecified persons. To control the threat to human rights from the unique powers of government to arrest, try, and imprison members of the public, libertarians have consistently supported strict limits on the powers of government to collect information. Historically, most such limits have been procedural rather than substantive. That is, to the extent that governments submitted to restrictions in this area, the restrictions governed the means used to collect information (e.g., the requirement that the police obtain a warrant signed by a judge), but not on how long the information could be retained or on the type of information that could be kept.

Some of the best-known limits are those set out in the 4th Amendment in the Bill of Rights to the U.S. Constitution. Although not an invention of modern libertarians, the 4th Amendment was developed by their classical liberal intellectual forebears and is of central importance to libertarian constitutional theories in the United States. It reads,

The 18th-century revolutionaries who drafted the 4th Amendment tailored it to prevent the use of the “general warrant” described earlier by requiring “probable cause” before a search and requiring the object of the search be described with particularity. But it also provides a powerful general model for controlling threats to privacy: It makes one branch of government, the executive, accountable to another, the judiciary, for proper exercise of its powers. Accountability is buttressed by the warrant requirement, which creates a “paper trail.”

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