Defending the Undefendable II: Freedom in All Realms

18.

PEEPING TOM

We live in an era where privacy is exalted, at least insofar as the law is concerned. So called privacy rights are entrenched in law and supported by pundits. What is the right to privacy? It is the right that no one else shall know about your business; that you can remain anonymous if you wish to do so, that you are able to fly under the radar, that no one can see you unless you wish to be seen, among other things.

Even at first glance, there is something very problematic about this concept. For at one fell swoop it would prohibit detectives who are perhaps the greatest violators of privacy of them all. Were privacy to be supreme, and this were exported to the world of fiction, then none of the following could have come into being: Lew Archer, Elijah Baley, Batman, Harry Bosch, Dr. Temperance “Bones” Brennan, Father Brown, Brother Cadfael, Joe Caneili, Chen Cao, Rex Carver, Charlie Chan, Ellah Clah, Inspector Clouseau, Columbo, Elvis Cole, Alex Cross, R. Daneel Olivaw, Rick Deckard, Harry Dresden, Nancy Drew, Jessica Fletcher, Dan Fortune, Mike Hammer, Hardy Boys, Cliff Hardy, Sherlock Holmes, Miss Marple, Thomas Magnum, Philip Marlowe, Veronica Mars, Perry Mason, Travis McGee, Kinsey Millhone, Adrian Monk, Stephanie Plum, Hercule Poirot, Laura Principal, Precious Ramotswe, Sunny Randall, Ezekiel “Easy” Rawlins, Jack Reacher, Jim Rockford, Father (later Bishop) “Blackie” Ryan, John Shaft, Rabbi David Small, Sam Spade, Spenser, Jesse Stone, Brother William of Baskerville, V. I. Warshawski, and Nero Wolfe. My apologies to the authors and fans of those who were left off this list; send me the missing names, and I’ll stick them into the next edition of this book. It is hard to believe that in a world where privacy was actually a right, all of these famous detectives would have been confined to oblivion. Or, that their actions, qua detectives, were entirely illegal. Yet, it is difficult to draw any other conclusion. Nor are detectives the only ones who would be banned by law under the “privacy rights” doctrine. There are others who turn over rocks and look for worms: journalists, historians, gossips and all those who attempt to get behind facades and permeate the veil of ignorance. Inquiring minds want to know, and these are the people who help us satisfy our quest for such knowledge. A large part of what a detective, historian, or journalist (e.g., Julian Assange) does is attempting to unearth secrets, publicizing what his targets have done, which the latter would just as soon keep hidden from widespread perusal. It cannot be right that all of these efforts should be illegal. Certainly, we cannot want to prohibit by law all attempts to find out what a person does that he wishes to be kept to himself.

According to the libertarian legal code, we may do anything at all to each other, whether they like it or not, provided, only, that in so doing we not violate—not their privacy “rights” which do not exist, but rather—their property rights in their own persons and justly owned physical possessions. If the historian or gossip does that, he is acting contrary to the privacy proviso. But he may do anything else he wishes to do, as long as he operates within this boundary.

So, may a detective, hired by a wife, target a husband to determine whether or not he is committing adultery? Yes, as long as the gumshoe does not commit a trespass, or any other such rights violation. May the detective use binoculars or even a telescope if he wishes to engage in long distance surveillance? Yes, of course. If the journalist may look at his target with the naked eye, he most certainly may also utilize technical aids. No one seriously objects to the use of eyeglasses or opera glasses. The purpose to which they are being put should be irrelevant (again, assuming no rights violations). In Robert B. Parker’s book Night and Day (2009), fictional Paradise, Massachusetts, Police Chief Jesse Stone contends with Mrs. Betsy Ingersoll, the principal of a local school. She forced eighth-grade girls to go to their locker room, raise their dresses and reveal their underwear. Did this “educator” violate the girls’ privacy? This would appear to be a paradigm case of just that offense. How would such an invasion be dealt with in the libertarian society? Any private school would lose customers if it treated its young customers in such a manner. Obviously, it would forbid such invasions of privacy on the part of its administrators, and, if they disobeyed, would summarily fire them. What about “magic” eyeglasses that enable the wearer to see through clothes, and even bricks and cement, providing a sort of X-ray vision of the sort Superman boasted? Yes to this, too, since the object of the search has no right to privacy or anything else that would count against it.

Some airports now use similar but less powerful technology. Is this justified? No. For this is based upon a quid pro quo requirement (if you are not willing to succumb to this electronic invasion, you are denied permission to fly), and those who impose it (the government) have no right, under the libertarian law code, to do any such thing. On the other hand, if a purely private airport, or airline, made such a demand, it most certainly would have the right to subject would-be passengers to such an intimate search. It is their private property, after all. Those who do not want to be subjected to such a loss of privacy are free to go elsewhere. And, given a market system, and most people’s antipathy to having their privacy disrespected in such a manner, it is safe to say that this would confer a competitive advantage on entrepreneurs who forego the use of such machinery. On the other hand, if this technology promotes safety, and the consumer values that over any embarrassment suffered being seen au naturel, then the marketplace might well adopt it.

Suppose there are defensive responses available, for example, lead could block Superman’s X-ray vision. Or perhaps a “magic” cloaking device will one day be invented. Would the target be within his rights to utilize such a preventative technology? Of course (and he may indeed do so, provided only the property owner does not demand he forego this right as a requirement for entry). But let us get back to the real world for a moment. If A looks at B, the latter has no right to prevent this. “He is looking at me” is not a sufficient claim to justify the intervention of the forces of law and order to stop it. So, yes, people are not required to live in all-glass houses (with no curtains), or dress in a manner that enables all and sundry to view their entire bodies.

How, then, shall we regard the “peeping Tom.” He uses his right to open his eyes and look around the world in a salacious manner. His perusal of naked and half-naked ladies, to be sure, does not pass the “smell test.” It is certainly morally objectionable. But, were this activity to be outlawed, then so would all “eye to breast” contact, something of which virtually every heterosexual man would be guilty, and for a significant proportion of most waking hours. Now, of course, there are differences between the peeping Tom and normal males. But these consist, mainly, of the fact that the former will engage in trespass, and the latter will not. But, we already, quite properly, have laws on the books that prohibit entering onto other people’s property, whether or not for the purpose of illicitly viewing them. So, peeping Tomism is not per se, properly, a crime. Rather, trespassing is. If the peeping Tom would eschew trespass, then, as far as libertarian law is concerned, he could engage in peeping to his heart’s content. But does not such activity lead to more serious crimes, such as rape? Would not society be justified in banning it on that ground alone? Well, no. If so, Victoria’s Secret would be against the law, as would any movie or book that led some deranged soul to commit a crime. It is indeed a “blood libel” to accuse Sarah Palin, Rush Limbaugh or Glenn Beck of the horrendous murders in Arizona even if their actions did indeed “lead” unhinged Jared Loughner to do them, for which no scintilla of evidence exists.

There is a further issue to be considered. An awful lot of peeping takes place on the streets and sidewalks of the nation. These Toms have every right to be on these premises; this is a great aid to their habits. What is to be done? In the libertarian society, there would be no such thing as a public street or sidewalk. All would be privatized. (See my book The Privatization of Roads and Highways.) Presumably, their private owners would prohibit such activity. End of problem, in one fell swoop, apart from peeping from helicopters, or from one building to another, etc.

If we lived in a different kind of world, where merely looking at others created physical harm to them, then and only then would doing so be properly characterized as an invasion. In such a world, we would be forced by law to avert our eyes from each other, unless we had permission (that is, only sadists would view masochists).

Let us now consider the issue of men looking under the skirts of women who are above them on staircases, and/or photographing them in such revealing positions. This is yet another paradigm case of a privacy violation. Stipulate that females wish to avoid being exhibited in such a manner. Given this, entrepreneurs will compete with one another so as to design staircases where such viewing is greatly attenuated, and/or impossible. A similar situation occurs with school desks placed in the hollow square format. Privacy barriers on such desks are placed so as to promote modesty in this regard. On the other hand, let us suppose that men prefer staircases and desks unencumbered. If they are willing to pay enough money for this privilege, it is possible that an entrepreneur might be able to subsidize females sufficiently to overcome their distaste for being exhibited in this way. But, certainly, in no libertarian society would owners of staircases and desks be held criminally or tortuously liable for failure to protect ladies from unwanted male glimpses of them. The rule would be, anyone can look anywhere he wants to, unless, the private property owner rules against this. When it comes to looking from one piece of property to another, even with the aid of binoculars, merely looking cannot be considered an invasion.

How would the problem of the paparazzi be handled in the free society? Or, should famous movie stars, professional athletes, top selling musicians and their ilk be forced to endure swarms of hooligans armed with cameras getting into their faces? (I am now assuming that no flashes that hurt the eyes of the target are used; these can be obviated on the ground that they cause physical harm to their victims.) The answer is, again, simple: privatize the streets and sidewalks. In that way the “external diseconomy” can be internalized. Some street owners will prohibit all picture-taking on their premises. Others will place no restrictions on this practice. Still others will adopt an intermediate stance, allowing it on some days, at certain hours, but not others. Then, customers will sort themselves out on the basis of these rules, much in the same way the smokers will tend to patronize bars and restaurants that welcome the use of tobacco, while nonsmokers will incline themselves in the direction of health food emporia that do not. Here we see the stark role of private property rights in reducing conflict. Whereas under present institutional arrangements, namely public ownership, there is typically a one-size-fits-all rule. But, we are heterogeneous, not homogeneous, as the dissonance between camera bugs and the camera shy surely attest.

A similar analysis applies to the tension between those who want privacy, and others who wish to spam, or send out junk mail. Those who desire to be left alone are more fortunate in the former case since the web comes with a healthy dose of private property rights. If you do not like how one provider blocks out unwanted messages, usually for a fee, you can offer your business to another. The competition between them tends to ensure high quality and low prices. In the case of snail mail, however, all bets are off. The public post office provides one set of rules, and woe to those whose tastes are not satisfied by them.

Suppose A desires privacy and builds a twenty-foot-high fence around his house. B, his neighbor, objects on the ground that this appurtenance blocks his ocean view. Here we have a seeming conflict in rights, anathema to the libertarian law code, which is predicated not on their existence, but upon their resolution.

One way out of this quandary is to compromise, maybe with a ten-foot-high fence? This will not work because A could say he was intending to erect a forty-foot-high barrier and, at twenty feet, is already meeting B halfway. It also fails to determine just who is in the right on this matter. Another solution is for the state to enact a zoning rule establishing maximum height regulations, perhaps at five feet. But the government is an illicit institution, since it is predicated upon initiatory force. Perhaps it could stumble upon the correct answer, but it would certainly not be due to the type of immoral organization it is. And, even if it did, we would still need a criterion with which to judge if it had succeeded or not. Further, this is by way of being yet another unprincipled compromise. It is always possible to ask, at least for those of us who are not legal positivists, “The legislature mandated X, but is it correct?”

From the libertarian perspective, matters are clear. No one can own a view. Period. There is simply no way to homestead any such thing. According to this doctrine, the first man who saw the sun, the moon, the stars or the ocean becomes the legitimate owner of these things. Or, if we for some unspecified reason posit that he cannot own these entities themselves, but only his (continued) view of them, then any time anyone so much as raises an umbrella that interferes with his sight of these bodies, or whenever an airplane flies overhead to the same effect, his rights will have been violated. Were anyone else to gaze upward toward the heavens, he would owe the proprietor of the view of them whatever the latter deigned to charge. Preposterous.

There are also insoluble conflicts set up on the basis of this philosophy. I see the way you comb your hair. Your hairstyle thus becomes part of my view. If I own this view, then I can prevent you from getting a haircut since that would interfere with my view of you. In a sense, I then own an aspect of you. But the opposite is true as well. You see me, too. Therefore, you own part of me. So, we each own the other as a partial slave? This is silly, since we can then each order the other not to order ourselves around.

No, A is totally in the right, and B completely in the wrong with regard to the twenty-foot fence. As far as the law should be concerned, A may build a fence to the heavens themselves if he wishes. There are, however, several remedies open to B if he does not want to suffer from being boxed in thus. He can purchase a home in a condominium association, where the rules stipulate fence heights. Or, he can sign a restrictive covenant preventing him and his neighbors from building fences above a certain height. If people value their views, the initial developer of the entire large plot of land can increase profits by selling off each parcel with this contractual limitation as part of the deal. Again, private property rights and the free enterprise system ride to the rescue. It is only in this way that people are enabled to sort themselves out geographically according to, in this case, how they rate the importance of maintaining views, versus retaining privacy behind high walls. The person who wants to sun-bathe in the nude without anyone witnessing this spectacle can build himself a roof garden on the top of the tallest skyscraper in the neighborhood; but then he will just have to deal with planes, helicopters, and neighbors who like to stick mirrors on the top of very large poles, without any help from the legal authorities.

Consider the law case Snyder v. Phelps, brought by Albert Snyder against Fred Phelps. The plaintiff is the father of Corporal Matthew Snyder, killed in battle in Iraq. The defendant is pastor of Westboro Baptist Church, a fundamentalist Christian church which strongly opposes homosexuals, so much so that it runs a website called www.godhatesfags.com and engages in public rallies at the funerals of U.S. soldiers, in order to protest against American toleration of gays. Although this lawsuit has strong free speech elements, it is being brought on privacy grounds (intrusion on rights of seclusion and against publicity the law offers to strictly private gatherings, such as funerals).

How would libertarian law adjudicate such a dispute? Do people who hold funerals (and weddings and other private gatherings) have a right to privacy? No, of course not. Privacy is not a right, it is a privilege. It must be paid for in the free society, just like all other desired goods and services. But, under free enterprise, these benefits would be relatively cheap, as would be the case for all products. And how would this be accomplished? Through private property rights, of course. Funeral (wedding, party, any such gathering) crashers are trespassers, and would be dealt with, rather harshly, under the libertarian legal code. Surely, one of the services offered by private funeral homes and cemeteries would be to offer the bereaved family the privacy they desire. Competition between these firms would allow them to proffer this benefit at a modest, and perhaps even a zero, price. Would this keep away the Fred Phelpses and the Westboro Baptist Churches? Would this allow people to hold funerals in private as they would fervently wish? No, of course not. Detractors can still hold their protest vigils directly outside, on the sidewalk abutting the cemetery. But this is not the fault of the private enterprise system. This lacuna stems from the fact that the market is not ubiquitous enough, far from it. To wit, again, the very streets and sidewalks surrounding the funeral are not private property. If they were, funeral homes and cemeteries in all likelihood would locate in places where the wishes of their customers for privacy were respected by sidewalk and street owners. Possibly, they might even have to pay a premium for this, although this is doubtful. But the bottom line is that those who wish for privacy in these circumstances would be able to attain it.

What of the free speech rights of Fred Phelps and his Westboro Baptist Church? Do not they have a right to publicize their views? Of course they do, but, again, only on their own private property, and/or on land they can rent for this purpose. That is, under laissez faire, they would be free to advertise their philosophy concerning homosexuals or anything else for that matter in newspapers, magazines, and periodicals that are willing to carry their message. They may hire billboards for this purpose. They may continue to operate their politically incorrect website, www.godhatesfags.com. They may even picket on the sidewalks and streets abutting funeral homes, provided it is public property.

In the libertarian society, the rights of each of these contending parties, those who wish to hold funerals in private and those who wish to publicize their critical views, are respected.

Let us now consider various governmental initiatives which either purposefully, or as a happenstance, reduce privacy. For example, governmental social security cards, license cards, tags or plates, identity papers, passports, phone records, intrusive census questions that have nothing to do with enumerating the size of the population for representative purposes, breathalyzers, postal inspection of our mail, border crossing examinations of our persons and property, mobile phone tracking, taping our phone conversations, the governmental release of private information about us, copying our e-mail messages, placing cameras all over the place ostensibly to stop crime and/or traffic violations, breaking and entering into private homes and businesses (with or without warrants) in order to sniff out victimless crimes such as illegal immigration, drug use, homosexuality, etc. Then, there are some of the more exotic programs either already in operation or just over the horizon: a biometric national id card (utilizing pictures of our eye balls and/or the backs of our hands), digital technology to scan our fingerprints, using our genetic codes, placing GPS monitors on our persons, homes, automobiles; last but certainly not least, employing machines that allow minions of the state to see beneath our clothing at airports. Do not these violate our rights to privacy? No, they do not, since we have no right to privacy in the first place. Does the libertarian support any, let alone all, of these programs? No, of course not.

Each and every one of them violates the libertarian legal code, but for different reasons. I don’t go so far as to say that every act of government is necessarily illicit from this perspective. Certainly, if we take them out of the context of how they are financed (coercively), when government agents stop a rapist, or rescue someone from a fire, these are legitimate acts. Yet, there is a presumption that each and every deed undertaken by the state is contrary to just law. And this applies, in spades, to its violations of our privacy “rights.”

For example, the government compels people to pay for social security, to obtain passports or motor vehicle licenses if we want to travel, to answer census questions. Sometimes, government employs a quid pro quo. We will be allowed to do something, but only if we are willing to give to the state private information about ourselves. For example, we can drive if we obtain a license to do so, which entails that we offer our addresses, dates of birth, etc. Now, there is nothing per se wrong with a quid pro quo. All commercial interaction involves just that. (I’ll give you something, if you give me something else.) But the question is, does the government have the right to prohibit you from the use of the roads, the borders, the air terminals, the postal service, etc., unless you give it the information it requires? From at least the libertarian point of view, the answer is a very clear no. So, in all such cases, the state’s invasion of our privacy is illicit, but not because we have rights to privacy. Rather, since they are trading in on a quid pro quo threat they have no right to employ in the first place, for they are not the legitimate owners of these facilities.

Policemen have no right whatsoever to violate our privacy benefits, or privileges, to stop victimless crimes. What of actual crimes such as murder, rape, and assault? May a policeman break into private property with the suspicion that such activities are taking place? Yes, of course. Not government police, which should not exist in the first place, but, certainly, private defenders of law and order. What will happen to them should they do so erroneously is a question too far afield from the concerns of the present chapter—privacy—for a full analysis; suffice it to say that this police company will have to pay the going rate for trespass, just like anyone else. Unless, that is, they have a prior contract with the homeowner which negates this presumption; but, presumably, anyone who wanted his private property protected would be more than willing to enter into such a prior agreement.

According to Constitutional Amendment 4 - Search and Seizure (Ratified 12/15/1791, emphasis added): “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” We have no such right. It is merely a privilege, one that, fortunately, the free market system can bestow upon us.