What theory of privacy do I plan to bring to bear here? Those who have followed me for some time already know what it is, but for those of you who are new, I’ll give you the answer I just gave to someone who asked me the question on Facebook.

Background: From the beginning, when Leonard Peikoff first asked me to “find out whether there was a right to privacy,” as research for his radio show, I found the arguments for a distinct right to privacy unconvincing. I thought, instead, the proper legal protection for privacy should rest on rights to property and contract. I wrote my dissertation to that effect, and my revised understanding of my position, in relation to the academic literature, is here: http://www.law.nyu.edu/…/default/files/ECM_PRO_060963.pdf

The cool thing about my way of conceiving of privacy is that it allowed me to think of a solution to the problem of the “third-party doctrine”–the 4th Amendment doctrine saying that you no longer have a “reasonable expectation of privacy” in information you share with a “third party.” (E.g., Facebook). If you no longer have that expectation, so the doctrine says, it’s not a “search” within the meaning of the 4th amendment when the government obtains your information from the “third party,” and so no warrant is required. So, for example, the recent “settlement order,” which has the pretense of “oversight,” is enough of a reason for the FTC & DOJ to have access to your data.

In my view this is a bunch of garbage, and in fact the whole third-party doctrine should be scrapped in favor of a consistent application of common-law contract. How you can do this, and still retain proper functions of law enforcement, was the subject of my last law review article: 

https://scholarship.law.stjohns.edu/lawreview/vol88/iss2/3/

I have reason to think my view of this doctrine can actually be accepted, and is not at all pie-in-the-sky, due to the approach Justices Gorsuch and Thomas, in particular, used in analyzing the recent Carpenter case. (Gorsuch is closest to understanding my view.)

If you would like to help me get this theory before the Court, perhaps as part of challenging the FTC’s recent takeover of Facebook, donate here.

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