Privacy laws are an ideal illustration of laws with unintended consequences. Take two examples plucked from last week’s front pages:
On April 25, The New York Times reported on massive fraud in the billion-dollar settlement of claims that the Agriculture Department discriminated against black, Hispanic, and female farmers:
“It was the craziest thing I have ever seen,” one former high-ranking department official said. “We had applications for kids who were 4 or 5 years old. We had cases where every single member of the family applied.” The official added, “You couldn’t have designed it worse if you had tried.”
… “[T]here was no way to refute what they said,” said Sandy Grammer, a former program analyst from Indiana who reviewed claims for three years. “Basically, it was a rip-off of the American taxpayers.”
The true dimensions of the problem are impossible to gauge. The Agriculture Department insists that the names and addresses of claimants are protected under privacy provisions.
The Boston Herald reported on its attempt to find out how many benefits the Tsarnaevs received before their bombing attack on the Boston Marathon:
The Patrick administration clamped down the lid yesterday on Herald requests for details of Tamerlan Tsarnaev’s government benefits, citing the dead terror mastermind’s right to privacy.
Across the board, state agencies flatly refused to provide information about the taxpayer-funded lifestyle for the 26-year-old man and his brother and accused accomplice Dzhokhar Tsarnaev, 19.
On EBT card status or spending, state welfare spokesman Alec Loftus would only say Tamerlan Tsarnaev, his wife and 3-year-old daughter received benefits that ended in 2012. He declined further comment.
On unemployment compensation, labor department spokesman Kevin Franck refused to say whether Tamerlan Tsarnaev ever collected, saying it was “confidential and not a matter of public record.”
On Dzhokhar Tsarnaev’s college aid, University of Massachusetts Dartmouth spokesman Robert Connolly said, “It is our position — and I believe the accepted position in higher education — that student records including academic records and financial records (including financial aid) cannot under federal law be released without a student’s consent.”
On cellphones, the Federal Communications Commission would not say whether either brother had a government-paid cellphone, also citing privacy laws.
Who knew? Thanks to privacy law, people making dubious claims on a judgment fund don’t have to be identified as though they were litigants; and benefit recipients are protected from embarrassment even after death has made embarrassment the least of their troubles.
In fact, privacy laws have a long heritage of unintended consequences. For example, Libertarians were outraged when citizens got arrested for recording the police; but those arrests were often based on state privacy laws that prohibited “eavesdropping” on conversations without all parties’ permission. There’s also the example of Louis Brandeis’s famous right to privacy, which inspired the quasi-intellectual property “right of publicity,” an equally unintended outcome of laws adopted to preserve privacy that have become the mechanism by which celebrities extract fees for commercial use of their photos.
We can’t really call these unintended consequences an accident. We think we know what we want when we pass laws protecting privacy, but it turns out that our notions of privacy are remarkably fluid and situational, so by the time the laws are actually applied they don’t actually correspond to our sense of right and wrong. It works about as well as a law codifying and punishing rude behavior in public.
But in another way, there’s nothing at all surprising about the consequences of privacy laws. From arresting citizen photographers to clamping a lid on government scandals, privacy laws almost always turn out to be remarkably convenient for the powers that be.
Again, that’s not an accident. As particular privacy laws lose their connection to evolving cultural standards, we slowly stop enforcing them (see, e.g., Brandeis, supra). But they still get dusted off and enforced in a couple of situations: (1) To punish people whom the authorities don’t like but who haven’t violated any other laws and (2) to protect the kind of people who end up running the government.
In other words, it looks as though privacy laws are doing for the twenty-first century what loitering laws did for the twentieth.