“Privacy” Shouldn’t Be Taken to An Extreme

by Hans Bader on February 14, 2008 · 6 comments

Privacy deserves protection, but not to an extreme — particularly when it comes at the expense of civil liberties, public safety, and the rights of other citizens.

Creating new privacy rights often comes at a cost. A mental patient stabbed a doctor in New York yesterday, but police were delayed in locating the culprit. “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday.”

In Massachusetts, you can be prosecuted there if you tape a policeman threatening you, or a kidnapper calling you with a ransom demand, since the idiotic state courts have ruled that that violates the wrongdoer’s “privacy rights” under state law.

The federal HIPAA medical privacy law has resulted in many billions of dollars of red tape, driving up health care costs.

The Virginia Tech shootings might have been prevented if it hadn’t been for federal privacy and disabilities-discrimination laws that concealed information about the shooter.

Judicially-created privacy rights are seldom applied in an evenhanded manner. A state judiciary powerful enough to create privacy rights out of thin air is powerful enough to destroy traditional privacy rights when it feels like doing so. The New Jersey courts cite judicially made-up notions of privacy to protect adulterous relations from civil or criminal liability. But that doesn’t stop them from intruding into the marital relationship. In their decision in In re M.T.S., 609 A.2d 1266 (1992), the New Jersey Supreme Court undermined sexual privacy rights by declaring that anyone who engaged in sex, even if married, was guilty of rape if the sex occurred without “affirmative permission,” and that “consent is not a defense.” (In reality, explicit permission, far from being praiseworthy, is often the hallmark of arms-length bargaining, such as between a prostitute and her customers, not between married couples who know each other better and don’t explicitly bargain over sex).

The New Jersey courts have odd notions of morality that devalue human life while obsessing over politically incorrect speech. They awarded alimony to a violent woman who killed her ex-husband’s child in Calbi v. Calbi (2007) , reasoning that since the violence was not premeditated murder, it was not “egregious circumstances” barring alimony.

Yet they held in Taylor v. Metzger, 706 A.2d 685 (1998), that a woman could sue her boss for once jokingly using the word “jungle bunny” before apologizing, claiming that that this one-time use of bad words was “egregious” and “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Thus, the New Jersey Supreme Court claimed, the woman should be allowed to sue for racial harassment and intentional infliction of emotional distress. (By contrast, the U.S. Supreme Court stated in Meritor Savings Bank v. Vinson (1986), that the “mere utterance of an epithet” on one occasion, even if racially offensive, is not enough to support a harassment claim).

Veronica February 15, 2008 at 11:54 am

Just because of the few outliers doesn't mean that we shouldn't be able to have privacy ..The patriot act took away a lot of those rights anyway

Sam Grove February 17, 2008 at 7:43 am

The legal contortions required to create a convoluted balance between rights and power has brought us no shortage of insanity.

The problem lies in the police power of the state and the immunity allocated to it.

The problem might reduced if this immunity were modified.

Policing could be done by contract leaving the contractor to assume a conditional liability.

If a contractor acquires information of criminal activity, it may do whatever is required to expose the crime and take whatever evidence to support it in court.

Evidence of a crime should always be admissible, but if no crime is proved, then the contractor must assume legal liability for any violations it has perpetrated against innocent parties.

Of course, a large part of the problem with all this is the state's insistence creating crimes without victims.

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