Properly defined, privacy is the subjective condition people experience when they have power to control information about themselves. Because privacy is subjective, government regulation in the name of privacy can only create confidentiality or secrecy rules based on politicians’ and bureaucrats’ guesses about what “privacy” should look like. The most important, but elusive, part of true privacy protection is consumers’ exercise of power over information about themselves. Ultimately, privacy is a product of personal responsibility and autonomy.
Law has dual, conflicting effects on privacy. Law is essential for protecting privacy because it backs individuals’ privacy‐protecting decisions, but much legislation plays a significant role in undermining privacy. Indeed, the principal threats to privacy come from governments.
These threats fall into three classes. The first, government surveillance, is a profound and well‐recognized threat to privacy. Governments also undermine privacy by collecting, cataloging, and sharing personal information about citizens for administrative purposes. Less acknowledged — but no less important — is the wide variety of laws and regulations that degrade citizens’ power to protect privacy as they see fit.
Whether it is anti‐privacy regulation, data collection required by all manner of government programs, or outright surveillance, the relationship of governments to privacy is typically antagonistic. Privacy thrives when aware and empowered citizens are able to exercise control of information about themselves. Thoughtful policymakers should recognize the detrimental effects many programs have on consumers’ privacy and respond with proposals that reduce the role of government in individuals’ lives.