Toward a Positive Theory of Privacy Law
Privacy law creates winners and losers. The distributive implications of privacy rules are often very significant, but they are also subtle. Policy and academic debates over privacy rules tend to de-emphasize their distributive dimensions, and one result is an impoverished descriptive account of why privacy laws look the way they do. The article posits that understanding the identities of the real winners and losers in privacy battles can improve predictions about which interests will prevail in the agencies and legislatures that formulate privacy rules. Along the way, the article shows how citizens whose psychological profiles indicate a strong concern for their own privacy are less likely to be politically efficacious than citizens who do not value privacy, producing a substantive skew against privacy protections. The article employs public choice theory to explain why California’s protections for public figure privacy are noticeably stronger than the protections that exist in other American jurisdictions, and what factors might explain the trans-Atlantic divide over privacy regulation with regard to Big Data, the popularity of Megan’s Laws in the United States, and the enactment of Do Not Call protections. The article concludes by noting that structural features of privacy regulation can affect the public choice dynamics that emerge in political controversies. Individuals seeking to expand privacy protections in the United States might therefore focus initially on altering the structure of American privacy laws instead of trying to change the law’s content.