Lawprof Daniel Solove argues that records related to divorce proceedings (presumably not the fact of the divorce itself, but the facts discovered or alleged during the proceedings) should generally be kept private, even when the divorce involves a politician, such as former Illinois senatorial candidate Jack Ryan.
I strongly support people's right to speak about others, even when such speech is said to infringe others' privacy; but it doesn't follow that the government should always make such speech easier by publicizing information that's in its hands -- often information gotten using the government's coercive power. The question, to which I don't have a ready answer, is: Which information should the government release? A few items to get the discussion going:
Records of criminal trials, including information that was gotten from witnesses (such as the witness's medical history, sexual history, wealth, religious or political beliefs, and the like), as well as information about defendants' s past criminal convictions.
Records of criminal or quasi-criminal trials involving offenders who were under 18 at the time of the crime.
Records of civil proceedings, including normal civil litigation, divorce, bankruptcy, and the like.
Income tax records, which have historically been kept highly confidential.
Property tax records, which have historically been public records.
Gun registration records and concealed carry license records; the latter, I'm told, are public records in at least some states.
Grades and disciplinary records of students at government-run schools and universities; I believe federal law generally requires that these be kept confidential.
Salary records and disciplinary records of government employees; the federal government and many state governments makes the salary information publicly available, though generally not easy to get.
Should the government keep these confidential? Should it make them publicly available? Should it make them publicly available but hard to get, for instance by keeping them in storage and not putting them on the Internet?
Criminal court records are a good example - it seems easy to say that I should be able to go down to the Courthouse and get a copy of a transcript, but should someone be able to google my name (or search a government database) and obtain every court document referring to me? The former seems somehow different from the latter.
As far as my fellow students knowing my grades, I have somewhat mixed feelings about it. As an undergrad, I didn't honestly care, and I discussed grades with most of my friends. Also, you generally knew who were the top and bottom people in each class.
Now that I'm a law student (and for full disclosure: I'm a 1L and haven't gotten fall semester grades yet), I'm happy to participate in the conspiracy of silence and not discuss grades with my peers. I do so only beecause 1Ls are notoriously neurotic, however, and I see no particular need to fuel anybody else's neurosis, nor do I care what grades my friends got (except insofar as I like them and desire to see them do well). If Cornell were to post everybody's grades on a bulletin board every semester, I don't imagine myself being particularly upset. If my fellow students were upset at the fact of posting or giving each other flak about grades, I would want them to get over it.
I'm going to make the radical argument that any kind of privacy is bad in a liberal democracy, where the more we know about our fellow citizens the better we can judge their worthiness for civic responsibility. The main concerns about distributing private information should be that: (1) Procedures are in place to filter out falsely slanderous material. (2) The wealthy and powerful cannot protect private information any better than the poor and powerless. (3) Information that can cause irreparable physical harm, e.g., the revelation of a witnesses address in the trial of a powerful mobster, be secured. Things like the use of e.g., medical information to discriminate in the issuing of health insurance can be addressed by legislation. After these concerns are addressed, the only arguments I've seen in favor of privacy are that it protects individuals from the consequences of shameful or criminal behavior.
I'm really curious if there is a good argument for privacy in a democracy.
Andy, there's a good reason for this. When they begin law school, 100% of students are used to being in the top 10% of the class. At the end of the first year, however, only 10% of students will be in the top 10% of the class!
With respect to the OP, there's a parity argument to be made that in many proceedings, the parties should decide whether or not the details should be public.
The reason is that wealthy litigants can already do this, if they want by going to the private justice system. If the parties agree, they can go to arbitration and keep as much of it private as they like. As there is no reason that knowing the details of disputes among the poor should be more important to the administration of justice than knowing the details of disputes among the rich, there's no good reason to allow the rich to keep their disputes private but not the poor.
Of course, I don't mean to imply that only the poor use the "public" justice system. It's just that the rich can opt out, if they so choose.
All you've done is eliminate (or drastically reduce) the transaction cost. That's technology's job.
Until quite recently, people needed access to Lexis/Nexis or a library's microfilm collection to search news stories older than a day or so. Now all you need is a browser. The blogosphere wouldn't exist--or wouldn't exist in the same form--without that ability.
The act is either legal or illegal. The effort involved is irrelevant--or should be.
So if you have a sexually transmitted disease, someone should be able to find out through Google? If you wrote an inane paper for a college freshman seminar in, then this should be part of the public record, discoverable when you want to be a corporate CEO 30 years later? If you were arrested at age 15 for throwing gliders or snowballs off an elevated train platform, this should be fodder for journalists when you run for Senate at age 55?
Yes-- shielding this sort of information from disclosure "protects individuals from the consequenses of shameful or criminal behavior. Even if there are no serious consequenses, protection from embarrassment gnerally seems more important than giving others the opportunity to laugh at them or to scorn them. Enough people (the vast majority) want such protection that our institutions offer it. Furthermore, people change sufficiently over many years that it seems reasonable to most. When you run for the Senate, you wouldn't necessarily want your post to be quoted in your opponent's literature. Especially if you eventually changed your mind.
And, by the way, APPsocREs,what did you say your name was? And why don't you use it to post comments on this blog? (Rhetorical questions)
My understanding is that in at least one Scandinavian country, arrest records and suspects names are considered confidential and private. If someone is a fugitive, their name can be made public.
As a general rule in a criminal case, the media isn't allowed to publish the name of anyone arrested or charged with a crime until the person has been convicted or pled guilty.
The basis for this is people are innocent until proven guilty and publication of their name unfairly damages their reputation.
As I said in my original post, I do not think the argument that a lack of privacy will lead to widespread chagrin is very useful. If two people are running for Senator and one has done stupid things as a youth and one hasn't, it's in the public interest to know this. The universal availability of such information would probably lead to more sympathy for minor human failings rather than less. A great many preachers might be less strident about others' failings if their own were freely available to the public.
That the majority of people -- thinking of stupid things they have done -- prefer to keep such behavior hidden is not a good argument against a policy of openness: Most people would prefer not to pay taxes, but that's not a good argument against taxation.
I'm still waiting for a good argument in favor of privacy, as a private right with public benefits. I don't think you've provided one.
By the way, a condition of posting here is providing an email address. Anyone who wants can probably find my name and I have made some embarrassingly stupid postings here. So there's not a whole lot of sting in your rhetorical question.
Most people are not seeking civic responsibility. They are seeking to live their own life. If the majority want to make privacy in an area of life the law because it makes them feel better, then that is good enough reason to keep it private, barring an affirmative reason for disclosure. You spoke of liberal democracy. If the majority favor privacy, then that is the democratic thing to do. Liberty usually is associated with personal autonomy, and if most people favor personal control over information reating to themselves, then the democratic think is also the liberal thing. If people are afraid of enquiring minds peeking into their receses, they will be constrained in their behavior and their expression. This is illiberal, on the whole. It is also another reason to maintain privacy (since you want one-- I assume that, ceteris paribus, in a liberal democracy, we want to encourage people to express themselves maximally).
This does not prevent people from being compelled to disclose otherwise private information in consideration for something they want from others. If you want to read somebody's high school papers or medical exam before you decide whether to vote for him, or want to know what his fellow swift boat officers really thought of him, then you can ask him-- and if he doesn't tell you-- then you can vote for somebody else. If you want to go to a doctor who is a practicing Zoroastrian, then ask, and if he won't tell you his religion, then you can walk. If enough people think these things are important, then there will be disclosure.
On the other hand, some people think that these sorts of things, as practiced in the recent campaign (what one did on switr boats, or the circumstances of separation from the Air Force reserves) got in the way of decisions on who was fit for civic duty. This may be a pragmatic reason why even people seeking civic duty should be allowed to maintain their privacy. Again, if it is important to enough people, the principals will have to disclose the private data if they want the would-be recipients of the information to give them what they want.
As for the task of filtering out "slanderous information" -- that seems to me a near-insuperable burden, which would fall mostly on the individual.
Now, making all felons' identities and locations as easily accessible as that might have a point, and would certainly be more equitable. If there's a public interest in knowing that the guy across the street has a rape conviction, why isn't there one in knowing that the guy in the house to your right has three manslaughters to his credit, while the woman two doors down served time for embezzlement? I say all or nothing, preferring "nothing" (that is, obviously the record ought to be public, but you'll have to take some trouble to get at it).
If it's an incurable one, that would be especially nice to know, and likely more effective than the criminalizing of transmission that we have on the books for HIV.
Yow, did I read somewhere that 20% of adult Americans have herpes?
David Brin's Transparent Society is interesting in this area. He includes the point that rules applicable to ordinary citizens differ from those applicable to government employees.
Of course there's a reason. And it's certainly a good reason to work hard and make sure you stay at the top of your game. But is it really a good reason for the level of neurosis that is all too common? Especially at a school with a 99% placement rate, no class-ranking, and only a mean requirement (no distribution requirement) on the forced curve for the classes, I say no.
The rationale for registering sex offenders and not other criminals is that sex offenders have significantly higher rates of re-offense than other classes of offender.
To the extent that administrative orders have similar impact on individual citizens, the same principle should apply. You need to know your neighbours' real estate assessments to be assured that the assessors aren't picking on you, for example.
To illustrate: recourse to a university engineering library will provide a talented indivdual with knowledge of chemical explosives, precise shaping of metals, the chemistry of materials separation, and general physics. With great effort and expense, these piecemeal, publicly available, innocuous facts can be assembled into a design for a nuclear weapon; yet the government maintains this aggregate of data as a closely held secret. Why? - that "great difficulty and expense" of aggregating serves as a shield to the final product. Likewise, the effort and expense of visiting every courthouse in the land to aggregate personal data acts as a shield to privacy.
requestdare anyone reading to give me reasons why the above have compelling policy reasons for being publicly available, except:3) Civil litigation/divorce records (especially bankruptcy)--which are particularly relevant for business purposes/creditworthiness, etc.
4) Property tax records--allow objective then-existing government review, albeit flawed, to combat the assymetry of information that often exists in a RE market between buyer and seller.
8) Salary/discipline of public employees--b/c every one of us is each of their "bosses." We should be able to cry to Channel 9 news, or our legislators and keep track of objectively-abusive exercise of the money and power we assign to them.
The ones I excluded all have knee jerk reasons for inclusion on a list of REASONABLE public info. But I would like to see a thoughtful articulation that I may have overlooked. I.e., exclude gun records b/c although you could say it has a safety effect--you don't want to live in neighborhood with lotsa guns--this is completely emasculated by the fact that many people in this country have guns that are NOT registered. This defeats the purpose of "knowing where all the guns are."
That's just an example of where ignorance resulted in death. Usually, it is just a lifetime of misery, e.g. marrying someone and then finding out what that person is really like...
Consider a few illustrations:
(1) You've a teenage daughter. She comes home from school having had an embarassing accident stemming from a failure to anticipate the first day of her menstrual period, an accident about which she was mercilessly heckled by her peers. She's near tears. Now, as her parent, you want her to be able to tell you what happened, right? In complete honest detail. Is that going to happen if she knows you're going to blab to your friends, who are the parents of those same peers?
(2) You were drunk and ran your car into a stop sign, destroying it and damaging your car. It probably needs some work to be completely safe. Now you're selling the car. The potential buyer wants to know if the car has ever been in an accident. You don't want him to be unaware of the possible safety risk, but will you tell him -- if you know he's going to stop by City Hall on the way home and tell them what happened to the sign at 4th and Main?
(3) You own a store, and Al is a major wholesaler from whom you buy nearly everything. Your personal relationship to Al is pretty key to getting along in business, so you overlook the fact that when Al gets a little drunk he rants on about the Jews and how they're taking over the world, can't trust 'em, et cetera. (Al's not violent, you understand -- he's just imbibed a little prejudice in his mother's milk.) Now, it turns out you need a new VP of sales, and this guy applies, and he is just perfect, an amazing find -- but he's a Jew. He'll be working in the back office, where Al has no reason ever to go. But -- are you going to offer him the job if the first thing that happens when you do is that you have to post all your new employee's private info, including his lack of a foreskin, on a placard in your shop window, where Al is sure to see it next time he makes a delivery?
In each case, you can argue away the necessity for privacy by saying everyone should live a crystal-pure life from start to finish. But, first, that is naive. Second, it ignores the value in redemption and change -- if a man's sins follow him into every subsequent transaction, if he can't ever begin anew, he has far less incentive to change. Finally, it arrogantly ignores the damage to innocents of penalizing private honesty by adding to its costs all the costs of fully public honesty.
This topic has been of interest to me for some time. I'm glad it has prompted me to register and post a comment here.
While I acknowledge that in many situations, a credible case for privacy can be made (doctor-patient, attorney-client, etc..) it seems that these privileges come with a societal cost. Balancing the societal costs against the private costs has not, to my knowledge, been attempted except in rather narrow legislative efforts relating to the rules of evidence.
Since the individual benefits of privacy are widely recognized, I think it bears mentioning why I think the societal costs militate toward making privacy the exception, rather than the rule. It seems very easy for an individual to construct an argument for keeping almost any piece of information private.
Publicity of information undoubtedly discourages much more antisocial behavior than laws. For many white collar criminals, the shame they experience is a heavier punishment than the incarceration imposed by the justice system. Small towns have much lower rates of crime per capita than do larger cities, mainly, I would argue, because of the far greater likelihood of criminals being discovered in such communities. It is no secret, either, that people are generally friendlier in small towns. Again, I think this is related to the costs of antisocial behavior in these towns.
Ultimately, I suspect game theory may shed a good deal of light on this topic. An individual who expects any given encounter to be a one-time transaction, i.e. someone who the person does not know and does not expect to see again, may act selfishly or boorishly without consequence.
Of course, I abhor the notion that some direct marketer has access to my loan applications, or tax returns. I would not want my medical records made publicly available. But the growing impetus towards making traditionally public information (such as court records) private troubles me. The notion that such records should be available only to those with the resources to hire detectives or paralegals, instead of through the internet, seems particularly ill-advised.
Of course, as should be evident, my own thoughts on this topic are far from fully baked.