GAWKING LEGALLY.

• Author: Manta, Irina D.
• Position: Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy

Does the United States need new regulations to defend individual privacy in a world where Internet news spreads like wildfire? The first step to answering that question is to understand the incommensurability problem inherent in alleviating the tension between freedom of expression and privacy. Weighing values such as privacy against ones like national security or free speech is difficult. (1) It is even more complex to have conversations and debates about these balancing acts. How many people can define their own utility function regarding the relative value of privacy as opposed to speech, much less defend that function against the competing versions of other individuals? Even an individual who has a fairly clear grasp of his own vision and who possesses strong argumentative and rhetorical skills will struggle to convince others because, in addition to disagreements regarding important empirical questions and the best tools of measurement in that area, eventually a clash of prior values will emerge. The most straightforward path from there is an emphasis on crafting regulations that maximize individual choice and on having the modesty to admit when the common law is better able to do so than new statutes.

1. ADOPTING AN INDIVIDUAL CHOICE FRAMEWORK

   As evidenced by many facts, including the most recent presidential election and its aftermath, America is a value-pluralistic society. (2) And the following scenario is likely even in the best case in a society like ours when two people of good faith and with a high degree of commitment to reaching the correct result converse about policy. They argue regularly, sometimes for years, about the pros and cons of a particular policy. Let us assume that they manage to iron out any logical inconsistencies in each other's arguments, agree on a common system of epistemology, overcome the significant challenges of cognitive bias, and arrive at a similar approach to resolving empirical questions. After all this, they continue to disagree once they have crystallized the heart of the dispute, which is that the prior values they chose or were taught do not mesh with the other person's. At the end of the day, these priors are largely arbitrary, and that is why the conversation cannot continue at that stage. (3)

   Recognizing the arbitrariness of individuals' values militates toward adopting a framework in which we simply let people make as many choices as possible about their own lives. The maximization of individual choice thus becomes the North Star when it comes to evaluating the costs and benefits of existing or new regulations. (4) Using choice is a matter of epistemological and ethical agnosticism. Like any value system, one that bases itself on choice cannot help but rely itself on some assumptions, but it minimizes the number of these assumptions and holds the promise of creating a world in which individuals can coexist more easily than in alternative systems.

2. APPLYING THE INDIVIDUAL CHOICE FRAMEWORK TO PRIVACY AND SPEECH

   The reports of the death of privacy may be exaggerated. We did not transition from a world in which individuals were able to keep all information about themselves secret to one in which everything is fair game. (5) New technologies have certainly changed the landscape by modifying the types and extent of the harms that can be inflicted on people when spreading negative information about them. That said, the level of privacy that the average person has at her disposal...