Posner's Conception Of Privacy Rights

In the 21st century, privacy rights have become a contested issue. From leaked sensitive photos to breaking into iPhones, privacy issues are intertwined in all facets of human life. However, why do we value concealing our personal information? A better question may be, should we value our privacy in all instances? While numerous accounts attempt to answer such questions, most do not capture a realistic viewpoint. Two such interpretations are elaborated by Richard Posner and Neil Richards. Although both Posner and Richards theorize a conception of privacy, Posner's individualistic viewpoint compared to Richards' focus on both individual and societal interests conveys a more realistic conception of privacy rights in the modern era.
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We begin with Richard Posner’s understanding of privacy rights. On a basic level, Posner defines privacy as secrecy, or “the interest in concealing personal information about oneself.” However, categorization is needed. Specifically, Posner goes on to make a key distinction between a “pure interest in concealment” and a “instrumental interest.” The former is the withholding of information for the sake of secrecy, while the latter is concealment “based on fear that the information will be used against [them].” Further on, Posner attempts to draw a distinction between an involuntary disclosure of personal information, such as the secret “interception of letters, email, [and] phone conversations,” and a voluntary disclosure of personal information, such as disclosing personal information when registering to drive or applying for a job. This differentiation will form the bulk of our argument later in the paper. Finally, Posner argues that there is also a difference “between the desire to conceal information about oneself and the desire that such information not be used against oneself.” With this, Posner implies that individuals will realistically disclose information as long as they will not be harmed. Furthermore, citizens are confident in trusting intelligence personnel with personal information in so far as they are “compensated for the costs of diminished privacy.” By drawing such distinction, Posner answers the paradox of individuals valuing their privacy and
Neil Richards draws fewer distinctions as to privacy rights. He begins by describing “Intellectual Privacy,” or the theory that “new ideas often develop best away from the intense scrutiny of public exposure.” In essence, Richards argues that intellectual freedom in all facets of life necessitates an extreme level of privacy. Moreover, Richard ties his distinction to Anglo-American thought, specifically that “citizens should be able to make up their own minds about ideas big and small, political, and trivial” and that the freedom to speak is the “means indispensable to the discovery and spread of political truth.” In defending these claims, Richards’ provides three empirical claims: one pertaining to cultural and literary works, one citing surveillance studies, and one in reference to First Amendment Doctrine. Later in the paper, I will expand upon these pieces of evidence, in attempting to show their