On The Limitations And Protection Of Privacy

This dissertation focuses on the privacy and related issues and problems. Apart from the individual approach of the traditional studies on privacy, it tries to analyze and understand privacy from the social standpoint. The dissertation is divided in six chapters with an introduction at the outset. The first two chapters mainly focus on the economic theory of privacy, while the following chapters applying the theory. The author aims to introduce the background, main focus, approach and the scope of this study in the introduction, with a special critique of the moral theory approach and logic used by the traditional study.Chapter1defines privacy analyzed in this dissertation, pointing out that the starting stage of the discussion of privacy can be focused on seclusion and the personal information.. Much of the demand for privacy concerns the temporal or permenant desire for seclusion, or the desire of concealing the discreditable information, while the purpose of the concealment often is deceiving. Through a brief survey of the physical privacy in primitive and traditional society, this chapter points out that privacy may not be a necessity for social order or maintenance.Chapter2summarizes and proposes a concise economic theory of privacy and points that the social response to the limits of privacy can be understood through the balance of the social costs and benefits. First, it explores the benefits and costs of the privacy in the sense of seclusion, and points that the direct benefits of physical privacy may be the personal peace or the avoidance of the social duties. The main reason for the protection of the physical privacy may be due to the labor division of mental work and labor work, as the former dominates the latter in modern times. While seclusion often is the precondition of mental work, the protection of it can be social productive. The byproduct of the protection of physical privacy may be the promotion of communication. The main costs of physical privacy may be the social losses from the avoidance of the social duties and the convenience supplied by the physical privacy for the criminals. Information privacy mainly includes information that is social valuable (works, inventions, business secrets, etc.), information that everyone owns (birth date, blood type, etc.), information that is discreditable (criminal records, illness, etc.), and information that is embarrassing (naked pictures, etc.). This chapter points out that the justification for the protection of the first type of information is strongest, Little doubt can be posed for the protection of the fourth type of information and the major part of the second type of information. The reason for the legal protection of the third type of information is weakest. Other chapters are the application of the theory proposed in chapter2.Based on several decisions of the United States Supreme Court, Chapter3mainly surveys the problems of the privacy protection on the constitutional level, concluding that the attitude of United States Supreme Court on privacy protection is confusing and ambiguous, rather than logically consistent. Also, this chapter discusses the privacy related issues in the recruitment of government employees and in the administrative process.Chapter4discusses shaming sanction, which is reviving in the public enforcement of law. This chapter analyzes the interaction of privacy and social norms based on the discussion of the formation logic of the latter, and points that the efficacious disclosure of the private facts in a small community may become dysfunctional and cause unexpected social costs.Chapter5discusses the reasons of the prohibition of the blackmail, especially with the puzzle of the blackmail on the criminal facts. Traditional scholarship gives little attention on that. Based on the economics and game theory, this chapter analyzes the difficulties of the blackmail from the standpoints of optimal punishment and private enforcement of law, and tries to suggest that the blackmail damages the optimal punishment provided by the statutes and causes net social costs. Meanwhile, this chapter gives an explanation for the rare of the blackmail, pointing that the strategies carried by the blackmailers and victims contribute to the failure of the blackmail.Based on a series of common law cases, Chapter6focuses on the privacy tort and gives an economic explanation for the protection of privacy in common law. In addition, this chapter discusses some privacy-related issues proposed by Chinese legal scholars.