Rubel on privacy and the Patriot Act

by Harry on February 14, 2006

I see via Larry Solum (an indirect route if ever there was one) that Alan Rubel has posted his paper “Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy” (forthcoming in Law and Philosophy) on SSRN. Here is the abstract:

Civil liberty and privacy advocates have criticized the USA PATRIOT Act (“Act”) on numerous grounds since it was passed in the wake of the World Trade Center attacks in 2001. Two of the primary targets of those criticisms are the Act’s “sneak-and-peek” search provision, which allows law enforcement agents to conduct searches without informing the search’s subjects, and the business records provision, which allows agents to secretly subpoena a variety of information – most notoriously, library borrowing records. Without attending to all of the ways that critics claim the Act burdens privacy, I examine whether those two controversial parts of the Act, the section 213 “sneak-and-peak” search and the section 215 business records “gag-rule” provisions, burden privacy as critics charge. I begin by describing the two provisions. Next, I explain why those provisions don’t burden privacy on standard philosophical accounts. Moreover, I argue that they need not conflict with the justifications for people’s claims to privacy, nor do they undermine the value of privacy on the standard accounts. However, rather than simply concluding that the sections don’t burden privacy, I argue that those provisions are problematic on the grounds that they undermine the value of whatever rights to privacy people have. Specifically, I argue that it is important to distinguish rights themselves from the value that those rights have to the rights-holders, and that an essential element of privacy rights having value is that privacy right-holders be able to tell the extent to which they actually have privacy. This element, which is justified by the right-holders’ autonomy interests, is harmed by the two provisions.