Stewart Baker writes:
It’s time to recognize just how stupid privacy law is getting. And what better way than by acknowledging the most dubious achievements of the year in privacy law?
First I should explain why I think privacy law so often produces results that make no sense. After all, most of us think privacy is a good thing. We teach our kids to respect the privacy of others, just as we teach them good manners and restraint in drinking alcohol. At the same time, no one wants courts and legislators to punish us for rudeness or prohibit us from buying a drink. We’ve already tried mandating abstinence from alcohol once. It didn’t work out so well. And it’s unlikely that Prohibition would have worked better if we’d made it illegal to drink to excess.
The problem is, some rules just don’t translate well into law. We know rude behavior when we see it, but no one wants a Good Manners Protection Agency writing rudeness regulations – or setting broad principles of good manners and then punishing a few really rude people every year. The detailed regulations would never capture the evolving nuances of manners, while selective prosecution of really rude people would soon become a tool for punishing the unpopular for their unpopularity.All that seems obvious in the case of drinking and rudeness, but when it comes to privacy, proposals for new legal rules seem endless. In fact, though, privacy is every bit as malleable and context-sensitive as good manners, and efforts to protect it in law are inevitably either so general that anyone can be prosecuted or so ham-handedly specific that they rapidly fall out of date. Either way, instead of serving the public interest, privacy laws often end up encouraging official hypocrisy and protecting the privileges of the powerful.
Read more on The Volokh Conspiracy.