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THE INVERSE-RELATIONSHIP NARRATIVE
WITHIN CIVIL LIBERTARIAN DISCOURSE, IT IS COMMONLY HELD that there is an inverse relationship between government secrecy and the privacy of individual citizens. According to this inverse-relationship narrative, secrecy enables and perpetuates privacy invasion by shielding government prying from public scrutiny. Absent the secrecy, or so the story goes, the public would call government to account for its misdeeds, after which constitutional and statutory protections would kick in and the proper balance between public and private life would be restored. If we tell the inverse-relationship story often enough and indignantly enough, it can come to seem as though we might achieve sufficient protection for both privacy and democracy simply by limiting official secrecy.
The inverse-relationship story of how privacy is lost and gained is an appealing one. Stories that cast government as the greatest threat to individual welfare, and that envision individual welfare as protected precisely to the extent that government is restrained, have powerful cultural resonance in American public discourse. One might say that they exist in our political DNA - in the fundamentally liberal political philosophy that animates our politics and our markets.
In the case of privacy, however, the story is wrong. Devaluation of privacy is bound up with our political economy and with our public discourse about information policy in important ways that have little or nothing to do with official conduct. This devaluation proceeds in two opposite but mutually reinforcing patterns: by valorizing private economic arrangements organized around trade secrecy and by elevating openness as an ultimate good. There is an inverse relationship between privacy and secrecy, but there is an equally powerful inverse relationship between openness and privacy that for ideological reasons we are inclined to resist discussing. And the very same liberal commitments that generate the inverse-relationship story prevent us from understanding what privacy ought to mean.
THE POWER OF SECRECY ACROSS THE PUBLIC/PRIVATE DIVIDE
In the emerging networked information economy, access to personal information about current and potential customers is considered the key ingrethent in market success. The United States has become the center of a large and growing market for personal information, encompassing all kinds of data about individual attributes, activities, and preferences. Trade in some information, such as financial and health information,...