Unpopular Privacy: The Case for Government Mandates

Article Source: Oklahoma City University Law Review, Volume 32, No. 1, pp. 87-102, 2007
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This article analyzes the effect and necessity of laws mandating privacy on unwilling individuals.


Policy Relevance:

Privacy law most often addresses governmental protection of optional privacy; however, forced privacy is an issue that should be more thoroughly addressed by privacy scholars.


Key Takeaways:
  • Generally, privacy issues take the form of protecting individuals from outside intrusion into their private lives and information. Privacy law is largely dedicated to interpreting these types of rights and how they correspond to the constitution and state laws.
  • However, a second type of unpopular privacy law also exists. This includes any type of privacy which is forced upon the individual by law regardless of their personal choices.

    • The federal “don’t ask, don’t tell” policy in the military is one example of forced privacy.
    • Another example of forced privacy is the Children’s Online Privacy Protection Act (COPPA) of 1998, which prevents children under thirteen from making purchases or entering contests online without parental consent.
  • The beneficiaries of laws mandating privacy are often either the government, as in the case of “don’t ask, don’t tell,” or the individuals themselves, as in the case of the COPPA. However, the question of how far the government should go to either protect itself, or to protect the unwilling, has not been sufficiently addressed by privacy scholars.
  • Privacy is an important human good and it is not always beneficial to allow privacy to be waived by the individual. While liberal societies properly constrain government coercion, they also properly constrain individual choice.
  • Thus, governmental mandates forcing privacy upon unwilling participants can be justifiable provided the use of such mandates is closely monitored for abuse.



Anita Allen

About Anita Allen

Anita L. Allen is an expert on privacy law, bioethics, and contemporary values, and is recognized for her scholarship about legal philosophy, women’s rights, and race relations. In 2010 she was appointed by President Obama to the Presidential Commission for the Study of Bioethical Issues.