Written for the Moment

Abstract

Mr. Stimson felt so strongly about the sentiment expressed in the epigraph that he took that most historically unusual of actions for a head of a governmental department: He shuttered the doors of an office under his own purview. But Stimson was talking of the interception of mail by third parties, not the behavior of the parties to the exchange. I wish to discuss here the latter subject, specifically the sale of text messages,1 e- mails,2 and letters by their addressees in pursuit of fame, fortune, and fun, but in the name of journalism or scholarship.By law and custom alike, the owner of the contents of a text message, e- mail, or letter is not the recipient, but the writer. As soon as words are fixed in a tangible medium, including electronic media, they are protected by copyright as the intellectual product of their author. The recipient owns only the particular piece of paper in which the words are fixed. But he most certainly does own that! So, may he sell it for honor or profit? This is where matters get complicated, where ethics are implicated far more and law far less, where privacy and privacy rights-more on which right below-not property and property rights are the central consideration.There is no consensus on the meaning(s) of privacy as a value, much less on whether whatever it may mean or be taken to mean constitutes a right. It is certainly not a right clearly incorporated and codified into Anglophone law, but that may have many explanations other than the lack of existence of an antecedent right. After all, before e- media and the Internet, protections for property rights were good de facto protections for privacy, and before emedia and the Internet, breaching privacy was very expensive relative to any expected gain the potential breacher might hope to realize. In such an environment- that which prevailed for millennia-it would be rather unusual to expect the legal infrastructure for a privacy right, except as against government in criminal and intimate contexts, to develop. The law develops in response to perceived social needs, not in a vacuum. So the relative silence of the law cannot, here, be taken as even a prima facie indication that there is no genuine ethical concern at issue. Then, again, the law may be silent because pretermission of the harms of privacy breaches is perceived to be less drastic than the rigidity of a regime of legal censure for speech or, more severe still, prior restraint.Despite this lack of a consensus on the nature of privacy as a value and its being constitutive of a fundamental right logically prior to any legal embodiment, two views on privacy-views that may ultimately intersect if not merge-have very substantial suasive power. One is that of Mark Alfino (2001), presented in the pages of this journal, the other is that of Steven Davis (2009), presented in the Pacific Philosophical Quarterly.We will briefly highlight their key insights and then attempt to apply them to the text messages, e- mails, and letters that are our subject here. First, Alfino (2001: 6-7):[T]here are some ... intrusions into my privacy that harm me no matter what others do with the information they glean from disturbing me. The very act of intrusion prevents me from thinking or concentrating on my life or actions. Consider, for example, the case of someone being stared at or followed, even as a harmless prank or joke. The violation to our privacy involves the way in which the offending conduct prevents us from concentrating or thinking clearly.....[W]hen someone makes it hard or impossible for me to think or plan my conduct, to lead a rational life, he ... is adversely affecting every interest I have. If we want to think about privacy as a right, especially as a fundamental right, [then] [t]he reason ... is that it protects a fundamental interest I have in being able to lead a rational, autonomous life. Leading such a life requires me to have the moral space . …