Duke Law Journal

Privacy as a Public Good

Abstract

Privacy is commonly studied as a private good: my personal data is mine to protect and control, and yours is yours. This conception of privacy misses an important component of the policy problem. An individual who is careless with data exposes not only extensive information about herself, but about others as well. The negative externalities imposed on nonconsenting outsiders by such carelessness can be productively studied in terms of welfare economics. If all relevant individuals maximize private benefit, and expect all other relevant individuals to do the same, neoclassical economic theory predicts that society will achieve a suboptimal level of privacy. This prediction holds even if all individuals cherish privacy with the same intensity. As the theoretical literature would have it, the struggle for privacy is destined to become a tragedy.

But according to the experimental public-goods literature, there is hope. Like in real life, people in experiments cooperate in groups at rates well above those predicted by neoclassical theory. Groups can be aided in their struggle to produce public goods by institutions, such as communication, framing, or sanction. With these institutions, communities can manage public goods without heavy-handed government intervention. Legal scholarship has not fully engaged this problem in these terms. In this Article, we explain why privacy has aspects of a public good, and we draw lessons from both the theoretical and the empirical literature on public goods to inform the policy discourse on privacy.