After defining terms, Part I lays out the law and economics case against privacy, including its basis in economic thought more generally. Part II canvasses the literature responding to economic skepticism in the privacy law literature. Some scholars mount an insider critique, accepting the basic tenets of economics but suggesting that privacy actually increases efficiency in some contexts, or else noting that markets themselves will yield privacy under the right conditions. Others critique economic thinking from the outside. Markets “unravel” privacy by penalizing it, degrade privacy by treating it as just another commodity, or otherwise interfere with the values or processes that privacy exists to preserve.
Part III tells the love story from the Article’s title. I develop here a novel account of the relationship between privacy and markets, positioning the two concepts as sympathetic instead of antithetical. Neither insider nor outsider, the framework understands privacy as a crucial ingredient of the market mechanism, while simultaneously demonstrating how markets enable privacy to achieve its most important functions. It turns out opposites attract, just as Hollywood has been telling us all along.
The final Part discusses what’s at stake. First, at the descriptive level, this Article sheds light on certain institutional puzzles such as why the Federal Trade Commission (“FTC” or “the Commission”)—an agency dedicated to free markets and brimming with economists—would arise as the de facto privacy authority for the United States. The Article’s framework not only explains and perhaps justifies the FTC’s role in policing privacy, but also predicts other agencies such as the Consumer Financial Protection Bureau will increasingly become involved in privacy enforcement.
Second, at the level of discourse, the Article opens up new avenues of analytic inquiry, previously obscured by a mutual skepticism. In particular, the framework helps surface the role of privacy in avoiding market discrimination for the simple reason that it hides many objects of potential bias. And third, normatively, this Article argues in support of laws and policies, such as conditioning access to political databases on non-commercial use, that try to keep personal information out of markets.
Privacy and Markets: A Love Story,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol91/iss2/4