Wednesday, May 3, 2017

The Privacy Rights of a Girl in Shower: The Private Property Society to the Rescue

Micahel Rozeff writes:
Walter (Block) in essence was asked this very interesting question: If a boy invited a girl to his apartment and she asked to take a shower and did so, what grounds does she have for action against the boy if he secretly photographs her? In a Blockian libertarian panarchy, she has no privacy rights. That’s up jump street. In fact, if the boy then blackmailed the girl over the photos, she also would have no right to protest, since the Block world is the Rothbard world in the blackmail case. But if she has no rights against blackmail, she surely has no rights against demanding that he hand over the photo or stealing them when he’s not looking or beating him up to get them.
Nevertheless, I am astonished to read that Walter argued that the boy and girl had a “tacit agreement” that such photographing is out of order and not to be done without her permission. And this he says comes “From culture, from expectations, that are typical when a guy invites a girl to his abode.” These suppositions are outside the Blockian libertarian law that he expounds on other occasions. If there is aggression in taking a photograph, where is it? Do custom and expectations transform something that involves no physical violence against the girl into violent aggression? That’s an unacceptable leap from the strict libertarian postulate to which Walter typically adheres strictly. That opens the door to all sorts of subjective notions in a host of other possible situations. Walter has here virtually defined a privacy right without calling it by that name.
I think we have to accept that the non-aggression principle combined with no physical aggression implies that the girl has no right of privacy and no right of action against the boy for secretly photographing her, and he is under no obligation or duty to tell her he’s going to do that. The NAP, as I’ve pointed out before, is not the be-all and end-all of all “good” law-making.
I agree with Rozeff when he writes above:
 Nevertheless, I am astonished to read that Walter argued that the boy and girl had a “tacit agreement” that such photographing is out of order and not to be done without her permission. And this he says comes “From culture, from expectations, that are typical when a guy invites a girl to his abode.” These suppositions are outside the Blockian libertarian law that he expounds on other occasions. If there is aggression in taking a photograph, where is it? Do custom and expectations transform something that involves no physical violence against the girl into violent aggression? That’s an unacceptable leap from the strict libertarian postulate to which Walter typically adheres strictly. That opens the door to all sorts of subjective notions in a host of other possible situations. Walter has here virtually defined a privacy right without calling it by that name.

You get into all sorts of problems when you tie culture in with a libertarian society. What if the majority support some kind of cultural values you don't?

But I also find Rozeff's view incomplete when he writes:
I think we have to accept that the non-aggression principle combined with no physical aggression implies that the girl has no right of privacy and no right of action against the boy for secretly photographing her, and he is under no obligation or duty to tell her he’s going to do that. 
The Private Property Society solution would be broader. The boy could make clear that on his property he operates under Block's law or alternatively that he operates under Rozeff's law.

Thus, there would be no central planner to declare that Block's law is the only correct law or the only correct law is Rozeff's law.

FDurther,  in this day and age, it would be very easy for a girl to discreetly check on, say, Block's smartphone app to see if the boy adhered to those rules or some other, Perhaps, the boy has subscribed to no identified laws for his property. Well then, she would know by going on to his property she would be stepping into the wild west----something she may or may not be willing to do.

I happen to believe that Block and Rozeff are two of the most important writers at LRC, but in this case, they hold differing views. I would personally rather live in an area where Block's rule is recognized on this point. But, I don't want to be a dictator here. Let everyone set their own rules for their own property that way you never get into a situation where you are out ruled based on a majority or some outside determination of culture etc..

If there were more Rozeff's in an area, private property would be overruled by his view which would open up all females to being filmed naked (even in the bathroom) on all property even if a large majority of us didn't want this to occur.

Leaving decisions at the step of the property owner with total respect for property owners to set the rules for their property eliminates the possibility of Block's rules or Rozeff's rules applying to us on our property even when we don't want them to simply because some outside belief has overruled private property rule.

And just like now, we would stay away from "bad" sections of town where rules don't exist or are far from our liking---but leaving yahoos to be yahoos because it also results in our ability to set sane property rules for our own property and those we want to associate with. If respect for private property is the bedrock of a society----upon which we can build whatever world we choose.

It is the ultimate anti-dictator society.

 -RW 


25 comments:

  1. I took Block to be opining on when an NAP (libertarian law) violation has occurred, meaning when it would be legitimate to use force against the boy in retaliation. Rozeff was saying "Not in this instance." But that's not the end of the matter. Depending on local norms (religious, cultural, ethnic, etc.), if the boy's behavior breached what is regarded as acceptable, short of an NAP violation, then he could be subject to sanctions other than the use of force, such as communal shaming, ostracization, exclusion, etc.

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  2. PPS is the ultimate meta-dictator society. "King of the Castle" indeed. 100 million tyrants throughout the land.

    Block is 100% correct here, although I'm not familiar his broader view of privacy rights that Rozeff leads with. What grounds? What grounds!?! How about FRAUD and implicit threat of Sexual Assault? NAP is certainly violated here.

    Threatening the use of coercion or violence is a violation of NAP. For instance, this pervert cannot stalk a woman and confront her to tell her he is going to rape and murder her. Threatening violence is aggression. It can be argued that taking nude photos without consent is evidence of a threat of sexual violence.

    The contract is for a hot shower, not a hot shower and secret nude photos. The offer was fraudulent. The property owner a pervert and swindler. The victim deserves proportional damages.

    In PPS there is no contract. Even where there is contract or sign postings, as RW mentions here; there is still no fraud. The contract on private property may as well have been written at the Mad Hatter's Tea Party. It's unenforceable nonsense.

    You can cross all the t's and dot all the i's and read the fine print, but it doesn't matter. You step onto another person's property and you put your life in that property owner's hands. Same as now, sure, but at least now we have means for retribution against lawbreakers - even property owning lawbreakers.

    Imagine Lucia the low income migrant renting from a landlord in PPS. The contract states the landlord will leave the tenant in peace. However, 6 months later the landlord decides to rapethe tenant. What's the PPS answer? So sad, so bad, Lucia! Shouldn't have gone on another man's property! Don't worry, you can tell your story and maybe other people won't rent from the bad man anymore. Should he also murder her? Well there's no investigation he needs to cooperate with. No man to fear. The whole situation is shrouded in doubt so only an insane man would seek to avenge Lucia's murder.

    Welcome to the Jungle Baby! You're Gonna Die!

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    1. Thanks, Stuffed Pimiento. I am glad other people are picking up on this. I brought this point up in my previous comment (about contracts not being enforcable in PPS), but Robert chose to ignore it, instead focusing on my "free beer" example.

      The landlord example is a good one. In PPS, you would basically have a return to feudalism. Which would be fine for some of the neoreactionary followers of Hoppe. In a way, feudalism is the natural conclusion of propertarianism.

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    2. My pleasure. This is a great topic and fantastic blog.

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  3. It would be impractical for every private property owner to have a comprehensive set of rules which apply to his grounds.

    There is another possibility here which could be more workable. There could be a default rule which applies in general (here, that no unauthorized filming may be undertaken) with the possibility that a private property owner could override this default rule on his premises (e.g. he posts a sign that visitors may be filmed without their knowledge or permission while on his property).

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  4. Taking photos in this scenario described without consent is NOT an act of aggression? Do any of you even have daughters?

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    1. Remember, "aggression" is specifically defined under the NAP to be actual or threatened physical invasion of someone else's body or legitimate property. Taking such a photo by itself does not meet that test (despite Stuffed Pimento believing it amounts to an implicit threat of rape, which is quite a stretching of the scenario posed).

      There are many bad things we wouldn't want to happen to our kids which are not NAP violations: a partner describing on Facebook their intimate moments, selling our children certain narcotics, etc. The point is, we cannot legitimate the use force to mold everyone in society to how we want them to behave. That is the Progressive and moralizing conservative statist project. We need to develop other, peaceful means (communal shaming, ostracization, exclusion) to respond to actions which, while unacceptable, do not involve the initiation or threat of force.

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    2. NAPster... thank you for answering my second question.

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    3. Unowned, if not the NAP, how would you define the standard by which it is legitimate to use force against the deviant? Those with sons might want to know.

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    4. I think those standards have been hashed out in these comments sections fairly well. But in this case I would tell my son to not do anything so dishonorable as to justifiably enrage the male siblings or father of his female house guest/modeling talent.

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    5. That's good advice for your son, and it is good advice for your daughter to be careful about showering at a young man's place (note that the boy/girl roles could be reversed and still be a problem, so these are sound forms of advice for all kids). But that doesn't answer my question about when it is legitimate to use force against a deviant. I was suggesting that the NAP is that standard, which you have rejected. I'm genuinely interested in your alternative standard.

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    6. In plain sight is fair game as far as NAP goes. A woman sunbathing topless on the beach for example. It's pervy, but doesn't violate NAP.

      This is not in plain sight. This is first and foremost contract fraud. A case can also be made the photos taken under these circumstances amount to psychic aggression - same as a threat of violence like stalking.

      Nude photos are taken, sold and published all the time. The model receives a fee for her services. It can be argued these photo shots also constitute forced labor aka slavery, especially if the pervert publishes the photos.

      Or in your view does the pervert own the copyright to the photos once he snaps them?

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    7. Well, Stuffed Pimento, you're re-defining the NAP then; in every rendition I've ever seen, violation of the NAP only captures forced physical invasion of someone's body or property. For good reason: the physical borders of a body or object are clear and thus any invasion of them is clear; if we're going to say that hurt feelings, mental anguish, etc. are a violation of the NAP, then we're moving the standard of proof from a relatively objective measure to a highly subjective measure (sort of like limiting the so-called right to free speech if it offends someone).

      As to copyright, as Stephan Kinsella has written and spoken on in great volume, the notion of "intellectual property" is inconsistent with self-ownership and private property under libertarian law. The pervert owns the camera and any physical photos he produces, but not the intangible images (no one does).

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    8. I'm old fashioned and think anything that could do harm to a woman's reputation is particularly egregious. So while it may not explicitly do physical or financial harm, it does harm to their status and therefore long term financial survivabilty, and for what reason?

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    9. NAPster, no one said anything about hurt feelings. I can call you all the bad names in the book, but when I violate NAP is when I threaten coercion or force. Some threats are veiled. In a libertarian society, Mary may bring charges against pervy Tom for saying "Locking the doors does no good if I'm already inside your home." The private courts can decide what to do with Tom, if anything.

      In any case, this man clearly commits fraud and should be forced to make amends with the woman or become an outlaw - anyone may violate NAP against this man until he is back in line with the law.

      I don't accept Kinsella's arguments on IP. Regardless, since these photos were taken fraudulently, they cannot legitimately belong to the pervert.

      Let's add this wrinkle: Turns out the woman IS a model and she has signed an exclusive 5 year contract with Hustler Magazine that the only nude photos she'll take are with their photographers for their publication. If the pervert publishes the nude photos, Hustler can sue the woman for breach of contract and should win (following your argument)!

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    10. " Turns out the woman IS a model and she has signed an exclusive 5 year contract with Hustler Magazine that the only nude photos she'll take are with their photographers for their publication. If the pervert publishes the nude photos, Hustler can sue the woman for breach of contract and should win"
      That is a better and more contemporary way of stating my comment above. Even though we may not all have exclusive contracts, modeling or otherwise, our name or reputation has value.

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    11. Stuffed Pimento, where is the threat here? All we know is that a boy took a photograph of a girl in the shower. We do not know whether he wishes to keep it for himself, show it to her as a flirtatious joke then destroy it, share it broadly, etc.

      As to fraud, that is the taking of property under false pretenses, essentially theft. Since, as explained elsewhere, no one can have a property right in their image, what has been stolen from the girl? Moreover, theft means you've been deprived of something, but the girl still "has" her image!

      With respect to your wrinkle scenario, I would imagine that the outcome of that case would turn on whether the girl actively took the photo of herself, or asked the boy to do so, with a view to publishing it outside of Hustler Magazine. If the photo was taken and published without her consent, it would seem difficult for Hustler Magazine to show an actual breach of contract, meaning wrongdoing, on her part. But that's all besides the point as to whether the boy is guilty of a violation of the NAP; it's a contractual dispute between the girl and Hustler Magazine, which will turn on the terms of that contract and the facts. I don't see the connection with my prior arguments. The only connection I would draw is that Hustler Magazine could not sue the boy, as that publication has no property right in the girl's image and (I'm assuming) no contract with the boy.

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    12. NAPster, I said the fact she was psychicly threatened can be argued in the private courts in a libertarian society.

      Fraud is misrepresentation or omission of information when making contracts, usually to deceive the other party. In this case, the accepted offer was a nice, hot shower. The perv omitted the clause that he would take secret nude pics of the woman if she agreed to shower. The contract is invalid and the property obtained fraudulently. If he never solicited her to shower, he would have no means to take the nudes.

      The fact that he deceived the girl into undressing makes me think he is psychicly harming the girl.

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  5. Photographing a naked women without her consent on your private property IS an act of aggression against her and violates the NAP.

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    1. To define violations of the NAP you first need to have a theory of property rights. Assuming there is no contract, what you're saying through this example is that someone's image is their property. But the image only exists in the minds of others, and how can you have a property right over the minds of others? It's the same argument Rothbard made against defamation: A cannot have a property right in his reputation, since his reputation only exists in the minds of others.

      In addition, property rights are only necessary to avoid conflict, and there cannot be conflict over intangibles such as images, ideas, etc. Unlike a physical object, which only one person can use at a time, with intangibles everyone can use it at the same time without any conflict with the others.

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  6. I honestly respect Wenzel's commitment to follow the NAP wherever it leads. He doesn't try to paint a prettied up version to make it seem like paradise.
    That being said, his idea of a PPS is shaping up to be a pretty terrible place to live, at best a maze of petty technicalities, at worst an idea completely uncompatible with human nature, much like communism.
    But to be fair, expecting any political system to completely eliminate the dark aspects of the people living in it is the exact utopian bullshit that has been peddled for so long, so who knows.

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    1. Well said. Perhaps the best advice is that if you got to Wenzel-ville, better lock up your daughters.

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    2. Peterson, the opposite of a PPS is a system where some arbitrary group gets to forcibly impose its behavioral standards on everyone else's bodies and property. Great if you can be in that group, not so great if you're not.

      There is no utopia, as humans are imperfect. But whereas in a non-PPS imperfection (evil, incompetence, etc.) is centralized, and everyone is impacted by the same bad actor at the same time, in a PPS imperfection is decentralized and only those directly interacting with someone acting badly are impacted.

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    3. NAP does not lead to PPS. PPS is more compatible with NAP than the current system. However, in PPS the State just changes from government to property owners on their own properties. In PPS the State is decentralized, absolute in power, but limited in scope. Wenzel should clarify for his readers.

      In PPS may a property owner launch missiles from his back yard even if it destroys another man's property? The answer is yes! You may say his neighbors or their hired thugs will kill him (who attacks a guy who has missile power?), so he is violating norms, but they have no right to harm him in PPS. See the hypocrisy if they storm his property and kill the King in his own Castle?

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