Intellectual Privacy
Neil Richards argues that intellectual privacy—the protection of records of intellectual activities—is essential to the First Amendment values of free thought and expression. While courts over the last century have construed the First Amendment to offer powerful protections for a wide array of public speech, they have given much less thought to protecting the mental processes that preceded the speech. The dominant metaphors that have evolved in the First Amendment tradition—the marketplace of ideas and the town-hall meeting—are implicitly oriented toward public expression.
To the extent that the First Amendment tradition has dealt with privacy at all, it has assumed it to be a conflicting and inferior value that has little place in free speech theory, as evidenced by the line of Supreme Court cases relying on the First Amendment to reject privacy-based challenges to the publication of personal information. Richards argues that this tradition undervalues the freedom to develop ideas and beliefs away from the unwanted gaze or interference of others, but that the need for such freedom has become increasingly germane as electronic communications expose an ever-wider range of a person's mental processes to outside observation.
Richards offers a normative theory of intellectual privacy that explains the importance of legal protection for the activities of thinking, reading, and private discussion. He argues that protection for intellectual privacy has four principal elements: the freedom of thought and belief; spatial privacy; the freedom of intellectual exploration; and confidentiality of communication. Taken together, these categories provide an overlapping and mutually supporting system of protection for the incubation of new ideas in their formative stages.
To illustrate the practical applications of a meaningful protection for intellectual privacy, Richards applies his theory to four public-policy disputes: the Justice Department's subpoenas of the search terms of millions of Internet users, the NSA's warrantless wiretaps of telephone calls of Americans speaking to persons overseas, the use of online profiling by private companies, and the introduction of evidence of a defendant's reading habits in a criminal trial. Richards suggests that a greater attention to intellectual privacy could improve our resolution of these disputes in two ways. First, intellectual privacy could inform constitutional doctrine about the First and possibly the Fourth Amendments. Second, incorporating the protection of intellectual privacy into our nonconstitutional law, institutions, and social practices can help foster ideas in areas not traditionally governed by judge-made rulings on freedom of expression—as, for example, the threats to intellectual privacy posed by businesses. Richards concludes that we must recognize and protect intellectual privacy if we are to retain our traditional commitments to free thought and inquiry in the face of the political, technological, and cultural challenges of the new century.
