According to this view, privacy should not be protected when its primary effect is to impede the optimal deterrence of crime. In contrast to the moral approach, which treats privacy as a fundamental right, the economic approach views it as an (normatively neutral) aspect of self-interest: the desire to conceal and control potentially damaging personal information. In this Article, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test.
This 'moral' approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. The 'reasonable expectation of privacy' test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate.
