Posner's Argument Analysis

Aside from threatening our freedom, ignoring the differences between personal and corporate privacy results in unusual conclusions. We often make a clear distinction between general corporate rights and personal rights, because they have different meanings and purposes in different contexts. And we rightfully treat humans and corporations differently. For example, individual and corporate taxes are not one in the same. Unlike most individuals, corporations end up saving money each year when it comes to taxation, as Catherine Rampell points out in her opinion article, “Corporations are people. So what if people were corporations?” But in recent years, the United States has accorded corporations more rights on the grounds that they are, in a

sense, humans. These rights include freedom of speech and religion, and as Posner discusses, privacy. But without assigning a precise definition to what exactly a corporation is, it is unclear to many people what these new laws entail. Rampell sheds light on this issue by arguing that if we do not distinguish between corporate and individual rights to freedom of speech, it only seems fair that humans should receive all the benefits that corporations get. We, too, should save billions on taxes. After all, we are “indistinguishable, equally protected ‘persons’” (Rampell).
A less obvious example that UCLA law professor Adam Winkler cites is that because corporations can “merge” with any group, humans should be able to marry whomever they want. But when we write laws regarding taxes or partnerships, we naturally seem to place individuals and corporations in separate categories (Rampell). Similarly when humans break laws, they face different consequences than corporations do. If humans were to receive corporate treatment, they would indeed receive punishment, but would never have jail time, because a corporation cannot go to jail (Rampell). Considering corporations and people as one in the same thus leads to bizarre conclusions that most would not support. There is no reason then that placing corporate and individual privacy in the same category would not have similar results; hence, we should regard them separately. Posner could continue to argue that corporations deserve privacy rights for efficiency reasons, but he would be unable to say that individuals deserve less of this privacy.
To formulate a compelling argument, Posner thus needs clear and distinct definitions regarding corporate and individual privacy.

This would ultimately lead to a restructuring of his argument, since the two definitions of privacy are strikingly different. Yet Posner could potentially fashion a counter argument through the dictionary definition of “corporation” that Nina Totenberg cites in an NPR article: “’a number of persons united in one body for a purpose” (Totenberg). This indeed points to several similarities between corporations and people that Posner could use to group the two together. This definition still poses a problem, though, for if we regard corporations as associations of people, it makes little sense to only give individuals privacy within the

corporation.
Posner could address this by pointing to the Supreme Court ruling in many business cases that, “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs” (Winkler). Since this definition clearly separates corporations from individuals, Posner could advocate for giving corporations privacy rights without offering the individual any. Through this line of thought, Posner could present economical reasons for removing individuals from a corporation’s legal rights. For as Adam Winkler argues in Slate, “the obligations the law imposes on the corporations, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders,” allowing the corporation to take more risks without threatening someone’s personal assets (Winkler). In this sense, excluding the individual from certain rights is beneficial for both parties. Nevertheless, this argument would still only illustrate why, within the company, individuals do not need privacy. It would not show how privacy should be allocated in their personal lives.
Posner might, however, counter my argument entirely by saying that he provides a strictly economic analysis, which only discusses the proposed privacy allotment’s effect on the economy.

But not only is it difficult to prove that corporations are more efficient with their privacy than individuals are, this also circles back to the policy’s affect on individual autonomy. And I believe it is necessary for Posner to consider the implications of his argument for humanity: an ethics argument that does not propose the betterment of society is unlikely to lead to better laws. For although Posner could use his claim that “history does not teach that privacy is a precondition to creativity or individuality” to argue against privacy’s relation to autonomy, it is inevitable that his policy would impact society for good or bad (Posner 407). Posner needs to address the effect by presenting contemporary evidence to support the view that privacy is unimportant to human emotion and individuality since his historical argument is irrelevant. Early philosophers such as Aristotle recognized the important “distinction between the public sphere of political action and the private sphere associated with family and domestic life,” and so while privacy may not have looked the same in these past societies, it nevertheless did exist (DeCew). Since cultures and social conditions have changed dramatically since Aristotle’s time, it is difficult to make a relevant comparison between privacy then and

now.
In sum, individuals and corporations are so fundamentally different that we cannot regard the types of privacy allocated to each as the same. If we were to take certain privacy rights from individuals and redistribute them to corporations, this would likely have detrimental consequences to society—a fact that Posner’s simplistic argument ignores.