See Update at the end of this post.
In his latest column for Bloomberg, “Seven Lessons About Blackmail,” economist Tyler Cowen takes up the issue of blackmail. What motivated it, of course, as he makes clear, is the recent controversy involving Amazon’s Jeff Bezos’s allegation that the National Enquirer has blackmailed him.
Although Tyler recognizes that a case needs to be made that blackmail should be illegal, he doesn’t do justice to the issue. His only statement on the issue in his piece, other than a brief mention that Jeff Bezos is one of the good guys, is this:
Finally, most people now have a new and better sense of why blackmail should be illegal. Economists have long faced an embarrassing question: If it helps deter undesirable actions, what exactly is wrong with blackmail? The traditional answer has long been that laws against blackmail prevent would-be blackmailers from investing too much time and energy into digging up evidence of wrongdoing. Yet those hardly seem like major costs, no more than police patrols would be.
Perhaps a better objection to blackmail is that it distracts everyone’s attention, degrades public discourse and, in the largest sense, works against the possibility of second chances in life. Of course there should be debate about what constitutes good and bad conduct. But the focus should be on what people did or did not do, and not so much about the drama of how the information was obtained.
Tyler’s argument for making blackmail illegal is pretty weak. Facebook distracts almost everyone’s attention and even more attention than blackmail does. It arguably degrades public discourse. I’m not sure that FB works against the possibility of second chances in life; in some cases it probably does. But, hey, that’s at least two out of three. So would Tyler make Facebook illegal? And if not, why not?
To Tyler’s credit, he does link to a 1985 law review article by economist Walter Block and historian David Gordon, “Blackmail, Extortion, and Free Speech: A Reply to Posner, Epstein, Nozick and Lindgren,” in which they lay out the case for why blackmail should be legal. Unfortunately, Tyler doesn’t discuss it. Block and Gordon do a devastating critique of legal scholars Richard Posner and Richard Epstein and I recommend the article.
Tyler links to Bezos’s post on the issue. One Bezos sentence that is telling is this one:
If in my position I can’t stand up to this kind of extortion, how many people can?
Why is it telling? Because the issues of extortion and blackmail are very different, as Block and Gordon make clear. Here’s a key paragraph in their piece:
As defined, blackmail should not be accorded the legal sanctions usually meted out in response to criminal behavior since it does not entail the violation of rights. Rather, it consists of the offer of a commercial trade. The blackmailer will remain silent about the humiliating, embarrassing or even criminal secret of the blackmailee, accepting payment in return. If the offer to trade money for silence is rejected, the blackmailer will publicize the secret, which is part of his rights of free speech. In these terms the distinction between extortion and blackmail may be made as follows: extortion utilizes a threat to do something illicit, such as commit murder, arson or kidnapping. The threat of blackmail is limited to what would otherwise be licit-commit an act of free speech. If a person has the right to do X, he necessarily has the right to give warning of the fact that he will do or may do X-that is, to threaten to do X. Blackmail is thus a noncriminal act.
I do recommend reading their whole piece and also read footnote 50 to see where David Gordon parts company with his co-author.
One pair that I would like to hear from on this are Georgetown University philosophers Jason Brennan and Peter Jaworski. They wrote a book titled Markets Without Limits. The description of their book on Amazon states their thesis: “the question of what rightfully may be bought and sold has a simple answer: if you may do it for free, you may do it for money.” Although I haven’t read the book, a friend who has read the book carefully tells me that this thesis is an accurate summary of their message.
So now let’s consider blackmail. The essence of blackmail is threatening to reveal information about someone unless someone pays you, in money or in kind, not to. We are free not to reveal embarrassing information about people. So Brennan and Jaworski would have to argue, given their premise, that we should be free not to reveal information about someone if the person pays us not to.
Do they so argue? No. Again, according to this careful-reading friend, they leave the question unaddressed.
I would love to see them address it.
Update:
Robin Hanson weighs in, noting that he has, in previous posts, disposed of all of the arguments he knows of for making blackmail illegal.
READER COMMENTS
john hare
Feb 14 2019 at 4:47pm
My largest objection to legalizing blackmail would be the ease in which threatening to reveal can become threaten to create seemingly harmful material. Unscrupulous people would likely become more daring in their threats of accusations if there were no legal downsides.
Public figures in particular are vulnerable to accusations that may have little or no basis in fact. I am willing to be proven wrong in thinking that in this case conventional law may be for the best.
Joseph K
Feb 14 2019 at 5:37pm
It seems like what’s wrong with blackmail is that we have a certain right to privacy. If someone is threatening to reveal some secret of yours, they’re coercing you into paying money to protect your right to secrecy. But your right to secrecy should be, generally, given to you for free. Or to put it another way, there are many secrets that people ought not to reveal, and if someone is forcing you to pay money to not reveal what they ought to not reveal anyways, it’s a lot like a protection racket (since there they’re forcing you to pay money not to destroy your property, which they ought not to do).
Note that this line of reasoning only makes sense if the thing they’re threatening to reveal is not something that shouldn’t remain secret (such as if you’ve committed a serious crime or done something deeply immoral).
Mark Z
Feb 14 2019 at 8:02pm
It’s hard to assert a right to privacy beyond forbidding trespassing and the like that doesn’t impose an unwarranted obligation on others. We’d agree, I assume, that I’m not violating my neighbor’s rights for accidentally discovering, in public, that my neighbor secretly smokes? And I’m not violating his rights by telling others that he smokes? What if his wife, who thinks he doesn’t smoke, pays me money to tell me if I know of anything he does that she doesn’t know about? As David mentioned, if I have a right to do it for free (as gossip), then how can I not have a right to do it for money? And by extension, I have the right not to do it, either for free or for money, no?
Moreover, what constitutes something deeply immoral – let alone relevant for some useful purpose – is not something everyone agrees upon, and traditionally the state avoids making such judgments. I don’t think a positive right to privacy is possible without being coercive in and of itself. Sure, you have a negative right to privacy in the sense that you should be free to cover your windows and no one has a right to know what does on behind them. But if your windows are open, no one on the street has an obligation to avert their gaze or keep to themselves what they see. One gray area I can see, though, is the issue of embarrassing information obtained through criminal means, such as trespassing or stealing one’s computer.
Ray Lopez
Feb 16 2019 at 8:43am
@Joseph K – correct, blackmail is theft of privacy or technically intellectual property (the right of publicity). It’s well recognized in places like California. In fact, in California even the publication of a true but embarrassing fact of a celebrity is banned (but rarely sued upon, since the caselaw is so thin, most people prefer traditional grounds like defamation). If you favor IP (which I think most libertarians do not) you should favor laws against blackmail.
Mark Z
Feb 14 2019 at 7:50pm
I think Cowen ignores the possible upside of legal blackmail: he assumes that in a world where blackmail is illegal, the would-be blackmailers are not releasing the information; doubtless this is the case for some, but there are other would-be blackmailers who instead release the information for free (out of malice), for monetizable publicity (tabloids, etc.), or for simply sell the information to specific buyers (e.g., someone buying information about a cheating spouse from a private investigator). There are, therefore, Pareto-efficient exchanges – where the ‘victim’ buys silence from a blackmailer who, if blackmail were legal, would release the information in any case.
I also doubt whether the illegality of blackmail improves public discourse. I think it may put the cart before the horse: demand for embarrassing information is itself a product of the vulgarity of public discourse. It’s possible that the illegality of blackmail funnels embarrassing information into the tabloids and news, because it leaves those as the only way it can be monetized.
Personally, I think it would be great if America’s attitude toward the personal lives of public figures were more like Israel’s, where (at least I’ve been told) the sexual escapades of politicians are more likely to be shrugged off as irrelevant than scandalized, as opposed to here in the US. I’m not sure that the illegality of blackmail though necessarily has a positive effect in this regard.
Duncan Earley
Feb 14 2019 at 11:47pm
If blackmail is just payment for silence then it seems reasonable to be legal, but what if it requires some other action or inaction from the blackmailed person for the silence? Or is that extortion? What of the action itself is legal, for example you force someone to marry someone by using blackmail?
Salem
Feb 15 2019 at 5:11am
I think your argument re:Brennan/Jaworski goes too far, because it elides the distinction between wrongful and illegal. Brennan/Jaworski argue (and I agree) that a legitimate act doesn’t become illegitimate because it is done for money. But not all wrongful acts should be illegal, because of costs of enforcement, identification, etc. Classic example – adultery.
However, it might well be the case that some wrongful acts are not worth criminalising when done for free, but worth criminalising when done for money. And I don’t see Brennan/Jaworski claiming otherwise. A good example might be in agency situations. It is wrong for my lawyer to give me anything but the best legal advise, but it would be too invasive to have too strong a criminal law here, for fear of criminalising legitimate differences of opinion. However, we might well criminalise a lawyer taking money from a third party to change his legal advice to a client, simply because that is a much more clear-cut case.
There is no doubt that the scope of freedom of speech includes many wrongful acts, because we don’t want a government parsing speech too finely. But we might be more willing to allow government to criminalise speech for money more aggressively than speech done gratis, because we are less worried about sweeping in legitimate acts. Publishing nude pictures of someone without their consent is surely a wrongful act, at least if not done in service of some overriding public interest. And so, arguably, is the prototypical act of blackmail. So I remain unconvinced that there is much of an argument, on these premises, to repeal laws against blackmail.
JFA
Feb 15 2019 at 8:56am
I think Salem has it right. I read Markets Without Limits, and they argue that if one’s action is morally (not legally) allowed, then you can do it for money. But I imagine this muddies the water on what kind of blackmail should be allowed. Revealing that someone is cheating on their spouse… that might be okay as it is informing someone (the other spouse) of broken promises (this is a Kantian reading). Revealing that someone is gay… most likely not okay. You can make arguments either way, and I don’t feel like writing a dissertation to defend those two examples. This is just to illustrate the flaw in saying that blackmail is okay because of free speech. If blackmail is based on the threat of engaging in morally impermissible speech, making blackmail free from legal restrictions only encourages the pursuit of those morally impermissible speech acts. This doesn’t mean you should make those speech acts (in themselves and absent from blackmail) illegal, but it certainly means that you probably shouldn’t be allowed to profit off of them.
“If a person has the right to do X, he necessarily has the right to give warning of the fact that he will do or may do X-that is, to threaten to do X. Blackmail is thus a noncriminal act.” If X is done with the intent of causing harm to someone, does that person necessarily have the “right” (in a natural law sense, which seems to be the authors’ perspective) to do X? Again, the issue is muddy. I get the sense the authors’ are not engaging in how difficult the task of defining rights can actually be. And there is still the issue of competing rights. As one commentor said above, there are some scholars who think we have a right to privacy. If someone’s right to do X comes up against someone’s right to have X not done, what then?
The thing about blackmail is that the victim of blackmail is being forced to participate in a transaction that they would otherwise not engage in (or is it a problem of monopoly where the victim can only deal with one supplier). The whole thing is tinged with a hue of coercion.
David Henderson
Feb 15 2019 at 9:53am
Peter Jaworski informs me that I misunderstood the meaning of the word “may.” He and Jason Brennan use to refer to what’s ethically permissible, not what should be legal.
My major concern is over what should be legal. Thus the title of this post.
You write:
That’s false. There is no coercion involved. The victim is free not to participate.
JFA
Feb 15 2019 at 11:15am
I guess it all depends on what you mean by “free to not participate”. There are gradations of coercion. Obviously, if someone holds a gun to your head to make you do something, that’s coercion. But imagine someone says, “I’ll reveal your secret sexual orientation unless you pay me,” and the revelation of that fact will lead the victim to be shunned by his/her family, causing unbelievable anguish and life disruption. While not a gun to one’s head, it’s not clear to me that “not participating” in the blackmail is a feasible option either. It seems the notion of externality plays a role here. If I am directly affected by someone else actions, it doesn’t seem that I am “free to not participate”.
If a bully says to a nerd, “If you don’t give me your lunch money, I’m going to tell everyone in school that you’re gay” [assume the allegation is true to avoid issues of slander, etc., though the possibility of false allegations is potentially a hiccup in the argument of legally allowing blackmail], the nerd has to participate one way or the other. He either has to pay the bully or he has to suffer the consequences of the rumor.
We see the instance of the gun to the head as coercion because we believe people value their lives and shouldn’t be forced (by an outside agent) to arbitrarily choose between living and doing something they would rather not. The line being drawn at physical violence is arbitrary, though. People value lots of things. I think applying the concept of coercion to things other than physical violence can be slippery, but I also think a solely physical definition of coercion is a bit narrow.
If your concern is over what should be legal, it is still an open question. All speech is not legal. There are noted restrictions, so a defense of blackmail solely on legality of speech ignores all the nuances of those restrictions. We can always just make speech acts that invade someone’s privacy illegal, and the problem is solved (though that certainly creates a host of other issues). But I also think that the authors of the article you linked to are equivocating between legality and natural rights (which goes beyond mere legislation).
David Henderson
Feb 15 2019 at 11:59am
JFA, you write:
You’ve proved too much. If that’s enough of a reason to ban blackmail, it’s also enough of a reason to block people from saying bad things about you even if they’re not blackmailing.
JFA
Feb 15 2019 at 1:39pm
That’s not quite right. Just because you are not free to not participate doesn’t mean that the speech acts should be illegal (as there is a host of issues that come from banning speech acts),and just because something bad happens to you doesn’t mean what caused that bad thing should be illegal. It’s all about what margin you want to target. There are always things that occur that one does not have the choice to avoid, but what presumably the law should curb incentives to invest in increasing those interactions. So if you allow blackmail to be legal, there is more of an incentive to invest in probing people’s private lives and increasing the number of incidents in which that information becomes public (i.e. creating transactions that the victims cannot avoid participating in). Blackmail shouldn’t be illegal just because people will be negatively affected by making public what the victim wishes was private. It should be illegal because it increases the incentive for people to invade someone’s private life and make public what victim’s wish to be private, i.e. it increases the number of transactions people are not free to not participate in.
I’ve heard a couple of economists say that externalities are everywhere, and that is certainly true. Living in a society, one cannot help but be affected by other people’s actions (regardless of one’s preference to not participate). This is also why there are laws restricting people’s activities, even if those activities are not physically harmful. If you want to make blackmail legal, it seems that the law should allow a person to follow someone else while yelling through a microphone, or to allow people to expose themselves to others, or to allow a man to follow a woman and describe various sexual improprieties he would like to do to her. These are all allowed if the only consideration is for people’s freedom of speech and expression. Yet, we restrict these types of activities under anti-harassment laws. One could make a case for these restrictions based on rights (presumably there is some minimal right to be free from harassment) or on efficiency grounds (it might be cheaper to organize the restrictions on this type of behavior rather than having all the victims paying the harassers to stop).
Robin Debreuil
Feb 15 2019 at 10:07am
Settlements with nondisclosure and nondisparagement clauses always struck me as essentially blackmail – albeit where the ‘victim’ is often the initiator. Do we have a right to offer people incentives for their silence? Why is this is less controversial?
David Henderson
Feb 15 2019 at 4:57pm
Really good question. I hope someone who thinks blackmail should be illegal will address it.
ml
Feb 15 2019 at 8:45pm
Settlement agreements go like this:
Victim is wronged.
Victim sues.
There is litigation risk on both sides of going to court.
Victim decides he can be made close to whole while giving up right to disclose terms. Knowing this will bring about a positive outcome, he agrees to such a settlement.
Blackmail evolves from one person deciding they can benefit from being able to potentially embarrass/humiliate someone else. Blackmail does *not *evolve out of a process that seeks to right a wrong,
If you think these things are remotely the same, you need to loosen your grip on your position.
David Henderson
Feb 18 2019 at 11:42am
Let me give an example of a recent non-disclosure agreement that I know of. Someone is fired from an organization. The organization’s managers know that she knows something about the organization that could embarrass it. She asks for a severance package. They offer a much lower one. She pushes further, never mentioning that she knows certain things about them. They figure out (I assume, because all I know is her side) that she has certain things on them that she might use. So when they notice her taking a strong stand, they make the severance package more generous but insist on a NDA. She takes the money and signs the NDA.
What if she had said “Please give me a more generous severance package or I will blow the whistle?” Would you call this blackmail? If no, why not?
If yes, then it would seem that in your mind it matters who initiates. Again if yes, is that what you think?
Jon Murphy
Feb 15 2019 at 11:04am
This could be part of a larger conversation regarding the justness of legislation designed to protect one’s reputation. Blackmail is an attempt to harm a person’s reputation.
If we take a classically liberal view of the state, that one of the major purposes of the state is to prevent people from messing with your stuff and vice versa (to use the terminology of my professor Dan Klein), then we have an issue of whether or not one’s reputation is part of one’s “stuff.” Who owns your reputation? If you do, then under the rules of communitive justice (which the state can enforce with total approbation under a classically liberal framework) mean that blackmail should be illegal; a rule against it is just. I do not contend that reputation is part of one’s property for the reason it is not alienable.
However, under certain circumstances, a sovereign may enforce rules beyond just those of communitive justice. Some rules of beneficence may be enforced with universal approbation. For example, a sovereign may enforce a rule requiring parents to care for and raise their children; to not do so is, strictly speaking, not a violation of communitive justice. However, it is for the overall liberty of the society that such a rule is enforced. Strictures against blackmail may (and I would contend do) fall into this category.
David Henderson
Feb 15 2019 at 11:57am
Jon,
You write:
It’s actually not. It’s an attempt to get a payment for NOT harming a person’s reputation.
You write:
There’s an even stronger reason that reputation is not part of one’s property: Reputation has to do with what others think of us and I can’t own what you think of me.
Maximum Liberty
Feb 15 2019 at 4:53pm
David:
Minarchists agree with you. But anarcho-capitalists might not.
Historically, there is a whole thread of remedies (criminal and civil) available to protect reputation under certain circumstances. These remedies are largely about protecting status, not economic interests as such. For example, one of the most historically important types of slander was to ascribe infidelity to a married woman or a lack of chastity to an unmarried woman. This is easily explained in the context of status, but less easily in the context of economic interests. (You can get there, but it’s a long trip, and you see things that are not easy to explain along the way.)
Assume I’m right about that for a moment that defamation, blackmail, and the like have a strong component of status protection built into them. Now assume that we are in an anarcho-capitalist world, where people choose a protection association, and that decides what laws they abide by. The potential of conflict between associations means that there will be a tendency to cluster around commonly acceptable laws, with competitive equilibrium moving over time towards sets of laws that match people’s desired laws. In that scenario, I would absolutely expect that the laws would not match those of a libertarian minarchy. In particular, given the wide historical acceptance in many different cultures of laws that prohibited varying kinds of status-diminishing speech, that blackmail would probably be illegal because allowing a profitable business model of status-diminishing speech would mean much more status-diminishing speech.
Max
David Henderson
Feb 15 2019 at 4:56pm
Interesting. Thanks.
Michael Byrnes
Feb 15 2019 at 7:17pm
Is robbing someone at gunpoint not an attempt to harm, but rather an attempt to get a payment for not harming?
What makes one of these (perhaps) an acceptable commercial trade and the other one not? Why should the threat of physical harm be deemed unaccaptable but the threat of reputational harm be acceptable?
Also, regarding blackmail, is there value creation here or just rent extraction?
David Henderson
Feb 15 2019 at 8:00pm
You write:
Why should the threat of physical harm be deemed unaccaptable but the threat of reputational harm be acceptable?
By asking the question, you’re almost getting to the answer. The first is the initiation of force and the second is the initiation of gossip.
You write:
Also, regarding blackmail, is there value creation here or just rent extraction?
It can be both. Take a look at the Block and Gordon article that I linked to where they deal with this.
Ivo
Feb 16 2019 at 1:30am
The initiation of gossip can be as harmful as the initiation of violence, assuming we still acknowledge the reality of psychological harm. You might reasonably call it a form of torture if someone has to live the rest of their lives with certain information becoming publicly available. But of course that rests on deep assumptions about the limits of free speech. I am e.g. sympathetic to the German ban on Holocaust denial.
There is also a relation to things like stalking. Why is that illegal? The individual behaviors and communications of a stalker are usually all legal. What makes their combination illegal? Does the same argument not apply to blackmail?
mike davis
Feb 15 2019 at 12:09pm
Warning: this is highly speculative. Future blackmail attempts using this comment will not work. I will simply deny that I ever believed this.
Laws preventing blackmail are a remedy for well-known failures in the market for information. When blackmail is legal, the amount of information produced depends on the value of the information to the two counterparties. This would be fine if information were an ordinary good where marginal costs are positive and all interested parties have an opportunity to bid (think about the market for cars). But the MC of spreading information is zero. That means anyone willing to pay some positive amount should be able to bid. But because of high transactions costs, that market doesn’t work well at all.
Suppose I happen to own the last existing copy of Governor X’s yearbook which contains a very embarrassing picture of the Governor. (Assume I acquired the yearbook legally.) Governor X is willing to pay $1 million to keep information about his behavior private. I know this and so I offer to sell the picture for, say, $900 k. The Governor is not happy and accuses me of a being sleazy blackmailer but he agrees. It would seem that this is the kind of mutually beneficial exchange that we should applaud, but it’s not. That’s because there are people out there who would pay something for the picture. Suppose there are 2 million people in the state who dislike the Governor and would be willing to pay at least $1 each to see the picture. The picture has a higher value in the hands of the Governor’s opponents but because the blackmailer cannot effectively trade with 2 million people, the deal doesn’t get done.
Of course, my argument still has a problem. A law against blackmail may prevent information from flowing to low-valued uses but it doesn’t guarantee that information will flow to higher-valued uses.
Mathew Crawford
Feb 15 2019 at 12:15pm
The situation is more complicated than simply “blackmail involves no violation of rights.” There are rights violations going on all the time, some of which result in blackmail that is closer to extortion in terms of individual agency considerations.
For example, when I was a teenager, I told a teacher at school about the violence and drug dealing in my home. Was I helped by this person in the system that purported to have my personal well being at heart? No. Instead, I was blackmailed by an administrator with whom that teacher had a relationship. While I was widely considered the best student in one of the top schools in the nation, I was not accepted to any university to which I applied despite having only a couple of minor disciplinary infractions. Nobody can ever understanding how life changing and traumatic such an experience can be.
The problem with a simple distinction between blackmail and extortion is the level of fraud that permeates our culture. That fraud narrows the gap between the distinction considerably, and that must be at least taken into account.
David Henderson
Feb 15 2019 at 1:01pm
You write:
I’m sorry this happened to you, by the way. What did the administrator ask for? How did you respond?
Hazel Meade
Feb 15 2019 at 1:22pm
That’s terrible. I certainly hope you eventually did get into some university.
I think your story really exposes the complexity of the situation, the blackmailer could be in a position of power, could be able to exact punishments beyond just exposing the information, could be, by virtue of his position, granted more credibility than deserved, could be able to embellish the truth. It’s a very uneven landscape not one where the blackmailer and blackmailed are equals.
wd40
Feb 15 2019 at 12:47pm
The best reason against blackmail is that it encourages the costly economic activity of digging up dirt, and when the blackmail is successful, the blackmailer buries the dirt. This information is of no use to the person being blackmailed as the person already knows that he/she undertook the activity. So a successful blackmail is only a rent-seeking transfer that involves a social cost. In this way it is somewhat akin to armed robbery, your money or your life. The victim would have been bette off if not subjected to the threat in the first place. The best that can be said for blackmail is that it discourages” backmailable” activity.
Hazel Meade
Feb 15 2019 at 1:07pm
I could see a couple arguments for making blackmail illegal:
Many people have aspects of their private lives that are not technically immoral, but are socially frowned upon (i.e. being gay, having wierd fetishes) So the blackmailer may not be exposing wrongdoing, but simply embarrassing private information.
In many cases, blackmailable information is illegally obtained, violating the privacy of the individual being blackmailed. Even though revealing illegally obtained information might expose the blackmailer to prosecution, he could do so anonymously, and/or it might be difficult to prove. The information might also be so damaging that the individual being blackmailed would still be willing to pay even if he could afterwards prosecute.
Blackmailers thus could be incentivized to spy on people, violating privacy laws, in the hopes of digging up embarrassing private information to use as blackmail, which would result in a net reduction in privacy and a basically a lot more nosiness and intrusiveness into people’s private lives. You might end up with a much more conformist, restrictive culture, because people won’t be able to keep secrets and be deviant in private.
Mark Z
Feb 15 2019 at 10:57pm
A couple counter arguments come to mind. Legal blackmail might also incentivize the discovery of genuinely harmful information, such as if a politician or businessman is engaging in embezzlement; or relevant information that isn’t criminal, like discovering one’s spouse is cheating on one, something one would want to know, perhaps leading one to initiate divorce. Violating one’s privacy may be harmful, but so may withholding potentially relevant information.
It’s also possible that if society were inundated with stories of people being gay or having various ferusges, it would desensitize people to the taboos. Incidentally, some gay rights activists actively seek to ‘out’ notable people precisely because they think the more it gets revealed that notable people are gay, the weaker the taboo will become.
Even without the deontological case against the illegality of blackmail, I don’t think it’s clear that legalizing it would even be net harmful.
Viking
Feb 15 2019 at 2:13pm
Should abortions for sale also be a legal form of blackmail?
Pay me $300K today, to avoid $40K/year for 18 years?
https://www.youtube.com/watch?v=5buFzo1Qdvs
Lee Benham
Feb 15 2019 at 2:59pm
Not everyone here may be aware of the Ronald Coase Blackmail paper. He uses blackmail cases involving Indian and English aristocrats to illustrate the flaws in the main arguments against legalization and then provides his perspective on why blackmail should not be legalized. A delightful read.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1003&context=occasional_papers
Michael Byrnes
Feb 15 2019 at 10:16pm
That was awesome! Thanks for posting the link.
David Henderson
Feb 15 2019 at 11:59pm
I read it and liked it. I don’t see it as a slam dunk, though, and my take is that Coase didn’t either. He gets into an interesting discussion and then ends rather abruptly.
David Seltzer
Feb 15 2019 at 7:30pm
If one is caught in flagrante and, henceforth blackmailed, he must consider cost benefit outcomes. There is third party harm to a spouse and the financial penalty in a community property state like California could be billions as in Bezos’s case. The rational thing would be a contract with payment far below the divorce settlement and a well written NDA. In this case, it is a binding agreement between two consenting parties. How would this be illegal? How the information was obtained is peripheral.
Phil H
Feb 16 2019 at 1:58am
The reason why blackmail is illegal, I think, is because if you legalize blackmail, it creates a market in private information.
(Incidentally, the flaw with many arguments by libertarian economists is that they often seem to think that markets spring up out of nowhere. I think they are created and actively tended.)
Mostly, private information has zero economic value, because most of us live dull lives and can’t keep secrets anyway. In the limited case of public figures, there can be some value to the media, so we have laws to stop that starting up. Similar reasons apply, I think, to bans on euthanasia, fencing stolen goods, and prostitution. If you create a market in death/stolen stuff/sex, then you create the need to have contracts in death/stolen stuff/sex, and those are problematic because we all have a close-to-absolute right to live/not have our stuff stolen/refuse to have sex. If you start a market in private information, it will inevitably bump up against the right to privacy, however that is defined. Now, it may be that we can work around this – some countries have euthanasia, and it seems to be OK, some countries have legal prostitution, and it seems to be OK – but simply refusing to countenance any market in private information is a common policy response, and does successfully avoid the question.
I think the distinction that Henderson draws between extortion and blackmail is inaccurate. Publishing someone’s dick pic is a breach of their privacy – so the threat to do so *is* extortion. It’s possible that a news organisation may have a public interest defence, which would make that publication permissible. But that would have to be tested. A priori, publishing private correspondence is not OK. And that is reinforced if the information was obtained by hacking/some other form of information theft.
Mark Z
Feb 16 2019 at 6:03am
You don’t think markets ‘spring up out of nowhere’ (that’s not what any libertarian economists I know of actually believe; they believe they spring up when individuals decide to trade with each other of their own volition), but that seems to be precisely what you’re saying would happen if blackmail were legalized, and that the market needs to be actively suppressed for it to not do so.
“we all have a close-to-absolute right to live/not have our stuff stolen/refuse to have sex.”
At least one, and maybe two of these are non sequiturs. Euthanasia, if voluntary (assisted suicide), does not violate anyone’s right to live; prostitution doesn’t violate anyone’s right to not have sex, any more than someone choosing to have sex for free violates someone’s right not to have sex.
The dispute here is whether there can be – or what the extent of it is – such a thing as a right to privacy. One person’s privacy is necessarily an imposition on another person’s freedom, e.g. one person’s right not to be looked at is another’s obligation to avert their gaze.
I think information obtained via criminal trespassing or breach of contract isn’t so simple, so let’s stick with a more ‘clear cut’ case: someone discovers that another person is having an affair simply by observing them in public. To assert that the observer blackmailing that person is illegal is to assert that you have a right to privacy regarding what you do even in public. At that point, how do you justify not requiring me to ask your permission in order to talk about you with a third party? I don’t think there’s much basis for extending the notion of a privacy violation – at least in a legal context – to include what information people make readily available to the public. You don’t have a right not to be seen from the street through your open windows; what someone sees through your windows from the street is public information, and isn’t analogous to someone sneaking into your house.
Phil H
Feb 16 2019 at 12:16pm
Hi, Mark. Thanks for the reply.
Your first paragraph actually makes a very good point. I need to clarify a bit: I wasn’t actually arguing my own position in my post (I’m not sure I have a position on this issue yet, haven’t thought about it enough). I was suggesting that historically, I think the reason we have laws against blackmail is because the elites who get to make laws don’t want a market in private information to exist. Their way of preventing that from happening has been to outlaw blackmail. It’s not a perfectly targeted solution, but it seems to have been reasonably effective.
There are a couple of other points where I don’t think you’re quite correct. “To assert that the observer blackmailing that person is illegal is to assert that you have a right to privacy.” I don’t think this is true, even though I do believe in a right to privacy. Your claim sounds to me like an implication of the claim ascribed to Brennan and Jaworski: “if you may do it for free, you may do it for money”. I don’t entirely hold with this. It just seems to me that there are a lot of things that we do which are qualitatively changed by involving money. For example, though it is patently true that you can pay someone to have sex with you, it seems at least dubious that you can pay someone to be your friend. Can you pay someone to raise your kids, and still be their parent? You can pay me to sit for hours in front of a computer and translate (it’s my job!), but for most people in the world, you literally couldn’t make that happen with money. And we all know that you can’t involve money in the spreading of information without qualitative changing it. The value of information in a newspaper is different to the value of information in a promotional flyer. You can have integrity as a journalist for free. You can’t have integrity as a journalist for money…
I haven’t yet worked out how these differences cash out in the blackmail case, but I certainly can’t accept up front that if you can X for free, you can X for money, whether it be a moral can or a legal can.
“prostitution doesn’t violate anyone’s right to not have sex” – it raises problems, at the very least. If I contract with a woman to have sex with me, she is now under some obligation (contractual obligation) to do so. But it is, as I said, a commonplace belief these days that consent is required for sex at all times and must be voluntary. Prior consent (at the time of contracting) does not count. It’s not clear to me whether there is a real conflict here, but at least there are some issues to be worked through.
“they believe [markets] spring up when individuals decide to trade with each other” – yeah, you did accurately represent what I meant to say here. And this is precisely what I disagree with. A bunch of individuals trading does not a market make. I think a market needs things like rules and conventions and information conveying mechanisms. Markets need a legal fabric underpinning them. They probably require a currency, which brings in a whole new set of rules and conventions. And they probably require quite sophisticated conceptions of “volition”, which you seem to agree is a necessary ingredient.
Thanks again, you’ve helped me think through a couple of ideas there.
Michael Sandifer
Feb 19 2019 at 4:59am
Would those who would legalize blackmail be okay with closeted gay people being blackmailed, lest they be ordered outed? While it’s certainly legal to out people today, do we really need extra incentives for the sort of lowlifes who would engage in such malice?
Mark Z
Feb 19 2019 at 9:36am
Do you think the primary basis for deciding what should or shouldn’t be legal ought to be what we are or aren’t ‘ok with?’
Colin Fraizer
Feb 19 2019 at 6:28am
Is it wrong to say “all mail matters”?
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