Charity Blackmail?

Monday Tuesday I’ll be taped again for a segment of the John Stossel Show, to air [added: on some coming yet to be determined] Thursday at 10p. This time I’ll be defending blackmail, a subject I’ve discussed here, here, here. In preparation, I’ve just reviewed twenty academic papers on the subject.

Blackmail starts with a situation where A knows something embarrassing about B.  Assume A obtained this info legally, and has the legal freedom to tell or not tell this info to others, based on many noble or ignoble motivations, including rivalry and revenge. A is guilty of illegal blackmail if he requests compensation from B in exchange for A not telling others. Such a deal is legal, however, if B suggests it. (So A should say, “I happen to know this about you. And on a completely unrelated subject, I sure could use a new car.”) For example, recently someone was sent to prison for trying to blackmail David Letterman on his extramarital affairs.

In those twenty papers, roughly a quarter of the authors think blackmail should be legal. Others offered a wide range of arguments for illegality:

  1. Your right to keep quiet is weaker than your right to speak.
  2. It is stupid to pay a blackmailer; stupidity should be illegal.
  3. A blackmailer’s motives, in wanting money, are immoral.
  4. Saying embarrassing things about someone hurts them.
  5. It is especially wrong to gain money by hurting someone.
  6. The blackmailer uses third parties, without their permission, to extract gains.
  7. Blackmail discourages embarrassing activities, but some things just can’t be changed.
  8. Blackmailers may commit crimes to get the info, as may victims to get money.
  9. Rules forbidding or requiring the telling of certain info might be good, but are less “practical” than blackmail laws.
  10. If blackmail is impossible, people will instead gossip, and gossip will result in more folks knowing, and discourage embarrassing activities more.
  11. Government law can optimally discourage an activity via optimal punishment and rates of detection and error. Blackmail is an out of control private law, and will get these things wrong by detecting and punishing too often.

The issue of blackmailer motives could be addressed by only legalizing “charity blackmail”, where the compensation obtained is donated to a charity. (Credit to Rong Rong for the idea.) As probably few would support allowing only charity blackmail, it seems blackmailer motives aren’t the main issue.

Note that gossip is also an out-of-control private law which can discourage activities too much – why allow gossip but disallow blackmail? Note also that those who most dislike the idea of either blackmail or gossip discouraging their embarrassing activities seem to prefer that blackmail be illegal – they don’t believe that gossip alone discourages such activities more. Nor do I.

Posner ’93 offers an elite bias explanation:

It is extremely easy for a legislator, judge, or other public official to visualize himself or herself as a blackmail victim: any public official is a prime target for blackmail, and public officials are influential in the formation of law.

Smilansky ’95 agreees:

Part of the explanation for the perplexing attitude of common-sense morality on this issue is probably cynical, e.g. that the thought of being blackmailed in the ordinary ways is frightening to the rich and powerful in society, who may be less concerned with e.g. the threats of employers or politicians. Hence, that ordinary blackmail be taken so seriously is just what one would expect.

Boyle ’92 says we don’t like money intruding on “private” realms:

“Blackmail seems like the intrusion of market logic into the realm that should be most “private.” … To commodify is itself to violate the private realm. To commodify a violation of privacy, then, is doubly reprehensible. …. Blackmail is illegal because we have a vision of “privateness” that is constructed in part around the control of information as opposed to, say, wealth, healthcare, or housing. … We make a pre theoretical judgment that an activity is “private,” and only then do we “deduce” that it must be kept from the ruthless, instrumental logic of the market.

I made a similar suggestion last October.

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  • Mike Munger discussed the strange ethics of blackmail vs revealing info for no money in this EconTalk podcast on “euvoluntary” exchange.

    • I listened to it, but didn’t see how it made much sense of blackmail. In blackmail both parties can have a similar best-alternative-to-negotiation. Perhaps the blackmailer is just divorced, and the victim would become divorced if news got out. Still folks would oppose blackmail.

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  • Daniel

    I’m a bit surprised nothing like the following shows up on your list of standard arguments for illegality. I don’t think it’s a great argument, but I think it’s better than a number of the ones on your list.

    The activity of seeking out embarrassing information about wealthy people is not particualrly socially productive, akin to rent-seeking, or spending a lot of time and effort looking for tax loopholes.

    If blackmail were legal, people would spend even more time on this relatively wasteful (if not actively harmful) activity. Keeping blackmail illegal is a way of incentivizing people to direct their energy towards more socially productive uses.

  • dirk

    I’m with Daniel. The expression “What happens in Vegas stays in Vegas” would no longer be true in a society with legal blackmail. Professional blackmailers would take pictures of every couple they saw at every bar, stalk private people to gain info and threaten them with it. I suppose some moralists would see that as a good thing, but it sounds like hell to me.

    • Then I am sure some bars and casinos would take extra steps to ensure client privacy. For example, offering private rooms or curtains, banning phones/cameras, blacklisting blackmailers. If some customers really care about privacy, then such services would make sense.

      Again, if you really don’t want people to know something you do, simply don’t do it. You can try and prevent people from taking pictures, but you cannot prevent people from telling what they saw.

  • Mike Lorrey

    Blackmail should be illegal in the interest of protecting the lives of would-be blackmailers against being murdered by those they may blackmail.

  • Daniel, your argument could also be made against gossip; why should we let people waste time talking about what other people are or are not doing?

    dirk, is it hell to live in a society where people are allowed to gossip about other people?

    • Daniel

      There are clearly reasons not to ban gossip that don’t apply in the case of blackmail. For one, while both concepts admit of vague, borderline cases, it seems to me that coming up with a workable legal definition of “gossip” would be much harder than coming up with a workable, legal definition of “blackmail,” which I take it we already have.

      But maybe this doesn’t constitute a sufficiently principled reply for you–maybe your point is that even if we could ban gossip, it wouldn’t be a good idea?

      Honestly, I don’t have a clear enough sense of what banning gossip would amount to to know how to evaluate the counterfactual. I think it’s plausible that banning blackmail has social consequences that are positive on balance, and I can’t think of any way to frame a law banning gossip that might plausibly have positive social consequences on balance–any attempt would chill quite a lot of worthwhile speech, I’d think.

  • Ari T

    Dr. Hanson, there was a document on the Finnish national TV channel about someone being blackmailed for murder (the person had receivables that were not paid). The person, manager of some kind, was threatened with an “accident” if he would be asking for his money, or something, I don’t remember the details exactly. The plotter couldn’t be accused of anything though because he didn’t complete his threat but the plotting was caught on tape (watching it was kind of chilling).

    The fallout was that police was asking for lawmakers to change the law so these kind of people could be prosecuted. The academic law professors (the one who was interviewed was probably in his late 20’s) did not agree with this because according to this principle, too many things would be considered crimes too (plotting to rob a bank for example). The police chief was not amused (I think he thought the professors were naïve).

    In the age of Internet, I think a lot of blackmailing attempts won’t ever be caught anyway so it necessarily won’t matter what the law is. I’ve read Walter Blocks’s defense of the Blackmailer and the arguments were plausible. However I wouldn’t be surprised if a cottage industry of finding information and blackmailing would be formed around this if it were legalized. However I don’t have empirical facts on the case, so I won’t speak more.

    In some sense this is like hacking. Hacking is social destructive activity (mostly) but hackers are hard to be caught. However I’d find it plausible that the mere fact of possible police investigation can keep a lot of hackers at bay than if it were completely legalized. From computer security point of view, law is only a deterrent, not an effective solution.

  • Blackmail is somewhat like mugging in that the blackmailer is benefiting from his role in a power relationship. If I have information that would lead to undesirable consequences for the blackmailed individual and I request money to keep it a secret, I am both threatening harm in order to gain for myself, but I am not relinquishing my ability to do harm. (This is similar to explanation 5, though I don’t think that Robin’s stating included the concept of power explicitly)

    To take it from another angle, one can look at the morality of means of making money (somewhat like 3, but with some additional [important] detail). If one thinks that it is virtuous to earn money by producing something of [positive] value for another individual, group, or society, then in a situation where one is making money, not on a basis of benefit bestowed upon others, but rather by how much harm one can inflict upon someone of significant resources, it’s easy to see where such a transaction would be seen as suspect. Like the mugging, the blackmailer is using power to extract the resources of another. A community can easily decide that it does not want a person who has put effort into extracting a reward from efforts clearly bent on hurting another to keep those rewards.

    Now, the idea of charity blackmail is an interesting one because it removes the element of benefiting from a threat of harm, while allowing the harm to take place. If we had a situation where a blackmailer extracted resources from the blackmailed individual and gave them to another organization in a manner such that no benefit would be received by the blackmailer, I think we’d have a strange situation, since the mechanics of blackmail are such that a blackmailer is willing not to disclose the information if he benefits. If the blackmailer is interested in inflicting harm with the information, he can simply release it, presumably to the benefit of others not involved in the transaction.

    So a blackmailer who diverts the benefits is willing to withhold the information if an unrelated organization benefits, but is not willing to if it doesn’t, the presumption is that the benefit to the unrelated organization actually pleases the blackmailer, thus providing him with a benefit. While he may not have gained in resources, it’s easy to see how people would still be uneasy about condoning such behavior.

  • Ron Fischer

    They way this is described, it sounds similar to a judgement of community service? I believe blackmail is too unstable a power relationship to formalize in this way. Unless the means is a provably singleton artifact, it’s the opening salvo of information war between two parties, real and fabricated. Look at the “political dialog” in our country today. Where there’s no liability, e.g. no stabilizing influence or rules to reach endgame, you wind up with a free-for-all.

  • sk

    I think there are already social pressures against gossip, especially those involving really private and hard to find information about the accused. Thus there is no need to have separate laws against gossip.

  • rapscallion

    I suspect the simple decriminalization of blackmail would have a significantly negative effect on society by most reasonable measures. Yes, it would amount to a tax on socially disapproved behavior, but it would also encourage entrapment activities on the part of would-be blackmailers. Imagine going through life knowing that if you get a little successful there’s a good chance someone’s going to try setting you up on a sting using whatever might be your preferred vice: drugs, sex, gambling, etc. OTOH, maybe libertines would welcome the pressure this might put on social norms, pushing them in a less puritanical direction.

    Formally legalizing blackmail—making blackmail contracts just like other contracts—seems impossible. How exactly are you going to require witnesses and notaries and provide formal legal means of redress in cases of breach of contract while preserving anonymity? What are you going to do about the 2nd and higher order blackmail industries that will monitor known blackmailers and blackmailers of blackmailers…and the court officials who deal with them? That way lies madness.

  • Adelene

    My intuition is that charity blackmail still feels wrong because the blackmailer is still gaining from it – they’re just gaining status with that group rather than money.

    A situation where blackmail is legal iff the money gained goes to some neutral party not of the blackmailer’s choice, for example a particular government program, seems less objectionable than charity blackmail. It still seems not to be a very nice thing to do, but it doesn’t feel like something that should be made illegal at least.

  • Reputation systems for blackmailers could make paying blackmailers less stupid.

  • Rich people are likely to be those who want blackmail to be illegal – since they are more likely to be inconvenienced by it. They have lobbying power, which they can use to help prevent themselves from being caught out. The poor should favour legal blackmail – since it might make them a buck. This probably makes favouring blackmail low-status.

  • Meng, if making money from threatening gossip is bad because gossip is unproductive and socially harmful, why even allow such unproductive gossip?

    Ron and rapscallion, we need to formalize blackmail to make it illegal, but if we left it legal we would not need to formalize it.

    sk, do you think natural gossip produces exactly the right amount of gossip and efforts to find out things about which to gossip, so that any extra tax or encouragement would make things worse?

    Tim, yes on the low-status angle.

    • It’s not the gossip, it’s the threat.

  • Dave

    Blackmailing someone is to threaten to harm them for profit. Most things you could do like this without some really elaborate effort, would be illegal. Blackmail should be illegal because the idea of it pisses people off.

    The only reason for protecting blackmail is if you have some kind of hard line formalist ideas about the right to free speech. This kind of legalism requires jettisoning common sense in favor of pedantry.

  • RJB

    I’m with Daniel. He raises the administrative issue with regulating gossip, which you ignore. This seems to be a pattern…you have written many posts saying “x law is not about stopping x” by pointing out that we don’t have an difficult-to-administer law against something similar. I won’t be convinced until you address those issues directly.

  • Peter Twieg

    Robin –

    I remember mentioning the book “Guarding Life’s Dark Secrets”, whose author (Lawrence Friedman) explains many legal conventions (laws on libel/slander, blackmail, prostitution, bigamy, etc.) as manifestations of “elite bias.” If you’d like to check it out… there’s the citation. 😛

    • roystgnr

      Only one other mention of prostitution in this whole thread? I don’t see anything while skimming the other linked threads’ comments either. That seems like a glaring omission.

      The blackmail paradox is: “Doing A is legal, accepting money is legal, accepting money in exchange for doing A is illegal.” That describes blackmail (as previously distinguished from extortion where A is illegal), prostitution, bribery, and… not much else comes to mind! Those categories may not really be connected on some fundamental level (e.g. bribing a politician is solid evidence that he’s betraying a duty to the electorate, which doesn’t apply to the other two cases), but it’s at least worth talking about.

      In the cases of sex and gossip, it seems like many people consider the act of screwing someone (whether literally or metaphorically) to be inherently a bit icky, but too potentially noble in exceptional circumstances for an outright ban, so we just enforce a ban when there are other evidences of an “impure heart”, like monetary incentives.

      Or maybe I’ve got it exactly backwards. Maybe we value intimate relationships so much that we try to ban the “easy out” of access to sex with no emotional effort? And maybe we value gossip (well, let’s call it whistleblowing now) so much that we try to ban a competing incentive for gossip-mongers (sorry, whistleblowers) to keep quiet?

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  • RJB and Daniel, see my next post which shows that regulating gossip was practiced through most of the history of law. It is our era that is exceptional.

    Peter, thanks for the pointer.

  • rapscallion

    I would be very interested in the results of experiments in decriminalization. My guess is that it would be miserable to live in a world where everyone has an incentive to conduct sting operations on everyone, but who knows.

  • In politics dirty secrets are not used immediately they are discovered but are saved until the time is right. In the British Parliament the government of the day can give junior posts to some MPs, but it needs other methods to keep the awkward squad under control. The government might give a nudge and a wink that fiddling expenses is OK. Later government whips can use the threat of scandal as leverage.

    From this perspective laws against blackmail are not about the elite protecting itself. Instead the issue is power struggles within the elite. Grubby oiks blackmailing lower ranked members of the elite are a problem because they are in competition with the higher members of the elite and their efforts to keep the lower members in line.

    When a black mailer spills a secret, he is wasting a secret that some-one more important was using.

  • sk

    Gossip is public. If you gossip about someone, everyone knows that you just gossipped/revealed someone else’s secrets etc.,
    Blackmail is private/secret. You are not letting anyone know that you are willing to divulge some info about the accused except that person. Making yourself immune to the consequences while trying to get rewarded for that. I think everyone prefers private info to be private. Gossip has costs, blackmail doesn’t, unless there’s laws againt it. I’m not necessarily supporting that, but just saying it seems reasonable.

    • Why try to make the cost structure of blackmail more like that of gossip? What’s the rationale?

      Anyways, the same costs that exist with gossip actually exist with blackmail. The “victim” can simply denounce the blackmailer, which will impact the blackmailer’s reputation. It is similar to using the law to prevent blackmail, you call out the blackmailer and expose his threat/offer to public opinion.

  • rapscallion, if we don’t like a world where people have incentives to align their words and deeds, why allow gossip?

    Alan, you seem to presume governments can better avoid anti-blackmail laws than ordinary folks.

    sk, I don’t follow – both gossip and blackmail have costs and benefits.

    • rapscallion

      It’s a false dilemma to think you have to choose between allowing all mechanisms to enforce word/deed alignment and allowing none of them. If some mechanisms are less costly than others, then some might be allowed and others prohibited. The gains to gossip aren’t so great that it’s worth it for people to try to trick you into cheating, doing drugs, making racist comments, etc. But the gains to blackmail could very well make it worth it and make life much more miserable for many people.

      Again, I’m not pretending to certainty about the net effects when all the goods and bads are weighed against each other; I’m open to experimentation. But I don’t buy that it’s unreasonable to believe that decriminalizing blackmail could be bad while still being OK with gossip.

  • The assumption that revealing information is socially beneficial is questionable. The most obvious counter-example is a spoiler, such as threatening to reveal a surprise birthday party you’ve planned to someone else.

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  • All I hear when I hear people arguing against blackmail is folk that don’t like accountability. The old adage is and always should remain true: “Don’t do the crime if you can’t do the time”. If you don’t want people do know your private business they make sure it remains private or just don’t do stupid stuff. The motives of why somebody would want to expose you are irrelevant. I see blackmail laws as doing nothing but protecting immoral or antisoical behavior and that shouldn’t be condoned.

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