Trade Secrets and Right to Privacy

Posner claims that

People often want to conceal discreditable or embarrassing facts about themselves—a criminal record, a history of mental illness, eccentricities, and so forth. To what extent should the law assist them in doing so, as by creating a tort right of privacy? [. . .] The Economist assumes that an individual's concealing information about himself is motivated by a desire to induce others to engage in personal or social transactions that are advantageous to him. It is thus analogous to the concealment of material information by a seller of goods and services.

According to this analogy, Posner concludes that the concealment of information, as provided by a right to privacy, amounts to a form of fraud that is generally dangerous to maximal economic activity as measured by wealth production. But what happens when an industry trade secret, such as the horrific conditions of American factory farms, is actually the condition for maximal wealth production in a certain industry? It is hard to believe that Posner would view such trade secrets, including the inhumane and often illegal confinement and slaughtering practices of the beef, poultry and pork industries, because such secrets are necessary to protect the public image of huge sectors of the American economy and thus constitute the rule upon which wealth production depends rather than its exception.

While Posner views invasive measures, such as wiretapping, as harmful to economic activity, it is hard figure out what he would make of the Animal Enterprise Terrorism Act and Animal Enterprise Protection Act, which "make[] into domestic terrorism any actions that physically interfere with the operation of any animal enterprise, or that cause physical or economic damage to the said enterprise" according to The Huffington Post. On the one hand these acts protect industries from physical damage or invasive measures. On the other hand, they make it harder for the public to gain access to information that might significantly alter its buying habits. Moreover, since prosecutions often rely upon legally obtained evidence of unlawful activities, e.g. animal abuse by the meat industry, these acts have the practical effect of shielding industries from prosecution, because many states permit what would otherwise be considered trespassing when animal welfare is at stake.

Check out the case against Jonathan Safran Foer's new book, Eating Animals, and let me know if the meat industry's privacy is the kind of privacy that Posner supports or the kind of privacy that constitutes fraud. Moreover, what do you think about Posner's criterion of wealth maximization for when the law should support rights to privacy? What, if any, factors should trump the standard of wealth maximization in determining the extent of privacy rights and what would be the legal reasoning behind such priorities?