I don’t know how many times this week I have heard the old standby, ”Well who cares if they look at your phone calls? I don’t have anything to hide.” In the next several posts I want to explore some of this. I am drawing liberally (not conservatively!) from Daniel Solove’s wonderful book, "Nothing to Hide: The False Tradeoff between Privacy and Security." You should read the book.
The Nothing to Hide argument is said over and over again, but it is a falsehood. It is a bogey-man, which completely minimizes the privacy interest, and distorts reality. Lets take it to extremes. If you have nothing to hide, then show me your credit card bills from last year? You have nothing to hide? Then great, when can I photograph you naked? (Now this really is an extreme example). But you get the point.
The biggest problem with this argument is that it assumes privacy is about secrecy. About hiding bad things. It isn’t. I don’t think I have ever broken any laws (beyond the traffic code), I certainly haven’t murdered or assaulted anyone. I haven’t stolen money, etc… yet, I am a strong proponent of privacy. Does this mean I must have something to hide? No. I view privacy as a fundamental right to be left alone from unwanted (and unwarranted) governmental interference. As Louis Brandeis stated in Olmstead, privacy is one of the most cherished of rights - the right to be left alone. This is not to say I am free from all government interference in my life. I pay my taxes even though I don’t want to; I follow the criminal laws; I am social and am part of the community.
Yet privacy is not just an individual right - it is a societal value. Solove suggests that “the value of protecting the individual is a social one. Society involves a great deal of friction, and we are constantly clashing with one another. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be oppressive. When protecting individual rights, we as a society decide to hold back in order to receive the benefits of creating free zones for individuals to flourish…” Privacy is not merely championing the individual against society’s interests “but the protection of the individual based on society’s own norms and values. Privacy isn’t simply a way to extricate individuals from social control; it is itself a form of social control that emerges from a society’s norms. It is not an external restraint on society but an internal dimension of society. Therefore, privacy has a social value. When the law protects the individual, it does so not just for the individual’s sake but for the sake of society.” (chapter 1).
I have many expectations of privacy, I don’t think government should be looking at the websites I surf, they should not be reading my emails, they should not be tracking my phone calls. Why? Not because I have something to hide. But because these things are none of their damn business. We have a society based on the rule of law. Government is of the people, by the people, for the people. Its powers come from the Constitution, which place very specific limitations on what it can and can not do. Government is supposed to follow the bill of rights, the Fourth Amendment of which, states the right to be free from unreasonable searches and seizures of your person, houses, papers, and effects, without a warrant based on probable cause. It is based on what we call “individualized suspicion.” If the government wants to search me, they need a warrant - they need probable cause before-hand.
A dragnet of all of all phone calls - and of all internet activity - not based on probable cause; it is just that, a dragnet. Lets throw out as wide of a net as we can, and see what we catch. THE CONSTITUTION DOES NOT PERMIT THIS.
But wait, who cares if you have nothing to hide? Let’s see. For several years I did research on methamphetamine and crime. I interviewed meth users, I followed trends about meth, compared how meth was manufactured in the midwest compared with the southwest. If the government was watching my purchases on Amazon and my web surfing, if they were looking at the files in my Dropbox, they might think — We have a meth cook here. Alert the cops! Yet, the result of such a search would be a distortion of their findings. Personal information reveals a lot, but it can easily be taken out of context - and lead to the wrong conclusions.
Or think about this if you claim you have nothing to hide. Solove calls it the problem of aggregation - what happens when small bits of seemingly innocuous data are tied together. Solove tells us, suppose you buy a book on cancer. ”This purchase isn’t very revealing on its own, for it just indicates an interest in the disease. Suppose you bought a wig. The purchase of a wig, by itself, could be for a number of reasons. But combine these two pieces of information, and now the inference can be made that you have cancer and are undergoing chemotherapy.”
More to come… including WHY the national security excuse does not work.
For further reading: Daniel Solove, Nothing to Hide: The False Tradeoff between Privacy and Security, Yale University Press, paper, 2013.