Is There a Good Response to the “Nothing to Hide” Argument?
posted by Daniel Solove
One of the most common attitudes of those unconcerned about government surveillance or privacy invasions is “I’ve got nothing to hide.” I was talking the issue over one day with a few colleagues in my field, and we all agreed that thus far, those emphasizing the value of privacy had not been able to articulate an answer to the “nothing to hide” argument that would really register with people in the general public. In a thoughtful essay in Wired (cross posted at his blog), Bruce Schneier seeks to develop a response to this argument:
The most common retort against privacy advocates — by those in favor of ID checks, cameras, databases, data mining and other wholesale surveillance measures — is this line: “If you aren’t doing anything wrong, what do you have to hide?”
Some clever answers: “If I’m not doing anything wrong, then you have no cause to watch me.” “Because the government gets to define what’s wrong, and they keep changing the definition.” “Because you might do something wrong with my information.” My problem with quips like these — as right as they are — is that they accept the premise that privacy is about hiding a wrong. It’s not. Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.
As a pragmatist, I’m generally unconvinced by inherent rights talk. But Schneier goes on to discuss a reason for restricting government surveillance that I do agree with — ensuring that government power is appropriately checked, monitored, and limited from potential abuse.
Another argument is that if you look hard enough at someone’s life, in the words of playwright Friedrich Durrenmatt, “a crime can always be found.” With the infinite tangle of criminal laws in this country, Durrenmatt’s line might belong in a work of non-fiction rather than fiction. But this response gets back to Schneier’s objection that we shouldn’t focus on privacy as protection to hide wrongdoing.
One response that I find particularly compelling is that there is a value in not having to explain and justify oneself, something that might become necessary when the government is trolling through personal data. Things that look odd might spark some speculation or negative inferences, and a person might feel the need to explain the context and background. Should people always have to be prepared to justify themselves and explain their behavior? How will one’s data trail appear to government officials judging it at a distance? What’s worse, people might never even get the opportunity to explain.
But still, the person who says “I have nothing to hide” might not be concerned about her data being misinterpreted or in having to justify herself.
Are there other good responses to the “I have nothing to hide” argument? I’m curious if anyone can articulate a compelling response that will have widespread appeal.
May 23, 2006 at 12:06 am
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement)
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Responses (103)
gr - May 23, 2006 at 12:33 am
I’ve heard it posed as “if you do nothing wrong, you have nothing to worry about.” To which I reply: “I don’t care for people to know what I do that is right.”
Its weak. Its not catchy. But the main point is: just because something is right (permissible or even laudable) does not mean it should be transparent.
mrshl - May 23, 2006 at 9:21 am
I can think of a couple. First, such domestic spying tactics are similar to those we disparaged when they were the tools of despotic fascists and communist regimes. It’s not logically airtight, but I know that those persons most likely to use the “nothing to hide” argument would find themselves blunted if they know that’s exactly what Nazi Germany and Soviet Russia told their people: “If you’ve nothing to hide, then there’s no need to fear.”
The second argument is simply that domestic spying deters activity that’s entirely legal. For example, people who call phone sex lines or dubious “singles chat” lines may not make those calls if they know the government is collecting all phone records. More troubling, perhaps, is that people with relatives in the middle east will be discouraged from using their landlines to make legitimate calls to their non-terrorist relatives.
Paul Gowder - May 23, 2006 at 10:16 am
I fear that your appeal to being a pragmatist to excuse being unconvinced by inherent rights talk is more a point against pragmatism than a point against inherent rights talk. When you experience yourself as susceptible to snooping, under the panopticon as it were, don’t you experience it as an indignity? As a loss of control over yourself and your representation in the universe? And isn’t that indignity alone, that loss of control alone, sufficient to condemn the practice?
I’d suggest that your objection to surveilance that people shouldn’t have to be ever-on-alert to justify themselves counts as an inherent rights objection too. Inherently, we have the right not to be subject to being called upon by the state to justify our behavior within the sphere of autonomy that doesn’t violate criminal law.
Relatedly, the Durrenmatt objection can be modified to avoid the concern with concealing crime. The problem isn’t just that a crime can always be found, it’s that suspicious non-criminal behavior can always be found. Go into the details of anyone’s life, and you can find them making a mysterious pattern of (perfectly legal) international calls while checking out (perfectly legal) chemistry ooks from the library, and if they happen to be a member of a (perfectly legal) advocacy group like CAIR at the same time… NO MORE PLANE TICKETS FOR YOU, BUB!
Ralf Bendrath - May 23, 2006 at 10:26 am
A more philosophical argument was developed by Beate Rössler in her book “The Value of Privacy” (Polity Press 2004): No matter if you do something wrong or illegal - just the fact that you feel watched or know you are being watched has an impact on the way you behave. Therefore, it endangers your authenticity and autonomy.
There is also a good text about the functional value of secrets for individualism and social differentiation by one of the founders of modern sociology: Georg Simmel, “The Sociology of Secrecy and of Secret Societies” American Journal of Sociology 11 (1906): 441-498.
A bit tough to read for non-sociologists, but highly recommended!
I would add that a major problem in most of the current surveillance schemes is the built-in asymmetry between the watchers and those being watched. This constitutes a form of hierarchy and potential power that should not be created easily and needs constant checks and balances. It somehow boils down to “who’s watching the watchers”, but more with a focus on power than on potential misuse.
MR - May 23, 2006 at 11:02 am
“But still, the person who says ‘I have nothing to hide’ might not be concerned about her data being misinterpreted or in having to justify herself.”
I think a good response to this is “OK, if those people might not be concerned, then why not just ask them?”
annegb - May 23, 2006 at 11:37 am
Okay, I’m going to skip all the legalese and tell you what normal uneducated people think. I think this is what we think, anyway.
I don’t have anything to hide from the government. I don’t think I had that much hidden from the government in the first place. I don’t think they care if I talk about my onery neighbor.
The goodness of the ordinary average American just makes this outrage nonsensical.
There are things in my life that I would prefer not to publicize, but that’s not the purpose of this eavesdropping.
Ask Madonna or Britney Spears how much privacy they had before 9/11. Privacy, dignity, those things are a state of mind nowadays.
I just don’t see what’s so terribly different.
Joe - May 23, 2006 at 3:00 pm
Annegb,
You sound like an elite to me; I don’t think you really understand the views of the people. Let me tell you what we normal people REALLY think: We don’t want the government mucking around for no reason, but we want them to keep an eye out for the bad guys.
Adam - May 23, 2006 at 4:27 pm
My response is “So do you have curtains?” or “Can I see your credit card bills for the last year?”
MJ - May 23, 2006 at 5:30 pm
I think “If you’re not doing anything wrong, its worth a possible minimal invasion of your privacy to possibly detect or prevent another 9/11″ more accurately reflects a great many folks mindset on this issue.
You can’t talk about how people feel about the potential loss of privacy in any meaningful way without recognizing that most of the people who don’t mind the NSA programs see it as a potential exchange of a small amount of privacy for a potential national security gain.
John Steele - May 23, 2006 at 10:36 pm
If we’re just disucssing rhetoric, it’s very hard to find something snappy to counter that. We have a similar problem in legal ethics, where proponents of more exceptions to the duty of confidentiality say “corrupt clients don’t deserve strict confidentiality and honest ones don’t need it.” I disagree, but my counter arguments are complicated. It’s an uneven playing field, rhetorically speaking.
But on the particular issue of the recently revealed NSA programs, I wonder if the rights-talking crowd is a little behind the times and hence a little over reliant on what strikes many Americans as empty rhetoric.
Some examples. Amazon knows my reading and purchasing habits well enought to make suggestions pitched directly to me. My credit card company knows my behavior well enough to call me when a strange purchase gets made with my card. My spouse, my secretary, and my firm’s accounting department see the phone numbers I call and the numbers that call me. The electronic keycard in my wallet informs the building management when I arrive, where I go in the building, and when I leave the parking garage. My magazine and newspaper subscription information gets sold to political parties and fund raisers who derive clues about my politics from my reading habits. Most lawyers record their daily activites in small increments and input that data to computers for transmission to clients. Every financial institution I transact business with sends data about me annually to the IRS. And on and on and on. Scott McNealy, the visionary founder of Sun Microsystems is famous for saying “We have no privacy. Get over it.” I’d go even further and say that most of the losses of privacy I described in this paragraph come with huge benefits to me.
So, I would be disappointed if the federal government didn’t take a nice baseline study of who is calling whom so the feds can do traffic analysis.
Bob - May 24, 2006 at 7:33 am
Being seen is not the same as being watched. Watching implies a purpose and actions taken for achieving that purpose. When a person says that they have nothing to hide I think that they are saying that they are not adverse to being seen.
When we are watched, often what is seen is memorialized to aid in achieving the watchers purpose. Information that is recorded can be repurposed. The information that is recorded when I go online to buy something most likely was collected to assist the seller with maintaining inventory. Later they found out that they could use the information to make suggestions on products that I might be interested in based on my viewing. Still later some have discovered that they can use the information to adjust prices on goods based on my interest and need. Not all of these uses of information are to my benefit.
Cardinal Richelieu said “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” How long must I be watched to get the equivalent of six lines?
Dissent - May 24, 2006 at 7:48 am
“I would be disappointed if the federal government didn’t take a nice baseline study of who is calling whom so the feds can do traffic analysis.”
They don’t need any “baseline study.” They are buying the commercial databases, which serves the nifty function for them of side-stepping privacy protections. Unfortunately for us, it also means that their info on us may be seriously inaccurate and that important decisions about further surveillance of us or intrusions into our privacy may be based on wrong data.
On one of my professional mail lists (for mental health professionals), we have been having a discussion of why some people feel that the NSA domestic spying and the telecoms’ cooperation with same are significant invasions of privacy while others see it as a minor invasion or not an invasion at all. For me, personal privacy is the default state, it should be up to the individual how much to disclose about themselves, and any governmental intrusions (which I see as a boundaries issue) requires a compelling demonstration of justification and need. So I can choose to reveal information about myself to vendors to obtain benefits, and that’s ok as it’s informed consent if they adhere to their contract or privacy policy, but if I then find out that they have shared that information in breach of the contract, I feel angry and violated. I was one of many people, for example, who terminated my membership in the ACLU after they sold their membership lists.
As some of my colleagues hypothesized, some of the reaction of “it’s no big deal” or “we trust our government” may come from people who were raised to blind adherence to an ideology or religious indoctrination that leads to unquestioning trust in the benevolence and infallibility of leaders. But then, as a recent study finds, there may well be some gender-related issues that come into play here, because I certainly appear to be a lot more intense/militant about these issues than many of my colleagues.
So my response to the “If you have nothing to hide…” argument is simply, “I don’t need to justify my position. You need to justify yours. Come back with a warrant.”
Good blog entry, Daniel. Thank you for always raising some thought-provoking issues.
MJ - May 24, 2006 at 8:24 am
Dissent,
“[S]ome of the reaction of ‘it’s no big deal’ or ‘we trust our government’ may come from people who were raised to blind adherence to an ideology or religious indoctrination that leads to unquestioning trust in the benevolence and infallibility of leaders.”
Its offensive that you have to ascribe a differing view to some fundamental character flaw - the “they’re sheep who just don’t no better” insinuation - in the persons who disagree with you. It’s no different than me saying “Some of the hysteria over this may come from people who were traumatized by an overly-protective mother to the point of being irrationally afraid of the government.”
I’m not blind, unquestioning, or ignorant. I simply think that given the potential national security interest of detecting a would-be terrorist attack, the collection of information about me that I have assumed for years is already floating out in the public ether, is not a particular invasion of my privacy.
Dissent - May 24, 2006 at 9:08 am
MJ: please re-read what I wrote. I did not say that that was my analysis. I prefaced the material that you quoted with, “As some of my colleagues hypothesized,”.
I have never characterized conflicting opinions as “ignorant.” My whole purpose in raising the topic on a professional mail list was to try to get my MHP colleagues to think about the psychological foundations and psychological sequelae of what’s going on. Not surprisingly, despite my attempts to avoid politics and religion, a lot of the respondents stated that they could not really separate the issues totally because of the influence of political ideology and religious doctrine on how many people are reacting to current events.
Peace.
MJ - May 24, 2006 at 11:00 am
OK. I’m a prosecutor and some of my colleagues have hypothesized that some of the reaction of “the sky is falling” or “we live in a totalitarian state” may come from people who were raised to worship the campus radicals of the 1960’s and are blinded by their adherence to an ideology or left-wing indoctrination.
Any less offensive or condescending?
annegb - May 24, 2006 at 11:40 am
Well, I’m not sure what an elite is, but I don’t think I am one. I’m pretty normal Joe American, lower middle class. I don’t understand oh, let’s say 90% of what you guys are talking about, so I think you would be elite, not me.
I don’t have anything to hide that the government would be interested in, if they want to see my credit card bill, who gives a crap. You, why would you want to?
I have three secrets. But I wander the yard in my nightgown and I don’t care if the government listens to me gripe about my daughter in law. You could hear it, too, if you want.
I suppose I’m sort of unique in that my life is an open book, but still, why would the government care to look in my window? They’re looking for specific stuff and if they think I’m that interesting, more power to them. You’re probably not that interesting, either.
There’s a bunch of “french engineers” however, down the street, who come and go, and sometimes they are different “french engineers.” I’m thinking terrorists. I’d down with tapping their phones.
Dissent - May 24, 2006 at 2:24 pm
MJ: your colleagues’ hypotheses are neither offensive nor condescending to me. I trained as a scientist and a hypothesis is simply that to me — a hypothesis — whether it’s generated by my colleagues or by your colleagues. The test of any hypothesis is to see whether the data support it or, better yet, can predict future behavior, keeping in mind that correlation does not imply causation. Unless you wish to argue that our early or prior experiences — religious, political, familial, school, etc. — don’t shape or modulate our beliefs about these issues, then we certainly should be considering those factors if we’re trying to explain why some people view these things as serious privacy invasions while others do not. That said, any one factor may be valuable in explaining some people’s behavior, but even if it is, it may not explain all people’s behavior, so if you’re objecting to the idea that there is only one explanation — e.g., the hypothesis advanced by some of my colleagues — I would tend to agree with you. I see this as a pretty complex question.
Bottom line: if you took offense by my mentioning how others were approaching answering my question about the diversity and strength of various reactions, well, you can take it up with them. To me, it’s an intriguing question, and I don’t have any answers or speculations that would even rise to the level of a hypothesis.
But now you’ve piqued my curiosity: are you seeing any general agreement among prosecutors as to whether prosecutors are more inclined or less inclined to see the warrantless domestic surveillance as a privacy invasion?
MJ - May 24, 2006 at 3:26 pm
Dissent,
No consensus among prosecutors (that I’m aware of) I was merely hypotheticalizing, though I can attest to the fact that I’ve seen hundreds and hundreds of grand jury subpoenas - which do not require probable cause - issued for people’s cell phone/land line records, and, thus, I’d doubt that any prosecutor believes anyone has any reasonable expectation of privacy in them per Smith v. Maryland.
But I still find it implausible to believe that you could never find a proffered hypothesis offensive:
“As some of my colleagues hypothesized, some of the reaction of ‘it’s no big deal’ or ‘we trust our government’ may come from Irish-Americans who were possibly so intoxicated that they aren’t concerned about what their government does”
– is an example that leaps to mind. And, if you don’t think “blind adherence to an ideology or religious indoctrination that leads to unquestioning trust in the benevolence and infallibility of leaders” is a pitiful stereotype of religious persons: you should.
Dissent - May 24, 2006 at 5:56 pm
“As some of my colleagues hypothesized, some of the reaction of ‘it’s no big deal’ or ‘we trust our government’ may come from Irish-Americans who were possibly so intoxicated that they aren’t concerned about what their government does”
I’m not confident that you’ll believe me on this, MJ, but my first reaction when I’m in a “trying to understand this behavior” mode would not be, “That’s offensive.” My first reaction is usually a more neutral, “Is there any support for that hypothesis?” So I didn’t just start ranting when books came out claiming black people have lower IQs. I read the books and evaluated their data to see why they were claiming that and whether their data supported their claims or whether they had ‘massaged’ or misinterpreted the data to support some bias. And I don’t have a hissy fit and start singing “I Am Woman” when people suggest that maybe a woman’s behavior contributed to something that happened to her, even though I know it doesn’t excuse the behavior of an assailant.
So did I find my colleagues’ hypothesis offensive? No. It was just a hypothesis to me. Can I understand why you or others might find it offensive? Certainly, but that wouldn’t stop me from considering it.
And, if you don’t think “blind adherence to an ideology or religious indoctrination that leads to unquestioning trust in the benevolence and infallibility of leaders” is a pitiful stereotype of religious persons: you should.
The hypothesis doesn’t say that all people who are religious are trained in blind adherence, etc. The hypothesis would set up a test that looks to determine if there is a particular subgroup of religious or political people who are more likely to hold a particular view on this issue than those who are not part of that subgroup. I’m not trying to support the hypothesis itself, btw. For me, it was, and remains an untested guess about one factor that might help explain the variability in responses to the situation.
If we changed the language system, I’d bet that you may also do exactly what I’m talking about: in your role as prosecutor, do you immediately dismiss some suggestions because they’re offensive to you (e.g., “This crime was probably committed by a [insert profile]“) or do you consider whether there are any data to support that hypothesis? I could be wrong, and if I am, I’m sure you’ll correct me, but I would have guessed that a good prosecutor has to have the same kind of critically analytic approach that a behavior scientist has — one that emphasizes data and proof and not one that is driven by our emotions or considerations about being PC.
Ian - May 24, 2006 at 7:51 pm
How’s this for pith?
Q: If you don’t have anything to hide, what’s the problem?
A: I don’t have anything to hide. But I don’t have anything I feel like showing you, either.
annegb - May 24, 2006 at 8:09 pm
The question was “is there a good response for the nothing to hide argument?” Which I suppose people like me are saying a lot. Nothing you have said here convinces me that there is.
Put it in plain English, convince me, the voter, that we are being foolish when we dismiss the government’s tapping of our phones.
So far, you lawyer guys are not doing a very good job. You don’t need to convince one another, you need to convince ME.
Paul Gowder - May 24, 2006 at 10:18 pm
anneb: let me offer you this. There are people who have been put on the no-fly list or watch list for no visible reason, who have no idea what they could have possibly done to have themselves put there. Including Senator Kennedy.
How is this relevant, you ask? Well, it’s massive data-mining that permits the government to string together a bunch of irrelevancies and conclude someone is suspicious enough to lose their right to participate on an ordinary basis in the marketplace for certain kinds of travel.
How do you know that a couple of funny-looking but totally innocent international calls won’t land you on some government harassment list, like it did a United States Senator? What legitimate, good faith, authentic basis do you have for your belief that this won’t happen to you? Or do you believe it’ll happen to you and just not care?
annegb - May 24, 2006 at 11:14 pm
Do you think that would wash with ordinary Americans who hardly ever make an international call anyway? Who gives a crap about Kennedy, he deserves all the inconvenience we can visit on him–hell, he’s responsible for the death of one woman, who knows what else he’s done.
How do you know they were totally innocent international calls?
Make a better argument. Because I’m dying to be convinced, to have an opinion on this that relates to me, Joe Citizen, not some Senator nobody likes anyway. You guys are lawyers, this is the best you got?
I could so win in the court of public opinion, with only a high school education–and that matters, guys. That matters. If you don’t make a solid argument to the ordinary American, you lose this battle and I think it’s an important one. Make me give a crap.
Adam - May 25, 2006 at 9:26 am
Anne,
Have you ever had a computer be wrong on you? Ever argued with the IRS? This matters to you because when the NSA’s computers are wrong, you’ll never ever get them to admit there’s a problems, never mind get it fixed.
Try opening a bank account, getting on an airplane, or getting a new job when you’re on the terrorist list.
annegb - May 25, 2006 at 9:46 am
I guess, Adam, what I was hoping for was a more convincing argument from a bunch of lawyers. These things wouldn’t convince me if I were on a jury, especially if the government was throwing 9/11 in my face.
I think you have to make people feel this, to make it real to people. Ted Kennedy sure doesn’t do that for most people.
I actually haven’t argued with the IRS or ever made an international phone call.
Isn’t the issue here the government listening in to phone calls? For most of us, it’s not that big a deal who hears what we talk about over the phone. It’s not about my credit cards or my computer, it’s about phone calls.
Like I said, there are times I’m certainly not at my best, ie gossiping about my neighbor, but I honestly don’t have anything to hide from the law based on the phone calls I make.
You guys need to find a way to stick to the issue and make your point. Maybe you don’t have a point. Maybe you do, but so far, on this blog, nobody has convinced me.
Paul Gowder - May 25, 2006 at 10:12 am
Anne, the most insidious things are things you can’t feel! Tyranny (yes, I’m going to say tyranny) doesn’t present itself as a sudden invasion of soldiers with jackboots breaking in your door to haul you away screaming. Not in 2006. In 2006, tyranny presents itself insidiously, in the gaps between efficiencies, in the architecture (read Larry Lessig’s Code and Other Laws of Cyberspace) of the tools that we use to live our lives. It presents itselves in databases and cameras and pen registers and little nudges, made at the edge of society, to slightly raise the cost of undesired behavior.
ALSO: If you don’t value the robust kind of society where other people can make international phone calls, or criticize the Bush administration without having to fear government harassment — even if you don’t do those things yourself — you are both unethical and unwise. Unethical, because you’d deprive others of their freedoms simply because you don’t wish to use them. Unwise, because those freedoms are themselves exercised in your interests. When the government wiretaps journalists, they prevent you from learning what’s going on in your government, and they prevent you from making informed decisions about your world.
annegb - May 25, 2006 at 1:22 pm
Of course I value ethical societies, Paul, but that’s not the point.
I said I only have a high school education, you’re talking above me, and most Americans. You guys were trying to make an argument against the “I don’t have anything to hide.” Who did you want to convince, each other?
Why bother to make a meaningful argument in terms people can’t understand or accept? Americans aren’t stupid, but neither do we have time to indulge a lot rhetoric. Most of us are trying to survive and have only given this a passing thought. It doesn’t impact my life.
I’m saying, “Make it impact my life.” I’m saying, you are preaching to the choir and what is it 68% + - Americans say, “I have nothing to hide.”
Do you hope to make substantive change by urging the American housewife to read Larry Lessig?
Ignoring those who do not understand your elevated argument gets you nowhere. Comparing our society right now, comfortable as it is in middle America, to Nazi Germany, does not resonate.
I didn’t say no one should make international phone calls. I said the ARGUMENT one of your presented re international phone calls doesn’t make any sense to me.
And I, or the symbolic I, middle America, will be the ones voting. You have got to reach ME.
I have a nasty habit of stumbling onto blogs and getting into arguments without real context. I’m thinking you guys are highly educated lawyers and I read this and I thought, “well, that doesn’t do me any good.” You may be law smart, you may be book smart, but you need to be people smart.
Like Hitler was.
Paul Gowder - May 25, 2006 at 2:00 pm
Anne,
Personally, comments like yours make me want to curse democracy and give “middle America” the back of my hand. Not because of my contempt for “the American housewife,” but because of yours. Why do you insist that “middle America” can’t, or won’t, respond to the kinds of arguments presented here?
Speaking for myself, if I can’t reach people with a moral argument: “this is right, and this is wrong,” I don’t want to reach them. If “middle America” will only listen to oversimplifications, lies and demagogic rhetoric (the sort of things that are used by people who are “people smart, like Hitler was” !!!!!) then maybe we need to worry about the educational system first.
Maybe there isn’t an argument against “I don’t have anything to hide” that is capable of being understood or accepted by “middle Americans.” I don’t believe that, but I’ll grant it for the sake of argument.
If that’s so, then I submit we’re doomed anyway.
Simon - May 25, 2006 at 2:36 pm
Paul,
I think the reason Anne is insisting that “‘middle America’ can’t, or won’t, respond to the kinds of arguments presented here” is because there is no evidence that they are. Democrats have been pushing the two NSA programs since the moment they emerged as evidence of Bush’s malfeasance, and yet there has not been a single poll taken that shows anything even remotely approaching a majority as disapproving. And this is at a time when Bush’s approval numbers are absolutely chronic - about twice as many poll respondents approve of the NSA program as the many who ordered it!
I would think that those of you who are troubled by - or who outright oppose - these programs would be very interested in finding some kind of argument against the program that is going to stick with the kind of voters you need on your side to do something about the program. And yet instead of taking the opportunity here, you’re berating Anne for not agreeing with you, rather than taking the opportunity to find an argument that works.
Do you really see that as a winning strategy? Perhaps I spoke too soon when I said the Republicans were going to lose the House this fall. I’m reminded of What’s the matter with Kansas, wherein the author argues that there is a massive disconnect between the Democratic party and non-coastal America, and yet reaches the most counter-intuitive conclusion imaginable: the problem with Kansas isn’t that the Democratic party is out of touch, it’s that the voters are stupid! It’s not that the Democrats need to change their minds or find better ways of explaining themselves to the voters, it’s that the voters need to get a haircut, stand up straight and pay attention to their philosopher kings. This is exactly what I see you doing with Anne here: you have your point of view (which may even be correct, who knows), but confronted with someone who disagrees, when the arguments you use among people who agree with you fail, you run out of steam. Your party is in the minority, yet you blame the very people you need. Is that a winning strategy?
Meanwhile, in other news:
Is there any serious evidence that the administration has been harassing its critics using information garnered from either of the NSA programs?
Paul Gowder - May 25, 2006 at 2:48 pm
Simon,
But those are the arguments! If the correct arguments against a practice don’t convince people, are we supposed to make up incorrect arguments? Tell lies?
A: “You shouldn’t kill people, because murder is wrong.”
B: “I’m not convinced by moral arguments. Tell me something else.”
A: “You shouldn’t kill people because the all-seeing space aliens will come and beat you up.”
B: “Oh, ok.”
- - -
Re: evidence of harassment, not yet, but the government has a lengthy record of using supposed “security” problems to harass its opponents. Here’s some examples.
During the course of the debate, he shouted that “George Bush is as dumb as a rock,” an unfortunate comment that provoked the Raleigh-Durham Airport security staff to call the local Secret Service bureau, which sent out two agents to interrogate Stuber… Particularly ominous, he says, was a loose-leaf binder held by the Secret Service agents. “It was open, and while they were questioning me, I discreetly looked at it,” he says. “It had a long list of organizations, and I was able to recognize the Green Party, Greenpeace, EarthFirst and Amnesty International.”
That’s not to say that they intend to use the NSA programs to do this. Only that there’s good cause for mistrust.
Simon - May 25, 2006 at 4:10 pm
Paul,
I’m not necessarily saying that you need to make stuff up, but I am suggesting that it may be possible to frame the same arguments in a way that make more sense to people who don’t agree with you, and even when that fails, it is unwise to berate the people who you fail to convince.
Personally, my only concerns about the NSA programs (and keep in mind, unlike Anne, I frequently make international calls - my family is dispersed to several parts of the globe) relate to Congressional oversight; I have no objection to either program as long as Congress is in the loop. But to be fair, the reason the administration gives for refusing to share with Congress is that Congress can’t or won’t break its addiction to leaking information (the correct counterargument is: neither can the executive branch). I don’t know if that’s entirely fair, but I do think there’s some validity in it; to some extent, the program has to be secret to operate, and it won’t be secret if you tell any Democratic Senator with Presidential ambitions, because they will promptly leak it.
Simon - May 25, 2006 at 4:11 pm
Speaking of framing issues more effectively, I trust you’ve read Moral Politics by George Lakoff? My understanding is that it’s very popular in liberal circles presently, and it’s actually a very good read. I didn’t agree with him, but it’s fascinating stuff.
Paul Gowder - May 25, 2006 at 4:34 pm
Simon… a confession: I’m ignorant of the techniques of “framing.” I’ve heard of Lakoff’s work, but I haven’t read any of it yet. Honestly, the notion is kind of sickening to me: I think the Democrats need to strongly articulate a moral position, not engage in social-psychological manipulation.
That being said, how would you “frame” the arguments presented above in a way that would speak more to Anne’s hypothetical people? Seriously, what does it mean? Are there different words to use? Should we say “NSA spying” instead of “NSA snooping?” Is it a matter of putting it in some kind of libertarian vernacular “why can’t the government keep out of our business?” What?
Paul Gowder - May 25, 2006 at 4:40 pm
Oh, and in terms of leaking it: isn’t that, under one view of the world, the job of congressional oversight? It’s a funny kind of congressional oversight that allows the congresspersons to see the outrageous behavior and not cry foul.
Simon - May 25, 2006 at 4:44 pm
I’d send you a copy of Moral Politics, but I’ve lent it to somebody. As I understand it, it isn’t really the same thing as “spin” (which really is social-psychological manipulation), it’s a question of putting an argument into terms that the listener can relate to.
I don’t know how you’d frame this particular issue. Certainly I’d frame it in quasi-libertarian terms of civil liberties, not in terms of paranoia about the Bush administration; you could even paint it in conservative terms: this is big government sticking its nose into your business; if you think background checks for firearms are invasive, how can you support what amounts to background checks for movement? And so on.
Don’t get me wrong, I’m not trying to encourage y’all too much - I do, after all, hope I’m wrong about us losing the House this fall.
annegb - May 25, 2006 at 6:09 pm
Should you try to give me the back of your hand, young man, you would live to regret it dearly. I could so take you.
Paul, why should we believe you just because you say it? The burden of proof is yours. when you go into court, do you get frustrated and give up because the other side won’t come over to your side? No, you should try to make them understand it.
Some things are not necessarily all right or all wrong and why should I take your word for it? Who are you to decide? Make your case. What did you do during law school when people refused to agree with you, smack them, suck your thumb or do your homework?
I’m saying middle America can’t or won’t respond to your arguments because they are not meaningful to us. We do not believe we are on the verge of a Nazi state, show me how we are. SHOW ME. Don’t try to scare me with horror stories, my life isn’t like that. My neighbors’ kids are fighting in Iraq, I am coming from a place that wants to fight terrorism any way I can.
Geez, I can’t believe lawyers are having such a hard time understanding what I’m trying to say. Where’s Gerry Spence when you need him?
“My people” are not hypothetical, these are real Americans whose lives haven’t been inconvenienced by these supposed civil rights abuses that you talk about.
When I first heard this, I felt some alarm, then thought, “oh, well, I’m okay, I’m not breaking the law” and also thought enough people would complain somewhere that the practice would be stopped. Then I read that most Americans thought the same thing I did and I thought, “oh, okay.”
Do you know of cases where (don’t give me Ted Kennedy)law abiding peoples’ lives have been ruined by wiretapping? Make it real to me.
Geez, I should go to law school.
Paul Gowder - May 25, 2006 at 10:12 pm
Simon: But think of how much more interesting it would be with two parties in government!
Anne: I don’t have the names of people whose lives have been ruined by NSA wiretapping. If that’s what it will take to convince you that they’re wrong, then I won’t convince you that they’re wrong. That’s the way it is. They haven’t gotten there yet. I can give you story after story of people who have been randomly stepped on as a result of similar programs (mostly the no-fly list, because that happens to have a really visible effect, namely, not being permitted to get on the plane — and for some of those stories, see the link a couple comments up). After that, you can choose to infer that the government can’t be trusted with the power to keep track of who we’re talking to, or you can choose not to make that inference. It’s up to you.
Reality. The arguments you have are my best arguments. If you don’t agree with them, then we’ll have to agree to disagree. That doesn’t mean I can’t think you’re wrong for disagreeing. It doesn’t mean my arguments aren’t sufficient given X view of the relationship between the government and the people. It means that you hold a different view of that relationship, lets call it Y relationship.
I’m not sure if we can talk through that, though. I’m not sure if we can ever communicate past different conceptions of how the government and the people ought to relate to each other. I believe, as a basic ground-level opinion that informs my entire political perspective, that government observation always carries with it a threat that the government will exercise its immense power on what it observes, and that the government can not be trusted to exercise that power fairly without the sort of checks and balances that are wholly absent in a government program. Someone must watch the watchers. This is an abstract principle. I believe it to be correct on the basis of my experience of the world, and I can justify it with other abstract principles (I can, for example, defend it based on the work of Habermas and Foucault. If you want, I’ll e-mail you a copy of the published paper where I’ve done so. But it won’t convince “middle America,” I promise you.)
You apparently do not agree with that root political view. I don’t know how to span that gulf. I don’t know that it’s possible. The difference between the “observation = power, and power is too easy to misuse” perspective and the “I have nothing to hide, and I trust the government to not abuse the information it has” perspective is just too vast. There’s years of socialization and experience behind each of our views, and each set of views is reinforced by our respective social networks, educational experiences, etc. and is otherwise heavily conditioned.
How do I convince you to stop trusting the government? How does anyone?
How do you convince me to start trusting the government? How does anyone?
Paul Gowder - May 25, 2006 at 10:14 pm
“without the sort of checks and balances that are wholly absent in a government program” above should have been “wholly absent in a secret program.” Sorry.
annegb - May 26, 2006 at 2:01 am
First, I don’t even know the facts of the phone listening problem. I don’t even know what the government is doing. But can’t anybody pretty much access our phone records? They do on CSI, Law & Order, and Without a Trace.
Paul, I don’t trust the government. I don’t necessarily distrust every government employee, but I have seen what the government can do in the lives of its citizens, primarily in the military. I was active for years in an organization that fought for reform, with no real success, in the military investigative process.
We did achieve a great deal of work and information gathering with no professional help, though. We were able to generate significant media attention and get the public on our side, which apparently you haven’t done. Whoever “you” are.
Although, guess what? Public attention cannot move the military, I’m convinced of that.
I wasn’t even trying to convince you to trust the government. I was trying to convince you that your argument wouldn’t convince Joe citizen and I thought you needed to try harder. I would frankly like to see more outrage on this issue. I just don’t feel it. Which may sound contradictory.
I really have little context for going on this site, I don’t know what your root political views are, or even what you guys do, beyond be lawyers.
I hope I’ve woke you up to the realization that your argument needs work. Basically.
I’m sorry I said I could beat you up. I probably could, but still. You’re not the first guy on the blog I’ve put up my dukes to.
Simon - May 26, 2006 at 9:05 am
They also have cool holographic displays on CSI, but I doubt that many of those exist outside of Sun Microsystems’ advanced projects division. These shows are entertainment; they are not designed or (presumably) intended to reflect the realities of the legal system, and still less, the finer points of evidentiary rules.
In any event, phone records can be accessed with a subpoena, but what appears to be at issue in this program, so far as it has been revealed, is the absence of subpoenas. That’s not a problem in the case of the international call monitoring, which is covered by the border search exception (searches at the border or its functional equivalent do not fall within the Fourth Amendment; see U.S. v. Ramsey, 431 U.S. 606), but it is almost certainly a problem (for the Telcos, at least) in the case of the data mining program.
R. P. Ruiz - May 31, 2006 at 2:23 pm
From the better late than never department…
I too have spent a considerable amount of time trying to make this principal laden issue tangible for people who don’t immediately understand, much less agree with, the important role that privacy plays in our lives.
So let’s try this one on for size:
All humans are born into sin, and are capable of incredible atrocities.
As such, you’d be wise not to trust them implicitly.
Governments are made up of humans.
Therefore, they are not to be trusted either.
Guilt by association can ruin your reputation and eventually your life.
This happened to hundreds of innocent, law-abiding American citizens during the McCarthy era witch hunts, with information that was collected manually.
Think of the current NSA eavesdropping and datamining activities as the warmup to another witch hunt, this time on steroids.
Those of you who’re still rolling your eyes over the use of the word “sin” should consider this before you toss this argument out the window: while it may appear archaic (or possibly even contrived) to more sophisticated eyes, many people understand that concept and have a visceral response to it.
Now, run that argument by the guy next door and then ask them if they have any problems with what the NSA’s been up to lately, and I suspect that they’ll respond differently than the polls would suggest.
BJ Horn - June 2, 2006 at 6:58 pm
I’ll admit that I have occasionally used the “I have nothing to hide” comment, but I’ve always attached the important caveat: “so long as the privacy that I’m giving up is balanced by some meaningful benefit”.
I have credit cards because I appreciate the ease of use and flexibility. I occasionally sign up for newsletters (after carefully examining the privacy policy) because I appreciate the information they bring.
I don’t believe that the NSA phone database provides me, or anyone else in America, with a commensurate benefit for the liberties we give up, based on simple statistics:
Let’s say there are 250 million Americans who make an average of 5 phone calls a day. That’s approximately 445 billion phone calls each year. Assuming that the NSA’s “terrorist detection software” has a false positive rate of 0.01%, that still means that 44.5 million phone calls will be incorrectly identified as related to terrorist activity. Those 44.5 million calls could easily correspond to 4 million or more US citizens. By saying “I have nothing to hide”, you are saying that it’s OK for the government to infringe on the rights of potentially millions of your fellow Americans, possibly ruining their lives in the process. To me, the “I have nothing to hide” argument basically equates to “I don’t care what happens, so long as it doesn’t happen to me”. Maybe, if the NSA’s system turns up enough false-positives, it will serve as a much needed wake-up call to the apathetic middle-class.
Let’s assume that there are 10 terrorists operating within the US, plotting 2 attacks per year. In order to detect these ten terrorists, the NSA’s “terrorist detection software” would have to be absurdly effective to stand even a remote chance. By saying “I have nothing to hide”, you are in fact giving up your right to privacy to gain nothing (or very nearly nothing) in return. You might argue that giving up your civil liberties is worth it if it prevents another tragedy like 9/11, but consider that you aren’t just giving up your liberties. You are giving up your neighbors, and your children’s, and your children’s children’s until someone takes a stand. If the NSAs collection of phone records were the only way to prevent even one terrorist attack per year, or even just one 9/11-level attack every decade, it might be worth it, but we currently have way of knowing how effective the program is.
And all of this assumes that the government is 100% trustworthy. Who is to say what the government will do in the future with the powers you have so casually given away? Currently, the TSA’s “Watch List” has little to no oversight, making it impossible for the average citizen to determine the criteria for being selected, and making it difficult to get removed once you’ve been falsely added to the list. Currently, being on the list (but not an actual terrorist) typically only amounts to an inconvenience, but it could easily escalate into something much more serious.
Perhaps Benjamin Franklin put it best when he said: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” In this case, the temporary safety may only be an illusion.
Bob Hail - June 15, 2006 at 5:21 am
I believe, several years ago a wise man from the middle east once said… “Let him without sin cast the first stone”… Give me anyone and I’ll interpret their innermost details in any which way I like. That’s the danger.
Geeb - June 15, 2006 at 6:19 am
UK point of view here.
We’ve signed up to the Human Rights Act, one item of which is the right to privacy. Therefore, the burden of proof lies with those who would seek to reduce my privacy.
In order to prove to me that it’s worth passing a that would reduce my privacy, they would need to prove one of three things:
1) There is no possibility of someone abusing this power,
2) This law will definitely stop one or more 9/11-like atrocities,
or
3) The likelihood of this law stopping such an atrocity outweighs the risk of someone abusing this power.
Obviously 1 & 2 are effectively impossible to demonstrate, so it’s got to be 3. This means that they have to overcome these hurdles:
a) Governments are not immune to becoming institutionally corrupt (e.g. McCarthy era etc).
b) Government workers are ordinary people, with ordinary failings. (e.g. UK council workers convicted of using town-centre security cameras to peek through windows into womens apartments.)
c) Security services can be convinced they’re right, and take irrevocable and harmful actions, and then turn out to be wrong. (e.g. Jean-Charles de Menezes.)
d) Computer monitoring creates a lot of false positives. (e.g. Cat Stevens not allowed to fly.)
e) There are actually very, VERY few terrorists around. This makes the likelihood of finding anything useful against all the noise vanishingly small.
I submit that it’s VASTLY more likely that such laws will hurt the innocent than that they will benefit the fight against terror.
Sadly, BJ’s probably right: “I don’t care what happens, so long as it doesn’t happen to me.”
JW - June 15, 2006 at 7:34 am
To Annegb, consider the following, which may help you to raise some outrage. Your argument seems to be based on the “If it doesn’t directly affect me, I don’t care” principle. Now, suppose that someone was taking long-lens photos of you as you go down the backyard in your dressing gown. You wouldn’t know about this, therefore you don’t care. But, suppose that this photographer is, say, the owner of the local store, and because you don’t wear a gown of a particular color, or because you tie the belt in a certain way, he gives you worse service (okay, the analogy is a bit flawed - you might decide to go to a different store - but stay with it for a few moments). Your perfectly normal choices have affected your lifestyle.
Now, consider that you *know* that someone in your neighbourhood has been taking pictures of people in their backyards, but you don’t know who or where. You don’t know whether you were one of his “models”. You then hear that the photographs have been seized by the police, who refuse to give up the evidence, because they show evidence of breaking an obscure law about public decency (wearing a dressing gown outdoors, for instance), and because of a new administration, this previously ignored law *may* be pursued. Wouldn’t you be concerned?
These situations, and others that my come from the analogy, are why people are concerned, and why some are outraged.
Hope this helps.
JvD - June 15, 2006 at 9:04 am
An old German folk song:
“Die Gedanken sind frei, wer kann sie erraten?
Sie fliehen vorbei, wie nachtliche Schatten;
Kein Mensch kann sie wissen,
Kein Jäger erschiesen
Mit Pulver und Blei…
Die Gedanken sind frei!”
Translated:
“Thoughts are free, who can betray them?
They fly past like evening shadows;
Nobody can know them,
No hunter can shoot them
With powder and lead…
Thoughts are free!”
Luckily technology does not yet exist that can intrude upon our private thoughts. Soon our minds may be the last refuge for truly free expressions of ourselves, and our existence will be all the sadder and less free for it.
Seeing how often it is reported that government agencies and individual employees have messed up in their use of personal information (and often blatantly abused it), should we really be trusting governments to secretly snoop on us and correlate all the information they gather? How often do regimes change in this world, and how safe do we really feel that (relatively) benign regimes of today will not, in our lifetimes, be replaced by far less benign regimes that will use the already eroded state of our civil liberies and expectations of privacy as a springboard for far more intrusive, “1984″-like public monitoring and “remediation”?
Are we really 100% confident that a future regime in the USA or Europe, or anywhere else for that matter, will not outlaw much of what is considered legal today, and take some form of remedial action against those who practiced such acts before new laws were imposed? Will the erosion of our civil liberties and expectation of privacy today not make their job so much easier tomorrow?
How far are we really willing to allow the governments that WE elect to snoop into our private lives and affairs? When will they have gone too far? Worse still, when will it be too late to do anything about it?
Universal surveillance and tyranny lead to one another.
We should fight this one until the last while we still can, because the slope is indeed slippery and the future always uncertain. And the people of today are the guardians of the future.
Simon - June 15, 2006 at 9:32 am
BJ:
Your hypothetical’s interesting, but I kind of stumble over this section here. Assuming that the NSA’s software has a false positive rate of 0.01% doesn’t tell us much about what happens next; it is extremely unlikely that the calls are simply monitored by computer, and anyone identified goes onto the DNF list. Far more likely is that the calls identified as potential positives are forwarded to another system to be re-evaluated, and those that survive that enhanced scrutiny, one imagines, would be forwarded to humint.
JvD - June 15, 2006 at 10:35 am
Simon,
“Far more likely is that the calls identified as potential positives are forwarded to another system to be re-evaluated”
You mean, you HOPE so…
But do you really think that an actual person sits and listens to all the calls identified as positives (whether true or false)? Of course there’s automation in there, and one wonders how much quality control takes place. If one considers the US Government’s record for adhering to its own computer security policies, one must seriously wonder…
Sean Farrell - June 15, 2006 at 11:05 am
First, I doubt that massive surveillance is really effective. In Nazi Germany there still where at least 4 attempted assassinations on Hitler that did not work for misfortune and not of surveillance.
The problem is that everybody dose by mistake or misfortune unwillingly an act that can be interpreted as being illegal and would be if you did it willingly. To state a personal example, I have browsed around for alternative music and video clips. It is a very legal to download music and videos from people who upload there stuff and give it to the public. Now some one hit child pornography in one clip and I downloaded it by mistake. The problem is, surveillance software will only see that I downloaded a illegal material and not that I threw it away in seconds and wrote the site owner about it. For him it is the same, software only sees that he has it there. I did go off the site.
The inherent problem is that, I unwillingly committed an act that can very clearly be seen as illegal and I could end up in jail for a few years. Not forgetting that I could thrash my life. The problem is not what we have to hide, is what the law enforces wants to see.
On the a rather lighter note, I am working am computer games, where cheating in online games is seen as one of the major problems. I have read a very interesting article and I believe in it, that more actions are perceived to bee cheating than they really are. A study has shown this very clearly. In that study students where taking a test and the supervisors where either told that students cheated regularly or that students never cheated. Those that where told that students cheated said far more often that they saw the students cheating than the others. If this is a problem in computer games, how do you think that it will be with real life.
Just posting here could be perceived as anti-government actions. I don’t have a catchy phase, but a catch commercial. Put a naked person taking a shower in front of the camera. After a good while let a voice say from the off, “This could be you, protect your right for privacy.”
Ricky Charlet - June 15, 2006 at 11:07 am
Here is something I read somewhere once…
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Simon - June 15, 2006 at 1:02 pm
JvD - what is it that you think DOES happen? What is the mechanism that does not include human involvement by which the data mining program translates information into action? Computers cannot accomplish real-world results without some sort of interface, and it’s hard to see how that interface can be anything other than wetware.
That very much depends what you post, doesn’t it?
Ricky - that is all well and good, but it turns on the understanding of what constitutes a “light and transient” matter vs. “a long train of abuses and usurpations.” King George raised taxes, imposed tarrifs, attempted to strangle commerce with the Boston Port Act, put soldiers into people’s homes with the Quartering Act, and abolished elections to the legislative organs with the Massachusetts Government Act. George Bush has … what? I must have missed the part where Bush raised taxes and imposed tarifs (rather than cutting them and expanding free trade), shut down the ports, abolished Congress, and stationed a United States Marine in my living room. If you think different, I submit that the speech you think you saw Bush make was actually in Star Wars: Episode III, not on C-SPAN. I really do wonder if liberals think their Bush fixation is healthy for their party and their reputation with America at large.
Paul Gowder - June 15, 2006 at 1:33 pm
(Warning: shamelessly political comment follows. My apologies.)
Lets see, shall we?
(a)
“He has refused his Assent to Laws, the most wholesome and necessary for the public good.”
Bush hasn’t needed to veto things, since his party controls Congress, but he’s used the veto as an axe to secure the legislation he wants, to the detriment of the public good. example.
(incidentally, an appropriate google search also revealed this. What the… ?? Didn’t Clinton v. New York put the line-item veto to rest?)
“He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.”
Medical marijuana? Assisted suicide?
“He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
Ok, he hasn’t done that one yet.
“He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.”
Fair enough, he hasn’t done that one either.
“He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”
Not yet.
“He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”
Not yet. Although he has done more than his share of recess appointments.
“He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the con