July 09, 2007

posted by Daniel J. Solove

I ran across your "I've got nothing to hide..." article today and wanted to express my appreciation for your analysis. I serve as Privacy Counsel for Cox. While I deal daily with the practical and legal aspects of the subject, I find that its philosophical underpinnings deserve deeper consideration. I believe your comparison of the value given to the individual versus society is a useful measure in weighing "privacy" issues. In my own thought process, I have tried to recast privacy as a measure of individual autonomy, in order to counterthe fact that some consider "privacy" as a code word for specifiy controversies.
Thanks for the insights.

Randy,

Thanks very much for the kind word about the essay. I really appreciate it.

Prof Solove,

I enjoyed the essay and think it is quite persuasive.

I’m curious as to your thoughts about the relationship between the Nothing to Hide argument and the rationale behind the canine sniff cases (i.e., there is no objectively reasonable expectation of privacy in illegal drugs). On the one hand, it seems that by refusing to recognize any privacy invasion for those with something to hide, the rationale of Caballes may be inconsistent with the premise of the Nothing to Hide argument. On the other hand, this rationale might actually reinforce the objectives of the Nothing to Hide argument by downplaying the privacy invasion for those that do have something to hide (thereby shifting the balance to the security side).

Interesting theoretical analysis but it didn't convince me and wouldn't a lot of people.

Most people think in terms of consequences - there is a clear distinction in most people's eyes between the consequence of fairly facile information about them being made available to a select few people who are restricted in how they can use it Vs the consequence of a terrorist plot going unnoticed.

Thanks as well for the great article and discussion!

For myself, I've always felt that privacy is the right to control information. Since, to a high degree of distillation, information is power, this equates to the right of a person to accumulate, protect and wield personal power in the form of knowledge. Privacy is usually considered in the realm of the individual, but groups, institutions and governments also control information for power and have their own kinds of secrets and needs to control access to valuable knowledge.

Even the most trivial pieces of information can effect significant personal power to devastating effect (ask any embarassed tween, outed adulterer or scandalized politician,) it is disingenuous to say that certain kinds of information have no value - value is in the eye of the beholder, certainly, and if the holder deems a secrete valuable then you destroy that value by discovering it. Some people prefer to conceal their sexual orientation, their telephone numbers, or even their own face - and who can deny the mysterious power of the veil?

The problem with power, of course, is its abuse. It is foolish to think that the kings will always be philosophers and the dictators always benevolent...or that the terrorists won't use private cell phones and email to cause harm. It's important to fully understand the damage that can be done by fully malicious use of private information before giving ownership to the institution or individual, and effective oversight and accountability should insure the priviledge of privacy. (Imagine if an unscrupulous president had unfettered access to all electronic communications in the US - Kafka-esque indeed...oh, wait.)

Obviously power (and privacy) should not be inviolable in the individual nor given over exclusively to the government, but a reasonable balance of power should be established that results in the best environment for the pursuit of happiness, etc. This balance of power will ebb and flow as situations, environments and societietla changes effect it...we have definitely seen the pendulum swing about as far as it can in one direction (in a free democracy, anyway,) and are seeing forces attempt a correction.

Thanks for the great critique of the "Nothing to Hide" argument. I want to give two concerns I have about the NSA wiretapping programs.

First, I don't think the surveillance concerns (what you call the "Orwellian" problems) should be diminished. As you note, people may engage in legal activities--the most obvious example of which are political activities--the knowledge of which nevertheless could be used to their disadvantage by the State, especially a corrupt one. For instance, would campaign directors for a Republican presidential candidate mind if the incumbant Democratic administration was tapping their phones and reading their strategy emails? Most certaily, they would.

Second, it is alleged that the NSA programs are SECRET. If true, then it's possible for the program's spotlight to be turned away from the noble pursuit of general security from terrorist threat, to the ignoble purpose of, say, political espionage, WITHOUT ANY OVERSIGHT. I'll expand on this in the next paragraph.

The "Nothing to Hide" argument seems to say that a surveillance program that listens for and reacts to illegal behavior is benign. Suppose, for the sake of argument, I accept that. Nevertheless, the argument doesn't say that a program that listens for and reacts to information about activities that are legal, but which information is potentially useful for the private interests of people in power, is benign. I think most people would agree that such a program would be an abuse of power, it's just that defenders of the current government would say that that's not what the program is. HOWEVER, if the program is SECRET, with no OVERSIGHT, then how do these defenders KNOW that the program isn't being abused?

It's like someone saying, "I've nothing to hide, except for intimate details, such as naked pictures of me. Thank God that's not what the program is doing." The answer is, "If the program is secret, how do you KNOW that's not what the program is doing?

Regards

I read your draft of "I've got nothing to hide."

You seem to value your privacy highly, maybe you have something to hide. :^)

Seriously, though, it was thought provoking, especially the part where you related society's interests to the interests of the individual and asserted that it is in society's interest to permit individuals to have privacy.

Also, I've never seen a taxonomy of privacy concerns expressed that way before - good work.

I personally don't trust what looks like a rubber-stamping process that has replaced the previously completely warrantless wiretapping - I think it is likely to be a long time before we learn what criteria the secret court is using for its decisions.

Regards.
(Partial disclosure: I am not a U.S. citizen.)

As always, Dan, you give us a lot to think about.

But your "taxonomy of privacy" strikes me as a bit of a misnomer. As noted in the essay, it really is more of a taxonomy of privacy problems, or potential threats to privacy, than an actual taxonomy of privacy.

Privacy is not a unitary phenomenon, any more than "aggression" is a unitary phenomenon. One of the earlier taxonomies of aggression included subtypes such as "territorial aggression," "predatory aggression," "pain-elicited aggression," etc. If we were to try to construct a taxonomy of privacy, what would the subtypes be? And would it reflect any biological or psychological factors or imperatives?

I've given you an example over on my blog.

Yes, I realize you're a lawyer, but I think any attempt to define or understand "privacy" must necessarily consider biology and psychology if you want to get a real handle on the impact of surveillance or the impact of accumulated encroachments on privacy.

To all those who have commented thus far, thanks very much. I really appreciate the attention the paper has received and the thoughtful feedback.

I think one of the most important responses to the "Nothing to Hide" argument is that surveillance chills a large amount of legal conduct. For example, you might hesitate to go to a meeting of Socialists if you know this might mean you wind up on a secret government list.

Other more serious examples are not difficult to construct. You might not go to a mosque if Federal agents are taking pictures of everyone who walks in.

Key to the due process argument is that information collected about you, that you have no access to nor ability to correct, may wind up affecting your life in strange ways. You may find you cannot get a job for the government or that you have difficulty boarding an airplane. It may be a simple mistake, but you will have no ability to correct it.

On another subject, one of the big post-9/11 tragedies is the breakdown of the wall between intelligence and law enforcement. Most Americans have secrets from law enforcement. (Are you 100% honest on your taxes? Do you speed? Do you download copyrighted music?) But very few have secrets from national security and intelligence gathering. The sad result of the breakdown of this wall is that you now can't trust the NSA with information you wouldn't give to the FBI.

Thank you Daniel for a very interesting essay! I have three small comments on the "nothing to hide" argument in the privacy debate ...

First, a person claiming to have nothing to hide may very well be hiding and wanting to hide many things. In fact, that very statement---"I have nothing to hide"---is part of how we typically hide things we don't want to let out! Imagine a person with dark secrets stating he or she has things to hide and wants privacy. That kind of behavior would spark suspicion and potentially lead to his or her secrets being revealed.

Second, western society of today requires us to claim we have nothing to hide! Any other statement would either spark suspicion (as mentioned above) or would make others think we are weird and socially misfit. Saying you have nothing to hide is therefore rather an empty statement---it says you're a socially normal person, not much more.

Finally, people in common do have things to hide! With today's statistics on Internet pornography, divorces, depressions, drug use etcetera I doubt it many of us would come clean of public moral scrutiny or would like to crack our facade by publicly showing who we really are.

Best regards, John Wilander (Sweden)

I am a rare blogger however I am deeply concerned about the world I exist in. I have not read the article but in response to the "nothing to hide" argument... People that use this argument are working with the premise that the legal system of formalized laws is infallible... Please remind them that just about 50 years ago, in this infallible legal system, American citizens that had black skin were legally beaten by police for peacefully sitting in restaurants up until the late 1960's. They had nothing to hide, but they were still abused by the armed police in public and the legal system was unopposed to these practices. It is idiotic to believe that the legal system has perfected itself in merely 50 years and until it is perfected, there should not exist limitless surveillance to enforce beliefs that are far from perfect… or even great. Almost on a daily basis I see police break countless trafic laws (the same laws that they ticket and arrest civilians for) Nothing to hide should not even be the first response to the subject, redirect those people to the question of the laws that will be enforced and the imperfect system that would be heavily implemented by corrupted and untrustworthy enforcers.