Many people, today most of them either Republican or non-political, argue that since they have nothing to hide, there is no problem with government surveillance of all of their phone calls, e-mails, etc. In the future, however, it may be us making this same bad argument in a few years under a Democratic president.
Daniel Solove, a professor at George Washington University Law School, has written an essay about this argument and why it is flawed. His essay also addresses the question of what exactly we mean by privacy, and what are the problems associated with it. This essay stemmed from a blog post where he asked the question as to counter arguments to this defense.
Make the jump for more.
As a note, the entire essay can be downloaded from various mirrors directly from the site, at the bottom of the page, and is well worth reading.
At first, he details superficial responses to the superficial framing of the argument (I have nothing to hide, so why should I worry?)
I encountered the "nothing to hide" argument so frequently in news interviews, discussions, and the like, that I decided to blog about the issue. I asked the readers of my blog, Concurring Opinions, whether there are good responses to the "nothing to hide" argument.18 I received a torrent of comments to my post:
• My response is "So do you have curtains?" or "Can I see your credit card bills for the last year?"19
• 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."20
• I don’t have anything to hide. But I don’t have anything I feel like showing you, either.21
Other responses are within the document. The superficial framing misses the point that privacy is not simply about hiding wrongdoing. These responses all miss the point that we are not just talking about seeing someone in his underwear, we are talking about systemic government collection and storage of data that we might expect to be private, again not necessarily related to a narrow view of privacy as hiding wrongdoing. But the professor frames the argument in a way that is much more difficult to dismiss with a soundbite:
...in a more compelling form than is often expressed in popular discourse, the "nothing to hide" argument proceeds as follows: The NSA surveillance, data mining, or other government information-gathering programs will result in the disclosure of particular pieces of information to a few government officials, or perhaps only to government computers. This very limited disclosure of the particular information involved is not likely to be threatening to the privacy of law-abiding citizens. Only those who are engaged in illegal activities have a reason to hide this information. Although there may be some cases in which the information might be sensitive or embarrassing to law-abiding citizens, the limited disclosure lessens the threat to privacy. Moreover, the security interest in detecting, investigating, and preventing terrorist attacks is very high and outweighs whatever minimal or moderate privacy interests law-abiding citizens may have in these particular pieces of information.
He then goes on to discuss chilling effects on speech, physical harm (such as a stalker in a government job getting access to a home address, as has happened), and the Kafkaesque machinations of government use of our data, over which we have no control.
There is also mention of other problems with the NSA program:
Moreover, data mining aims to be predictive of behavior. In other words, it purports to prognosticate about our future actions. People who match certain profiles are deemed likely to engage in a similar pattern of behavior. It is quite difficult to refute actions that one has not yet done. Having nothing to hide will not always dispel predictions of future activity.
Another problem in the taxonomy, which is implicated by the NSA program, is the problem I refer to as "exclusion."81 Exclusion is the problem caused when people are prevented from having knowledge about how their information is being used, as well as barred from being able to access and correct errors in that data.
This last aspect is quite compelling, in that everyone can identify with the vague sense that "they" are doing things with our phone lists and travel plans that have no discernible purpose and over which we have no control or knowledge. It helps us to remember that the government is composed of people, not some faceless entity, and that those people are flawed, and will abuse this data. However, the former problem is more insidious, in that it seems to fall into the "Minority Report" category of thought policing.
However, I think that the author misses a couple of practical and compelling counter-arguments that might work well with our friends of the red stripe. For starters, government surveillance is often carried out by contractors. After all, it is the big telecom contractors who are implicated in the latest scandal. So abuse of this data might be used to a competitive advantage in the marketplace. So to those who say, "I'm not doing anything wrong, so I have nothing to hide," the response is simply "Are you doing any business? Do you want your competitors to know all your travel plans, customer phone numbers, and wholesale prices?"
Another potential for abuse comes from those within the government itself. Do you, as a Republican, want a Democratic government to know all of your campaign travel plans, strategies, and lobbyist conversations? In a prior blog, I talked about a specific admission that this sort of behavior happened under Nixon.
What other compelling reasons are there (other than the obvious unconstitutionality of it) to keep the government out of our e-mails?