Why Privacy Matters Even if You Have 'Nothing to Hide'

lodewijk andré de la porte lodewijkadlp at gmail.com
Tue May 17 15:36:34 PDT 2011


I was thinking about how longly stretched this piece is and how little of a
point he's making. Concluded intermittently with "This guy should write
books!". Turned out to be an excerpt. I don't like that about one-topic
books. They need to fill ~200 pages, and they try hard.

His point is horribly shallow and unelaborated. A side effect of how hard it
is to concisely point out why even someone without anything to hide would
like privacy.

Anyone up for a try?

2011/5/17 Eugen Leitl <eugen at leitl.org>

> http://chronicle.com/article/Why-Privacy-Matters-Even-if/127461/
>
> Why Privacy Matters Even if You Have 'Nothing to Hide'
>
> The Chronicle of Higher Education
>
> May 15, 2011
>
> Why Privacy Matters Even if You Have 'Nothing to Hide'
>
> By Daniel J. Solove
>
> When the government gathers or analyzes personal information, many people
> say
> they're not worried. "I've got nothing to hide," they declare. "Only if
> you're doing something wrong should you worry, and then you don't deserve
> to
> keep it private."
>
> The nothing-to-hide argument pervades discussions about privacy. The
> data-security expert Bruce Schneier calls it the "most common retort
> against
> privacy advocates." The legal scholar Geoffrey Stone refers to it as an
> "all-too-common refrain." In its most compelling form, it is an argument
> that
> the privacy interest is generally minimal, thus making the contest with
> security concerns a foreordained victory for security.
>
> The nothing-to-hide argument is everywhere. In Britain, for example, the
> government has installed millions of public-surveillance cameras in cities
> and towns, which are watched by officials via closed-circuit television. In
> a
> campaign slogan for the program, the government declares: "If you've got
> nothing to hide, you've got nothing to fear." Variations of nothing-to-hide
> arguments frequently appear in blogs, letters to the editor, television
> news
> interviews, and other forums. One blogger in the United States, in
> reference
> to profiling people for national-security purposes, declares: "I don't mind
> people wanting to find out things about me, I've got nothing to hide! Which
> is why I support [the government's] efforts to find terrorists by
> monitoring
> our phone calls!"
>
> The argument is not of recent vintage. One of the characters in Henry
> James's
> 1888 novel, The Reverberator, muses: "If these people had done bad things
> they ought to be ashamed of themselves and he couldn't pity them, and if
> they
> hadn't done them there was no need of making such a rumpus about other
> people
> knowing."
>
> I encountered the nothing-to-hide argument so frequently in news
> interviews,
> discussions, and the like that I decided to probe the issue. I asked the
> readers of my blog, Concurring Opinions, whether there are good responses
> to
> the nothing-to-hide argument. I received a torrent of comments:
>
>    My response is "So do you have curtains?" or "Can I see your credit-card
> bills for the last year?"
>
>    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."
>
>    I don't have anything to hide. But I don't have anything I feel like
> showing you, either.
>
>    If you have nothing to hide, then you don't have a life.
>
>    Show me yours and I'll show you mine.
>
>    It's not about having anything to hide, it's about things not being
> anyone else's business.
>
>    Bottom line, Joe Stalin would [have] loved it. Why should anyone have to
> say more?
>
> On the surface, it seems easy to dismiss the nothing-to-hide argument.
> Everybody probably has something to hide from somebody. As Aleksandr
> Solzhenitsyn declared, "Everyone is guilty of something or has something to
> conceal. All one has to do is look hard enough to find what it is."
> Likewise,
> in Friedrich DC<rrenmatt's novella "Traps," which involves a seemingly
> innocent man put on trial by a group of retired lawyers in a mock-trial
> game,
> the man inquires what his crime shall be. "An altogether minor matter,"
> replies the prosecutor. "A crime can always be found."
>
> One can usually think of something that even the most open person would
> want
> to hide. As a commenter to my blog post noted, "If you have nothing to
> hide,
> then that quite literally means you are willing to let me photograph you
> naked? And I get full rights to that photographb so I can show it to your
> neighbors?" The Canadian privacy expert David Flaherty expresses a similar
> idea when he argues: "There is no sentient human being in the Western world
> who has little or no regard for his or her personal privacy; those who
> would
> attempt such claims cannot withstand even a few minutes' questioning about
> intimate aspects of their lives without capitulating to the intrusiveness
> of
> certain subject matters."
>
> But such responses attack the nothing-to-hide argument only in its most
> extreme form, which isn't particularly strong. In a less extreme form, the
> nothing-to-hide argument refers not to all personal information but only to
> the type of data the government is likely to collect. Retorts to the
> nothing-to-hide argument about exposing people's naked bodies or their
> deepest secrets are relevant only if the government is likely to gather
> this
> kind of information. In many instances, hardly anyone will see the
> information, and it won't be disclosed to the public. Thus, some might
> argue,
> the privacy interest is minimal, and the security interest in preventing
> terrorism is much more important. In this less extreme form, the
> nothing-to-hide argument is a formidable one. However, it stems from
> certain
> faulty assumptions about privacy and its value.
>
> To evaluate the nothing-to-hide argument, we should begin by looking at how
> its adherents understand privacy. Nearly every law or policy involving
> privacy depends upon a particular understanding of what privacy is. The way
> problems are conceived has a tremendous impact on the legal and policy
> solutions used to solve them. As the philosopher John Dewey observed, "A
> problem well put is half-solved."
>
> Most attempts to understand privacy do so by attempting to locate its
> essenceb its core characteristics or the common denominator that links
> together the various things we classify under the rubric of "privacy."
> Privacy, however, is too complex a concept to be reduced to a singular
> essence. It is a plurality of different things that do not share any one
> element but nevertheless bear a resemblance to one another. For example,
> privacy can be invaded by the disclosure of your deepest secrets. It might
> also be invaded if you're watched by a peeping Tom, even if no secrets are
> ever revealed. With the disclosure of secrets, the harm is that your
> concealed information is spread to others. With the peeping Tom, the harm
> is
> that you're being watched. You'd probably find that creepy regardless of
> whether the peeper finds out anything sensitive or discloses any
> information
> to others. There are many other forms of invasion of privacy, such as
> blackmail and the improper use of your personal data. Your privacy can also
> be invaded if the government compiles an extensive dossier about you.
>
> Privacy, in other words, involves so many things that it is impossible to
> reduce them all to one simple idea. And we need not do so.
>
> In many cases, privacy issues never get balanced against conflicting
> interests, because courts, legislators, and others fail to recognize that
> privacy is implicated. People don't acknowledge certain problems, because
> those problems don't fit into a particular one-size-fits-all conception of
> privacy. Regardless of whether we call something a "privacy" problem, it
> still remains a problem, and problems shouldn't be ignored. We should pay
> attention to all of the different problems that spark our desire to protect
> privacy.
>
> To describe the problems created by the collection and use of personal
> data,
> many commentators use a metaphor based on George Orwell's Nineteen
> Eighty-Four. Orwell depicted a harrowing totalitarian society ruled by a
> government called Big Brother that watches its citizens obsessively and
> demands strict discipline. The Orwell metaphor, which focuses on the harms
> of
> surveillance (such as inhibition and social control), might be apt to
> describe government monitoring of citizens. But much of the data gathered
> in
> computer databases, such as one's race, birth date, gender, address, or
> marital status, isn't particularly sensitive. Many people don't care about
> concealing the hotels they stay at, the cars they own, or the kind of
> beverages they drink. Frequently, though not always, people wouldn't be
> inhibited or embarrassed if others knew this information.
>
> Another metaphor better captures the problems: Franz Kafka's The Trial.
> Kafka's novel centers around a man who is arrested but not informed why. He
> desperately tries to find out what triggered his arrest and what's in store
> for him. He finds out that a mysterious court system has a dossier on him
> and
> is investigating him, but he's unable to learn much more. The Trial depicts
> a
> bureaucracy with inscrutable purposes that uses people's information to
> make
> important decisions about them, yet denies the people the ability to
> participate in how their information is used.
>
> The problems portrayed by the Kafkaesque metaphor are of a different sort
> than the problems caused by surveillance. They often do not result in
> inhibition. Instead they are problems of information processingb the
> storage,
> use, or analysis of datab rather than of information collection. They
> affect
> the power relationships between people and the institutions of the modern
> state. They not only frustrate the individual by creating a sense of
> helplessness and powerlessness, but also affect social structure by
> altering
> the kind of relationships people have with the institutions that make
> important decisions about their lives.
>
> Legal and policy solutions focus too much on the problems under the
> Orwellian
> metaphorb those of surveillanceb and aren't adequately addressing the
> Kafkaesque problemsb those of information processing. The difficulty is
> that
> commentators are trying to conceive of the problems caused by databases in
> terms of surveillance when, in fact, those problems are different.
>
> Commentators often attempt to refute the nothing-to-hide argument by
> pointing
> to things people want to hide. But the problem with the nothing-to-hide
> argument is the underlying assumption that privacy is about hiding bad
> things. By accepting this assumption, we concede far too much ground and
> invite an unproductive discussion about information that people would very
> likely want to hide. As the computer-security specialist Schneier aptly
> notes, the nothing-to-hide argument stems from a faulty "premise that
> privacy
> is about hiding a wrong." Surveillance, for example, can inhibit such
> lawful
> activities as free speech, free association, and other First Amendment
> rights
> essential for democracy.
>
> The deeper problem with the nothing-to-hide argument is that it myopically
> views privacy as a form of secrecy. In contrast, understanding privacy as a
> plurality of related issues demonstrates that the disclosure of bad things
> is
> just one among many difficulties caused by government security measures. To
> return to my discussion of literary metaphors, the problems are not just
> Orwellian but Kafkaesque. Government information-gathering programs are
> problematic even if no information that people want to hide is uncovered.
> In
> The Trial, the problem is not inhibited behavior but rather a suffocating
> powerlessness and vulnerability created by the court system's use of
> personal
> data and its denial to the protagonist of any knowledge of or participation
> in the process. The harms are bureaucratic onesb indifference, error,
> abuse,
> frustration, and lack of transparency and accountability.
>
> One such harm, for example, which I call aggregation, emerges from the
> fusion
> of small bits of seemingly innocuous data. When combined, the information
> becomes much more telling. By joining pieces of information we might not
> take
> pains to guard, the government can glean information about us that we might
> indeed wish to conceal. For example, suppose you bought a book about
> cancer.
> This purchase isn't very revealing on its own, for it indicates just 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 those two pieces of
> information, and now the inference can be made that you have cancer and are
> undergoing chemotherapy. That might be a fact you wouldn't mind sharing,
> but
> you'd certainly want to have the choice.
>
> Another potential problem with the government's harvest of personal data is
> one I call exclusion. Exclusion occurs when people are prevented from
> having
> knowledge about how information about them is being used, and when they are
> barred from accessing and correcting errors in that data. Many government
> national-security measures involve maintaining a huge database of
> information
> that individuals cannot access. Indeed, because they involve national
> security, the very existence of these programs is often kept secret. This
> kind of information processing, which blocks subjects' knowledge and
> involvement, is a kind of due-process problem. It is a structural problem,
> involving the way people are treated by government institutions and
> creating
> a power imbalance between people and the government. To what extent should
> government officials have such a significant power over citizens? This
> issue
> isn't about what information people want to hide but about the power and
> the
> structure of government.
>
> A related problem involves secondary use. Secondary use is the exploitation
> of data obtained for one purpose for an unrelated purpose without the
> subject's consent. How long will personal data be stored? How will the
> information be used? What could it be used for in the future? The potential
> uses of any piece of personal information are vast. Without limits on or
> accountability for how that information is used, it is hard for people to
> assess the dangers of the data's being in the government's control.
>
> Yet another problem with government gathering and use of personal data is
> distortion. Although personal information can reveal quite a lot about
> people's personalities and activities, it often fails to reflect the whole
> person. It can paint a distorted picture, especially since records are
> reductiveb they often capture information in a standardized format with
> many
> details omitted.
>
> For example, suppose government officials learn that a person has bought a
> number of books on how to manufacture methamphetamine. That information
> makes
> them suspect that he's building a meth lab. What is missing from the
> records
> is the full story: The person is writing a novel about a character who
> makes
> meth. When he bought the books, he didn't consider how suspicious the
> purchase might appear to government officials, and his records didn't
> reveal
> the reason for the purchases. Should he have to worry about government
> scrutiny of all his purchases and actions? Should he have to be concerned
> that he'll wind up on a suspicious-persons list? Even if he isn't doing
> anything wrong, he may want to keep his records away from government
> officials who might make faulty inferences from them. He might not want to
> have to worry about how everything he does will be perceived by officials
> nervously monitoring for criminal activity. He might not want to have a
> computer flag him as suspicious because he has an unusual pattern of
> behavior.
>
> The nothing-to-hide argument focuses on just one or two particular kinds of
> privacy problemsb the disclosure of personal information or surveillanceb
> while
> ignoring the others. It assumes a particular view about what privacy
> entails,
> to the exclusion of other perspectives.
>
> It is important to distinguish here between two ways of justifying a
> national-security program that demands access to personal information. The
> first way is not to recognize a problem. This is how the nothing-to-hide
> argument worksb it denies even the existence of a problem. The second is to
> acknowledge the problems but contend that the benefits of the program
> outweigh the privacy sacrifice. The first justification influences the
> second, because the low value given to privacy is based upon a narrow view
> of
> the problem. And the key misunderstanding is that the nothing-to-hide
> argument views privacy in this troublingly particular, partial way.
>
> Investigating the nothing-to-hide argument a little more deeply, we find
> that
> it looks for a singular and visceral kind of injury. Ironically, this
> underlying conception of injury is sometimes shared by those advocating for
> greater privacy protections. For example, the University of South Carolina
> law professor Ann Bartow argues that in order to have a real resonance,
> privacy problems must "negatively impact the lives of living, breathing
> human
> beings beyond simply provoking feelings of unease." She says that privacy
> needs more "dead bodies," and that privacy's "lack of blood and death, or
> at
> least of broken bones and buckets of money, distances privacy harms from
> other [types of harm]."
>
> Bartow's objection is actually consistent with the nothing-to-hide
> argument.
> Those advancing the nothing-to-hide argument have in mind a particular kind
> of appalling privacy harm, one in which privacy is violated only when
> something deeply embarrassing or discrediting is revealed. Like Bartow,
> proponents of the nothing-to-hide argument demand a dead-bodies type of
> harm.
>
> Bartow is certainly right that people respond much more strongly to blood
> and
> death than to more-abstract concerns. But if this is the standard to
> recognize a problem, then few privacy problems will be recognized. Privacy
> is
> not a horror movie, most privacy problems don't result in dead bodies, and
> demanding evidence of palpable harms will be difficult in many cases.
>
> Privacy is often threatened not by a single egregious act but by the slow
> accretion of a series of relatively minor acts. In this respect, privacy
> problems resemble certain environmental harms, which occur over time
> through
> a series of small acts by different actors. Although society is more likely
> to respond to a major oil spill, gradual pollution by a multitude of actors
> often creates worse problems.
>
> Privacy is rarely lost in one fell swoop. It is usually eroded over time,
> little bits dissolving almost imperceptibly until we finally begin to
> notice
> how much is gone. When the government starts monitoring the phone numbers
> people call, many may shrug their shoulders and say, "Ah, it's just
> numbers,
> that's all." Then the government might start monitoring some phone calls.
> "It's just a few phone calls, nothing more." The government might install
> more video cameras in public places. "So what? Some more cameras watching
> in
> a few more places. No big deal." The increase in cameras might lead to a
> more
> elaborate network of video surveillance. Satellite surveillance might be
> added to help track people's movements. The government might start
> analyzing
> people's bank recB-ords. "It's just my deposits and some of the bills I
> payb no
> problem." The government may then start combing through credit-card
> records,
> then expand to Internet-service providers' records, health records,
> employment records, and more. Each step may seem incremental, but after a
> while, the government will be watching and knowing everything about us.
>
> "My life's an open book," people might say. "I've got nothing to hide." But
> now the government has large dossiers of everyone's activities, interests,
> reading habits, finances, and health. What if the government leaks the
> information to the public? What if the government mistakenly determines
> that
> based on your pattern of activities, you're likely to engage in a criminal
> act? What if it denies you the right to fly? What if the government thinks
> your financial transactions look oddb even if you've done nothing wrongb
> and
> freezes your accounts? What if the government doesn't protect your
> information with adequate security, and an identity thief obtains it and
> uses
> it to defraud you? Even if you have nothing to hide, the government can
> cause
> you a lot of harm.
>
> "But the government doesn't want to hurt me," some might argue. In many
> cases, that's true, but the government can also harm people inadvertently,
> due to errors or carelessness.
>
> When the nothing-to-hide argument is unpacked, and its underlying
> assumptions
> examined and challenged, we can see how it shifts the debate to its terms,
> then draws power from its unfair advantage. The nothing-to-hide argument
> speaks to some problems but not to others. It represents a singular and
> narrow way of conceiving of privacy, and it wins by excluding consideration
> of the other problems often raised with government security measures. When
> engaged directly, the nothing-to-hide argument can ensnare, for it forces
> the
> debate to focus on its narrow understanding of privacy. But when confronted
> with the plurality of privacy problems implicated by government data
> collection and use beyond surveillance and disclosure, the nothing-to-hide
> argument, in the end, has nothing to say.
>
> Daniel J. Solove is a professor of law at George Washington University.
> This
> essay is an excerpt from his new book, Nothing to Hide: The False Tradeoff
> Between Privacy and Security, published this month by Yale University
> Press.





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