Tuesday, July 24, 2007

The "but I've got nothing to hide" argument

Daniel Solove, at the University of George Washtington School of Law, has written an interesting article on the "But I've got nothing to hide." Here's a link to the download site and the introduction:

SSRN-'I've Got Nothing to Hide' and Other Misunderstandings of Privacy by Daniel Solove


Since the September 11 attacks, the government has been engaging in extensive surveillance and data mining. Regarding surveillance, in December 2005, the New York Times revealed that after September 11, the Bush Administration secretly authorized the National Security Administration (NSA) to engage in warrantless wiretapping of American citizens’ telephone calls.2 As for data mining, which involves analyzing personal data for patterns of suspicious behavior, the government has begun numerous programs. In 2002, the media revealed that the Department of Defense was constructing a data mining project, called “Total Information Awareness” (TIA), under the leadership of Admiral John Poindexter. The vision for TIA was to gather a variety of information about people, including financial, educational, health, and other data. The information would then be analyzed for suspicious behavior patterns. According to Poindexter: “The only way to detect . . . terrorists is to look for patterns of activity that are based on observations from past terrorist attacks as well as estimates about how terrorists will adapt to our measures to avoid detection.”3 When the program came to light, a public outcry erupted, and the U.S. Senate subsequently voted to deny the program funding, ultimately leading to its demise. Nevertheless, many components of TIA continue on in various government agencies, though in a less systematic and more clandestine fashion.4

In May 2006, USA Today broke the story that the NSA had obtained customer records from several major phone companies and was analyzing them to identify potential terrorists.5 The telephone call database is reported to be the “largest database ever assembled in the world.”6 In June 2006, the New York Times reported that the U.S. government had been accessing bank records from the Society for Worldwide Interbank Financial Transactions (SWIFT), which handles financial transactions for thousands of banks around the world.7 Many people responded with outrage at these announcements, but many others did not perceive much of a problem. The reason for their lack of concern, they explained, was because: “I’ve got nothing to hide.”

The argument that no privacy problem exists if a person has nothing to hide is frequently made in connection with many privacy issues. When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private.

Thus, if an individual engages only in legal activity, she has nothing to worry about. When it comes to the government collecting and analyzing personal information, many people contend that a privacy harm exists only if skeletons in the closet are revealed. For example, suppose the government examines one’s telephone records and finds out that a person made calls to her parents, a friend in Canada, a video store, and a pizza delivery shop. “So what?” that person might say. “I’m not embarrassed or humiliated by this information. If anybody asks me, I’ll gladly tell them what stores I shop at. I have nothing to hide.”

The “nothing to hide” argument and its variants are quite prevalent in popular discourse about privacy. Data security expert Bruce Schneier calls it the “most common retort against privacy advocates”8 Legal scholar Geoffrey Stone refers to it as “all-too-common refrain.”9 The “nothing to hide” argument is one of the primary arguments made when balancing privacy against security. In its most compelling form, it is an argument that the privacy interest is generally minimal to trivial, thus making the balance against security concerns a foreordained victory for security. Sometimes the “nothing to hide” argument is posed as a question: “If you have nothing to hide, then what do you have to fear?” Others ask: “If you aren’t doing anything wrong, then what do you have to hide?”

In this essay, I will explore the “nothing to hide” argument and its variants in more depth. Grappling with the “nothing to hide” argument is important, as the argument reflects the sentiments of a wide percentage of the population. In popular discourse, the “nothing to hide” argument’s superficial incantations can readily be refuted. But when the argument is made in its strongest form, it is far more formidable.

In order to respond to the “nothing to hide” argument, it is imperative that we have a theory about what privacy is and why it is valuable. At its core, the “nothing to hide” argument emerges from a conception of privacy and its value. What exactly is “privacy”? How valuable is privacy and how do we assess its value? How do we weigh privacy against countervailing values? These questions have long plagued those seeking to develop a theory of privacy and justifications for its legal protection. This essay begins in Part I by discussing the “nothing to hide” argument. First, I introduce the argument as it often exists in popular discourse and examine frequent ways of responding to the argument. Second, I present the argument in what I believe to be its strongest form. In Part II, I briefly discuss my work thus far on conceptualizing privacy. I explain why existing theories of privacy have been unsatisfactory, have led to confusion, and have impeded the development of effective legal and policy responses to privacy problems. In Part III, I argue that the “nothing to hide” argument—even in its strongest form—stems from certain faulty assumptions about privacy and its value. The problem, in short, is not with finding an answer to the question: “If you’ve got nothing to hide, then what do you have to fear?” The problem is in the very question itself.

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