Friday, July 20, 2007

Debunking the "nothing to hide" argument for surveillance

With iPhone frenzy in full effect and the spotlight once again on AT&T, the device's exclusive service provider, it bears remembering the circumstances under which the company last faced serious scrutiny--then for its cooperation with unconstitutional government surveillance.

In the wake of revelations that the National Security Agency was conducting warrantless domestic spying on American citizens, proponents of the program echoed a ubiquitous refrain in its defense. It's a soundbyte-ready response we've heard all too often--"why should I worry, I've got nothing to hide."

Despite this nonchalant dismissal of government surveillance, opponents contend that there should be a great deal of concern. They're disturbed by the disregard for encroachments on civil liberties in the name of an often superficial sense of security. It's an undemocratic tendency that's anathema to the Founders' vision.

Daniel Solove, associate professor of law at George Washington University Law School, has argued alongside privacy advocates against abuses of executive power in the name of national security. In his latest essay featured in the San Diego Law Review, Solove deconstructs the simplistic "nothing to hide" argument in favor of surveillance, exposing its premise as based on false assumptions and a narrow meaning of privacy.

According to Solove, those who employ the "nothing to hide" defense devalue privacy by denying that any problem exists. They believe government surveillance does not constitute a threat to privacy "unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private." Solove explains that this flawed notion, along with gaps in legal protections, are rooted in a narrow conceptualization of what constitutes privacy violations--"a web of related problems that are not connected by a common element, but nevertheless bear some resemblances to each other." He seeks to remedy these issues by laying out a taxonomy containing the plurality of concerns that fall under the rubric of "privacy."

One of the "nothing to hide" argument's fundamental flaws "is with its underlying assumption that privacy is about hiding bad things." Solove points out that this limited understanding neglects the problems associated with data collection, particularly the lack of oversight and accountability on secondary use of personal information and aggregation of data to glean more sensitive information. Data is also used to profile people and project future actions, and "having nothing to hide will not always dispel predictions of future activity," nor will it prevent assumptions based on prejudice or stereotypes. Though one may think he or she has no need to fear surveillance, there are unforeseen circumstances in which even the least sensitive forms of information could be used against people.

Moreover, surveillance creates a chilling effect on free speech, harming not just the individual, but society as a whole by "[reducing] the range of viewpoints being expressed and the degree of freedom with which to engage in political activity." Though the chilling effect itself is difficult to measure, investigations by the ACLU and others have revealed how surveillance powers have been manipulated to target dissenters.

Privacy threats may not play well in a public discourse strangled by sensationalism. Similar to the way global warming has been portrayed in the past, the detrimental cost of ignoring challenges is cast as not as visceral or immediate as some seemingly more tangible matters, and there are countless interests who have a stake in preventing the public from reaching a critical mass of political will. But Solove convincingly makes the point that despite difficulties in pinning down the essence of privacy, protecting personal information from government and corporate invasion still has great social value, even if people put down their guard, mistakenly believing they have "no reason to hide."

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