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Saturday, April 27, 2013

The Value of Privacy

“I’VE GOT NOTHING TO HIDE” AND OTHER MISUNDERSTANDINGS OF PRIVACY

"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” Legal scholar Geoffrey Stone refers to it as “all-too-common refrain.” 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 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?...

Most replies to the “nothing to hide” argument quickly respond with a witty retort. Indeed, on the surface, it seems easy to dismiss the “nothing to hide” argument. Everybody probably has something to hide from somebody. As the author Alexander Solzenitsyn 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 Durrenmatt’s novella Traps, which involves a seemingly innocent man put on trial by a group of retired lawyers for a mock trial game, the man inquires what his crime shall be. “An altogether minor matter,” the prosecutor says, “[a] crime can always be found.” One can usually think of something compelling that even the most open person would want to hide. As one comment 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 photograph - so I can show it to your neighbors?”2 Canadian privacy expert David Flaherty expresses a similar idea when he argues:

There is no sentient 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.

Such responses only attack the “nothing to hide” argument in its most extreme form, which is not particularly strong... In its more compelling variants, the “nothing to hide” argument can be made in a more general manner. Instead of contending that “I’ve got nothing to hide,” the argument can be recast as positing that all law-abiding citizens should have nothing to hide. Only if people desire to conceal unlawful activity should they be concerned, but according to the “nothing to hide” argument, people engaged in illegal conduct have no legitimate claim to maintaining the privacy of such activities...

Therefore, 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.

Cast in this manner, the “nothing to hide” argument is a formidable one. It balances the degree to which an individual’s privacy is compromised by the limited disclosure of certain information against potent national security interests. Under such a balancing scheme, it is quite difficult for privacy to prevail...

Many commentators had been using the metaphor of George Orwell’s Nineteen Eighty-Four to describe the problems created by the collection and use of personal data.48 I contended that the Orwell metaphor, which focuses on the harms of surveillance (such as inhibition and social control) might be apt to describe law enforcement’s monitoring of citizens. But much of the data gathered in computer databases is not particularly sensitive, such as one’s race, birth date, gender, address, or marital status. Many people do not care about concealing the hotels they stay at, the cars they own or rent, or the kind of beverages they drink. People often do not take many steps to keep such information secret. Frequently, though not always, people’s activities would not be inhibited if others knew this information.

I suggested a different metaphor to capture the problems – Franz Kafka’s The Trial, which 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 captured by the Kafka metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition or chilling. Instead, they are problems of information processing—the storage, use, or analysis of data—rather than 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 they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.

I explored the ways that legal and policy solutions were focusing too much on the nexus of problems under the Orwell metaphor – those of surveillance – and were not adequately addressing the Kafka problems – those of information processing. The difficulty, I noted, was that commentators were trying to conceive of the problems caused by databases in terms of surveillance when, in fact, these problems were different. The way that these problems are conceived has a tremendous impact on the legal and policy solutions used to solve them. As John Dewey observed, “a problem well put is half-solved.” “The way in which the problem is conceived,” Dewey explained, “decides what specific suggestions are entertained and which are dismissed; what data are selected and which rejected; it is the criterion for relevancy and irrelevancy of hypotheses and conceptual structures"...

*author presents a taxonomy of privacy to deal with the plurality of privacy issues*

Many theories of privacy view it as an individual right. For example, Thomas Emerson declares that privacy “is based upon premises of individualism, that the society exists to promote the worth and dignity of the individual. . . . The right of privacy . . . is essentially the right not to participate in the collective life—the right to shut out the community.” In the words of one court: “Privacy is inherently personal. The right to privacy recognizes the sovereignty of the individual.”

Traditionally, rights have often been understood as protecting the individual against the incursion of the community, based on respect for the individual’s personhood or autonomy. Many theories of privacy’s value understand privacy in this manner. For example, Charles Fried argues that privacy is one of the “basic rights in persons, rights to which all are entitled equally, by virtue of their status as persons. . . . In this sense, the view is Kantian; it requires recognition of persons as ends, and forbids the overriding of their most fundamental interests for the purpose of maximizing the happiness or welfare of all.”

Many of the interests that conflict with privacy, however, also involve people’s autonomy and dignity. Free speech, for example, is also an individual right which is essential to autonomy. Yet in many cases, it clashes with privacy...

Etzioni is right to critique those who argue that privacy is an individual right that should trump social interests. The problem, however, is that utilitarian balancing between individual rights and the common good rarely favors individual rights—unless the interest advanced on the side of the common good is trivial. Society will generally win when its interests are balanced against those of the individual.

The deeper problem with Etzioni’s view is that in his critique of liberal theories of individual rights as absolutes, he views individual rights as being in tension with society. The same dichotomy between individual and society that pervades liberal theories of individual rights also pervades Etzioni’s communitarianism...

In contrast, John Dewey proposed an alternative theory about the relationship between individual and community. For Dewey, there is no strict dichotomy between individual and society. The individual is shaped by society, and the good of both the individual and society are often interrelated rather than antagonistic: “We cannot think of ourselves save as to some extent social beings. Hence we cannot separate the idea of ourselves and our own good from our idea of others and of their good.” Dewey contended that the value of protecting individual rights emerges from their contribution to society. In other words, individual rights are not trumps, but are protections by society from its intrusiveness. Society makes space for the individual because of the social benefits this space provides. Therefore, Dewey argues, rights should be valued based on “the contribution they make to the welfare of the community.” Otherwise, in any kind of utilitarian calculus, individual rights would not be valuable enough to outweigh most social interests, and it would be impossible to justify individual rights. As such, Dewey argued, we must insist upon a “social basis and social justification” for civil liberties...

The problem with the nothing to hide argument is with its underlying assumption that privacy is about hiding bad things. Agreeing with this assumption concedes far too much ground and leads to an unproductive discussion of information people would likely want or not want to hide. As Bruce Schneier aptly notes, the “nothing to hide” argument stems from a faulty “premise that privacy is about hiding a wrong.”

The deeper problem with the “nothing to hide” argument is that it myopically views privacy as a form of concealment or secrecy. But understanding privacy as a plurality of related problems demonstrates that concealment of bad things is just one among many problems caused by government programs such as the NSA surveillance and data mining...

Many scholars have referred to the information collection as a form of surveillance. “Dataveillance,” a term coined by Roger Clarke, refers to the “systemic use of personal data systems in the investigation or monitoring of the actions or communications of one or more persons.” Christopher Slobogin has referred to the gathering of personal information in business records as “transactional surveillance.” Surveillance can create chilling effects on people’s conduct by chilling free speech, free association, and other First Amendment rights essential for democracy. Even surveillance of legal activities can inhibit people from engaging in them. It might be that particular people may not be chilled by surveillance – indeed, probably most people will not be except those engaging in particularly unpopular speech or associating with disfavored groups. The value of protecting against such chilling is not measured simply in terms of the value to those particular individuals. Chilling effects harm society because, among other things, they reduce the range of viewpoints being expressed and the degree of freedom with which to engage in political activity...

The NSA programs are problematic even if no information 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 exclusion of the protagonist from having any knowledge or participation in the process. The harms consist of those created by bureaucracies – indifference, errors, abuses, frustration, and lack of transparency and accountability. One such harm, for example, which I call “aggregation,” emerges from the combination of small bits of seemingly innocuous data. When combined, the information become much more telling about a person... 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.” 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. The NSA program involves a massive database of information that individuals cannot access. Indeed, it was kept secret for years. This kind of information processing, which forbids people’s knowledge or involvement, resembles in some ways a kind of due process problem. It is a structural problem involving the way people are treated by government institutions. Moreover, it creates a power imbalance between individuals and the government. To what extent should the Executive Branch, and an agency such as the NSA, which is relatively insulated from the political process and public accountability, have a significant power over citizens? This issue is not about whether the information gathered is something people want to hide, but rather about the power and the structure of government...

A related problem involves “secondary use.” Secondary use is the use of data obtained for one purpose for a different unrelated purpose without the person’s consent...

Therefore, the problem with the “nothing to hide” argument is that it focuses on just one or two particular kinds of privacy problems – the disclosure of personal information or surveillance – and not others...

One of the difficulties with the “nothing to hide” argument is that it looks for a visceral kind of injury as opposed to a structural one... [Some] examples aside, there is not a lot of death and gore in privacy law... The purpose of my article was to explain why there is still a harm even though blood is not oozing out of a victim...

At the end of the day, privacy is not a horror movie, and demanding more palpable harms will be difficult in many cases. Yet there is still a harm worth addressing, even if it is not sensationalistic.

In many instances, privacy is threatened not by singular egregious acts but by a slow series of relatively minor acts, which gradually begin to add up. In this way, privacy problems resemble certain environmental harms...

The problem caused by breaches of confidentiality do not merely consist of individual emotional distress; they involve a violation of trust within a relationship. There is a strong social value in ensuring that promises are kept and that trust is maintained in relationships between businesses and their customers... any stated limits become meaningless, and companies have discretion to boundlessly use data. Such a state of affairs can leave nearly all consumers in a powerless position. The harm, then, is less one to particular individuals than it is a structural harm...

The security interest should not get weighed in its totality against the privacy interest. Rather, what should get weighed is the extent of marginal limitation on the effectiveness of a government information gathering or data mining program by imposing judicial oversight and minimization procedures
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