“We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government,” Supreme Court Justice William Douglass lamented over sixty years ago. Unfortunately, he was right, as former Sun Microsystems chief said in 1999: “You’ve got zero privacy . . . so get over it.” Well, nearly fifteen years later, I can’t get over it.
There are many reasons we’re losing individual privacy in the United States. Many of the reasons have rational explanations. For example, the Supreme Court’s legal standard for privacy is that Americans are only entitled to privacy if they have a reasonable expectation of it. When the government or private parties take away the expectation, then we lose the privacy. In my opinion, this is a self-defeating standard because it inexorably leads to reduced privacy. I don’t like it, but at least I can understand how it’s happening.
However, one of the most perplexing ways we lose privacy is the “I’ve got nothing to hide” argument. The so-called rationale of this argument is that when it comes to a government law or private act that reduces privacy, there’s no privacy lost if a person is hiding nothing illegal or embarrassing. This argument is based on the flawed assumption that privacy is about hiding sensitive information. Not only is this assumption wrong, but it also misses the fact that lost privacy has more ramifications than just the disclosure of personal information.
As an example, let’s take former President George W. Bush’s post-911 decision to allow the National Security Administration (NSA) to conduct—without a warrant—the wiretapping of Americans’ phone calls. Proponents of the nothing-to-hide argument vigorously supported this blatant violation of the Fourth Amendment, claiming “I don’t mind people wanting to find out things about me, I’ve got nothing to hide!” and that the “only people opposed to [warrantless wiretaps] would be the ones aiding al-Qaeda…. If you don’t want the government watching what you’re doing, maybe it’s something you shouldn’t be doing in the first place!”
There are two ways to rebut the nothing-to-hide argument. The easy but superficial way is to confront the person making the argument with a series of questions, like:
- “If you’ve got nothing to hide, why do you have curtains?” or
- “Can I see your credit cards?” or
- “So I can take a photo of you showering and post it on the Internet, right?”
This superficial rebuttal is tempting and easy because everybody has intimate information they don’t wish to share. However, while it is easy, the weakness in this rebuttal is that it accepts the false premise that privacy is about hiding a wrong. Privacy has nothing to do with hiding a wrong—it’s a constitutionally protected right and inherent in the basic human psyche.
The more refined rebuttal to the nothing-to-hide argument focuses not on the disclosure of personal information, but rather on the other serious problems caused by NSA monitoring or other intrusive government snooping. Professor Daniel Solove, an expert on privacy, has identified several ramifications of government monitoring for rebutting the nothing-to-hide argument: chilling effect, aggregation, distortion, proving a negative, exclusion, and secondary use.
Government monitoring of legal conduct creates a chilling effect on First Amendment rights and restrains people exercising legal conduct. Our society already suffers from the chilling effect, from fewer expressions of viewpoint to reduced political activity.
Aggregation refers to the sum of several discrete pieces of information a person may choose to conceal. When these pieces are combined, or aggregated, the government can put it all together to find out what we didn’t want to disclose. Again, when a person chooses not to disclose something, the person is exercising a right to privacy, not nefariously hiding something.
Distortion is related to aggregation in that the government takes discrete pieces of information and puts it together, except with distortion they put it together wrong. For example, if the government observes that you’ve purchased a number of books on manufacturing stills to produce whiskey, it might conclude you want to illegally distill alcohol. But the government doesn’t have all the information and misses the fact that you’ve actually been hired to write a non-fiction book about stills in Kentucky during Prohibition.
Proving a Negative
One of the goals of government monitoring is predicting future behavior. If a person’s disclosed information reveals a particular profile that indicates a likelihood of certain future behavior, it’s difficult for that person to disprove an intent to do something the person hasn’t done yet. Even a person who has nothing to hide can have aggregated information that fits a profile.
Exclusion and Secondary Use
Because the information gathered by government monitoring is often secret, people often have no knowledge of how their information is used. They are excluded from accessing or correcting any errors in the information collected about them. A related problem is the secondary use of information. In other words, information obtained for one purpose is used for another unrelated purpose. Since the government is often silent on secondary use, it’s difficult for people to understand the true impact of their disclosed data.
Americans lose more privacy every year. It’s bad enough that our constitutional standard for privacy inexorably leads to less privacy. But it’s even worse when we give it away with the nothing-to-hide argument.