What privacy isn’t: a few pointers for fighting for your self-respect and your private life

by Eileen | 6:54 am, June 16, 2012 | Comments Off

As I have noted previously on this site and in PPC’s lectures and courses, privacy advocates are at a grave disadvantage these days.

So much proposed, and passed, legislation treats this cherished and fundamental right as a throwaway.  There is a common thread to almost all political denigrations of the right to privacy and to a private life.  Fortunately, for there must always be some silver lining, that same thread can offer much to fighting back.

In short, the Privacy Raping Death Beasts of the world are quite fond of tossing off ‘If you’ve done nothing wrong, then you have nothing to hide.”

To often, privacy advocates and champions of civil liberty attempt to fight on this statement rather then to ferociously challenge its accuracy head-on.

Making this mistake is a recipe for a a lost argument.  As soon as you’ve ceded the moral high ground to you opponent, you’ve lost.  Consenting to something so foolish and dangerous as the view that privacy is necessarily about hiding a wrong can’t possibly lead to winning an argument with the enemies of privacy.

Some of the most eloquent and effective individuals working in favor of privacy today have come up with lovely retorts and meaningful come-backs to this terrible, terrible idea.

The former – throwing some funny and snarky comment in the face of a surveillance-minded politician – may feel good in the moment.  The truth, though, is that someone who tries to argue with you on a fundamental flawed first principle ought to be set right at once.

The first thing those of us who like privacy is to put the lie to the asburd nothing that innocent people, or good people, have no need of privacy.

Privacy is not about concealing bad actions.  It is a fundamental human need that allows every one of us to have an inner life, to form close relationships, and to conduct our intimate lives without driving ourselves to the nut house over fears that some Homeland Security peon is staring at us.

That ought to be your first comeback to anyone who asserts that nice people never have anything to hide.

However, here are a few more points to make when arguing with those damn anti-privacy gits.

1. If the government wants to snoop on my life, the onus ought to be on the state to prove why they need that information.  Mere curiosity, or demanding that even the slightest possibility I am doing something illegal is a devastatingly low threshold.  There is a reason the Founders insisted on probably cause, specificity, and articulatable facts.

2. Just because I’m not ashamed of something doesn’t mean others won’t discriminate against me on the basis of it.  In some cases, such discrimination could mean fewer job options, difficulty in securing insurance, or something along those lines.  But, in other cases, it can mean the people become targets of real violence and prejudice.  The government should never have the power to expose people to a real threat of harm in the name of battling terrorists, of any of the other favored arguments for expanded surveillance powers.

3. Most of the things a given individual wants to keep private are not illegal and certainly are not of legitimate interest to the state.  Allowing the state to know intimate facts about someone’s life, especially in cases where that individual would not even be told he was under surveillance, is a very serious matter.  It should be very hard for the government, at any level, to do this.

4. What the government knows is liable to become painfully public knowledge.  The state has a poor history of protecting the information it knows about citizens.  Too often, the practice is let all employees in a given agency see everything and just hope nothing will leak.  Once we start to think about all the contractors the government has and about all the multinational treaties that mean data in the possession of the US government passes on the numerous other governments, it should become obvious that letting the government follow our online lives, invade our homes, and demand data about us without our consent or knowledge is a recipe for countless strangers knowing our business.

5. Even if you are the sort who has no problem with broadcasting your life, I urge you to think very carefully if giving the state nearly limitless powers of surveillance is quite the same as having no privacy settings on a social networking page or freely discussing your intimate life at cocktail parties.  Even more, I would point out to you that just because you might be a quasi-exhibitionist does not mean the rest of us are, and setting privacy rights by the expectations of the least guarded person in a community is a terrible idea.

6.  When you say you aren’t doing anything illegal, are you sure?  There are more laws and they have more complexity than any human being could ever comprehend.  I kid you not, assuming you an American, you are bound by more laws than you could read if you spent the rest of your life poring over the law book.  You’re even bound by laws you aren’t allowed to see the full texts of.  A lot of those laws also assign rule-making and interpretation to some agency or another, and that agency can change its mind with the wind.  On top of that, have you really thought about what it would mean if the government could have all sorts of information about you and hold onto it forever?  What happens if new laws pass or if you someday become a person of great interest to the state?

7. Losing privacy means losing control.  Once the state has your data, you have no input into how that data is shared, used, and interpreted.  It’s overwhelmingly likely that you won’t ever know what’s going on with information about you.

8. Privacy is about much more than whether or not we have something to hide.  It’s about psychological wellness, about having a private life where only our closest friends and family members are privy, about the ability to say ‘no’ to prying and to have that mean something.  People who live under surveillance states become paranoid victims of self-surveillance and self-censorship.  Rampant privacy violations impoverish intimate life and have real, profound effects on psychological wellness.

9. Meaningful privacy underlies so many other rights.  The First Amendment assumes not only that we can practice our religious and political beliefs, but that it isn’t the states roll to know what those beliefs are.  The Third and Fourth Amendments explicitly hold that the home is sacred, and that there ought to be a very high barrier before the state may cross the threshold in any way.  The Fifth Amendment holds that our own words may not be used against us.  Now imagine living in an America where we enjoy no privacy from the government, an America where we can’t complain about our criticize the state without the state knowing exactly what we say in nearly real time.  Imagine the chilling effect on criticism of the government when no citizen could hold meeting to plan a protest or draft a critical article without the government effectively looking over our shoulder.

10. In term of the government’s ability to legally spy on citizens, what the state can do now effects what they can do tomorrow.  Let me explain.  We live under a regime of laws where whether or not we have a valid complaint, civil or criminal, for privacy violations against us, is predicated in large part on whether or not we may claim a ‘Reasonable Expectation of Privacy.’  Because that Reasonable Expectation is based on court rulings that heavily favor the state and because once the state gets away with a privacy violation once, the courts tend to let them get away with it again, what we have is a circular problem.  The more privacy is eroded, the more the state ca do to us and claim they haven’t crossed the every-eroding Reasonable Expectation threshold.  In such cases, our best weapon is to fight privacy incursions vigorously before the outrageous becomes the commonplace.

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