Privacy and the "Nothing To Hide" Argument

privacyprof writes "One of the most common responses of those unconcerned about government surveillance or privacy invasions is 'I've got nothing to hide.' According to the 'nothing to hide' argument, 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. The 'nothing to hide' argument is quite prevalent. Is there a way to respond to this argument that would really register with people in the general public? In a short essay, 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy, Professor Daniel Solove takes on the 'nothing to hide' argument and exposes its faulty underpinnings." At the base of the fallacy, as Bruce Schneier has noted, is the "faulty premise that privacy is about hiding a wrong."

Comments

Wired: The Eternal Value of Privacy

[thesolo]

Wired has already answered this question extremely well.

A few examples (first three are a bit tongue-in-cheek):

• If I'm not doing anything wrong, then you have no cause to watch me.
• Because the government gets to define what's wrong, and they keep changing the definition.
• Because you might do something wrong with my information.
• Who watches the watchers?
• Absolute power corrupts absolutely.

Or, perhaps a bit more plainly, "Privacy protects us from abuses by those in power, even if we're doing nothing wrong at the time of surveillance.".

Re:Wired: The Eternal Value of Privacy

[Normal Dan]

Because the government gets to define what's wrong, and they keep changing the definition. I think this is a very good argument. You might not have something to hide now, but in the future you might. The government changes and one day you might not like the change. By then it may be too late. Suppose they raise taxes to 90%. What can you do? Protest? Suppose they declare protesting to be a terrorist act? You might argue they cannot do that due to the constitution, but terrorists are not protected by the constitution. Etc.

Re:Wired: The Eternal Value of Privacy

[Blue Stone]

The one I like: "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged." - Cardinal Richelieu

Re:Wired: The Eternal Value of Privacy

[Anonymous Cowpat]

Also, if they spot you doing something today which is not illegal and then make it illegal. They can't (in theory) prosecute you for it, but they could, say;

• arrest you because you have a history of doing it and they can now probably pin it on you
• get some big men in dark suits to accost you in the street and remind you that what you did on the 22nd March last year is now illegal
• Flag you for extra surveillance involving 24 hour watching on CCTV and a camera strategically positioned in your bathroom
• Put around the story that you did it before it was illegal and sociopathic perverts like you can't help themselves from doing it again now that it is illegal

Now, if you'll excuse me, I have to catch up on Big Brother

Re:Wired: The Eternal Value of Privacy

[nine-times]

Though it's true that there are good reasons for privacy even if you have nothing to hide, I also wonder if we might want privacy even for those who have something to hide.

I mean, often the whole thing gets framed around issues like terrorism or murder or child porn, and in those cases it's easy to let your emotions carry you away and think that perhaps the ends justify the means. Obviously, we want those crimes to be exposed and the perpetrator to be caught. On the other hand, we've all done something wrong at some point. We all have skeletons in our closets. Maybe there are some young people reading this who think, "I don't have any secrets!" Well wait. Sooner or later, something will happen in your life that you'll end up being ashamed of, you'll commit some act that saddens you to think about, or you'll do something that you just don't want people to know about.

These things might not be crimes. They might be that you have some dirty little fetish, that you cheated on your spouse, or that you screwed-over one of your friends when he/she really needed you. It might just be that you've been a bit greedy or harsh to people who didn't deserve it. Or it might even be that you were in a difficult situation, didn't do anything wrong, but the facts taken out of context could be twisted to make you look bad.

There are plenty of things that are legal that can ruin reputations, destroy relationships, embarrass people publicly, and generally ruin lives. Often, there's no positive purpose in bringing these things to light.

People sometimes fail to realize that civilization runs on forgiveness, forgetfulness, and ignorance. If everyone's skeletons were suddenly dragged into the light, it'd be very difficult to maintain work relationships and personal relationships. If everyone were suddenly punished for everything they'd done wrong, no one would escape a whipping. The way our system works is that a crime must be noticeable, someone must be hurt, and the police and prosecutors need to believe that punishing the offense is worthy of time, effort, money, and perhaps other risks. It's for the best. A perfect judicial system which punished all offenders fully would catch everyone at some point. We'd all be offenders, criminals, and subject to public ridicule at various points in our lives.

In the end, such a system would be harmful and oppressive to our society, while the whole point of the judicial system is to help our society maintain stability by reducing the need for vigilante justice/vengence. I'm afraid that, as strange as it may seem, it's better that some of the guilty are not found or prosecuted, and that some crimes go pretty well unnoticed. There's a reason why courts find people "not guilty" of a particular crime, rather than "innocent" in general. It's far better that many of our bad decisions, indiscretions, and unfortunate situations can be stowed away from prying eyes. We ought to maintain an attitude of faith in men, that all men should be treated as innocent until proven otherwise, in spite of the fact that no one is truly innocent.

Re:Wired: The Eternal Value of Privacy

[TheCarp]

Ahem. This all makes it sound very rhetorical or academic.

"Oh, if we give them power, they might be corrupt"... you sound paranoid, you sound like you might be hiding something. Try this...

This is not about what they "might do", its about what they HAVE DONE.

It is well known fact that before the requirement that warrants be issued and that there was review of wiretaps, that the FBI wiretapped none other than the Reverend Doctor Martin Luther King Jr. Are we to believe that the good reverend, one of the heroic leaders of the civil rights movement was a dangerous criminal and needed to be watched?

Forget the theoretical, we need not look far to find real tangible cases of abuse of power. It is not the ability of power to be abused, it is the fact that it has been abused. The watchers have already been proven untrustworthy. There is more than ample real indisputable evidence.

Sure we can understand why a person in power in the 60s would have felt the need to watch the good reverend doctor. However, doesn't that make all the more certain the case that it is folly to allow their whims to direct such powers without real oversight?

-Steve

Re:Wired: The Eternal Value of Privacy

[StikyPad]

Except that's ridiculous. He doesn't even define line length, so we'll assume length is unimportant:

01 The number 1
02 The number 2
03 The number 3
04 The number 4
05 I eat babies
06 The number 6

Oh shit..

Re:Wired: The Eternal Value of Privacy

[fyngyrz]

It's a somewhat higher hurdle to jump, in that it requires a constitutional amendment to remove the prohibition against ex post facto laws

No such hurdle exists. The government makes ex post facto laws, and the supreme court approves them when it gets to see them, regardless of the prohibitions of the constitution. Two examples come readily to mind. One is the prohibition on felons from owning firearms, though the law did not exist at the time of the felon's sentencing and the judge did not declare that a prohibition of owning firearms was a specific part of the punishment to be meted out. I know of no government excuse for this. The other is the registering of "sexual offenders" (Pee on a bush lately? Date someone a year too young on the wrong side of an age line?) where again, the registration was not ordered by a judge and no such law existed at the time, but the law applies retroactively to offenders, thereby increasing the punishment applied by the government. There is an excuse for this one, the argument is that "registration is not punishment, it is just a government function, and therefore this is not ex post facto." The argument is clearly specious, but that doesn't stop them from employing it. See how you feel if you imagine they put your name on such a list. That'll tell you if it is punishment, or just a triviality like listing you as a property owner.

Similarly, the inversion of the commerce clause has been used to create an excuse for the feds to (for example) use the legal system to attack users, growers and vendors of medical marijuana in California. The argument is that the pot, grown in California, distributed in California, used in California, "could" (cough) have been interstate commerce, and so the feds declare they have jurisdiction. The constitution clearly says they have jurisdiction in interstate commerce, not intrastate commerce, and again, we see the government doing anything it wants, regardless of what the constitution says.

I could go on for quite a while, pointing out broad and obvious constitutional violations in the areas of free speech, gun ownership, religion, warrants, article 10 and 14 violations... the point is, though, that the government is completely out of hand and what the constitution says they can or cannot do has long been either a non-issue or one that will crawl through the courts and then ruled into oblivion as have the exd post facto issues.

The constitution offers the means to make changes; but this is not convenient enough, and so we are faced on all sides with unconstitutional law, and told that it'll all be worked out in court if necessary, and in the meantime, comply or face the music.

For your reference: Ex post facto law as the term applies to the constitution, Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

1: Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2: Every law that aggravates a crime, or makes it greater than it was, when committed. 3: Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4: Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Re:Wired: The Eternal Value of Privacy

[Chris Burke]

It's very hard to convince someone of this, though, when it's their party in power.

Especially when they think their elected leader was largely chosen by God.

I hope I'm not being too specific here.

Hehe. But there's a good way to get around it -- point out the possibility of the other party being in power in the future!

That's what Republican Senator Larry Craig did on the Rush Limbaugh show. Craig was promoting a bill to add more civil rights safeguards and actual oversight into the USAPATRIOT Act. Rush was asking why such a thing was necessary, and was Craig claiming that civil liberties had been violated by George Bush's administration, and did he have any proof that it had happened. Rather than delving into that trap of pre-prepared talking point responses, Larry Craig pulled a wonderful switch. He said no, he thought Bush was doing a great job respecting liberties, but what if Hillary Clinton became the next President?!

Like magic, Rush was stopped in his tracks. He couldn't possibly argue that Hillary Clinton, Card-Carrying-Commie could be trusted to respect civil liberties based simply on her word! Coming from Rush, that'd practically be like an endorsement for her candidacy! No, suddenly the terrible spectre of a dictatorial Executive run amok with too much power was palpable.

This was a while ago, when the probability of Democratic president didn't seem quite so high. Now I think it should be relatively easy to get the my-party-is-fine-your-party-is-evil Republican types to see the danger. I should hope the same people on the Democrat side should be able to see the truth of the argument quite clearly already. But to actually get results, they'd both have to agree at the same time, and I'm not sure that will happen.

Re:Wired: The Eternal Value of Privacy

[StewedSquirrel]

Agreed, wholeheartedly.

Another example may be the retroactive increases to the statute of limitations.

There was a man tried and convicted due to recorded confessions he made AFTER the statute of limitations had run out. Because of his confessions, the legislator moved to increase the statute of limitations RETROACTIVELY, and therefore, he was arrested, and convicted of the crime he admitted to having committed.

I heard a number of people cheering this action, but I couldn't help but see yet another erosion in the freedoms that made the US an example to the world.

Stewed

Re:Wired: The Eternal Value of Privacy

[yankeessuck]

See McCarthyism for an concrete example of prosecution/persecution after the fact. The next witchhunt is always potentially around the corner and one can never be sure what it'll be about.

Re:Wired: The Eternal Value of Privacy

[AncientPC]

Because the government gets to define what's wrong, and they keep changing the definition. In the 1920 the US census added a harmless new field: nationality. Two decades later this information was used to round up citizens into German and Japanese internment camps during WW2.

Re:Wired: The Eternal Value of Privacy

[PopeRatzo]

Supporters of secret wiretapping aren't the sorts of people to be reading /., so I doubt that you will get a response.

Oh, they're reading. We've all seen them here, complaining about us dirty hippies who think the Bush Administration may have crossed the line with their extra-Constitutional claims and assertions of the power of the "Unitary Executive".

Whether they'll respond is a different question, though. It's tough to support secret wiretapping, even when a mighty, courageous war-president is doing the wiretapping.

Re:Wired: The Eternal Value of Privacy

[ShieldW0lf]

Privacy is only a way to protect you IF THE DATA ISN'T COLLECTED AT ALL.

Having the government keep it under wraps doesn't mean you have privacy.

It means that you are easily isolated.

If everyone is smoking pot, and the government knows through their surveillance who is smoking pot, but for reasons of privacy they do not disclose what they know to the general population, then any time they want to take you in, they can just grab you up, and you will stand alone.

That's what this is all about.

1) Make so many laws that everyone is guilty of something.
2) Convince everyone that it's better to keep things private.
3) Keep watching all the people and correlating data, but keep what you find secret.
4) Now everyone is isolated with their guilt, just like everyone else.
5) Now you can then selectively enforce the laws against those who threaten your power.


This is how totalitarian states are assembled.

Now, you may be a believer in privacy. Personally, I am not.

But if you are going to support privacy, be practical about it. Demand that the data not be collected at all in those cases where it hasn't already being collected, and demand enough transparency of process that you can know absolutely that it never is.

Don't, however, be idealistic about it and let the governments and corporations keep all the secrets they've already collected.

If you've already been caught doing something that is technically illegal, and the proof is in some government database somewhere, which would you rather?

a) Over 50% of the population is also technically guilty of the same thing that you're being judged for doing, but no one outside government offices knows that.

b) Over 50% of the population is also technically guilty of the same thing that you're being judged for doing, and everyone knows that.

Be specific about what you support, and don't be led to think that keeping it as a government secret now that it's too little too late is actually giving you any privacy or security. Because it isn't.

Re:Wired: The Eternal Value of Privacy

[flewp]

Around the corner? I'd say it is already here, and instead of witches or communists, the target is terrorists and others deemed "anti-American" or "unpatriotic".

Re:Wired: The Eternal Value of Privacy

[WhiplashII]

To me, this is the only acceptable reason for privacy. It is the same reason that individuals have unalienable rights to own guns. If we ever get to where we can't destroy the government by force, then government will drift towards dictatorship. If we have guns, we can take the government back when it goes to far - but without privacy, those guns cannot organize an effective resistance.

So we need privacy just like we need guns, to keep the government honest. It is expensive, in lives lost to criminals and similar, just like gun ownership. But it is the only reason the government will not become a dictatorship.

Re:Wired: The Eternal Value of Privacy

[Lavene]

So we need privacy just like we need guns, to keep the government honest. It is expensive, in lives lost to criminals and similar, just like gun ownership. But it is the only reason the government will not become a dictatorship. Uh... Are you sure about that? I mean, your (I guess you're American) government does not exactly come through as an honest group that fear the people even though the people do have guns.

I'm living in Europe where we don't have guns but still we have mostly honest governments that respect, and to some extent even fear, the people. Guns kill people, they don't create democracies. One should think you people (Americans) had learned that by now...

A government should fear the people, not because the people might kill them, but because the people have the power to remove them. If the government has to be removed with guns you already live in a dictatorship.

Way to respond to this argument

[Anonymous Coward]

Pull down your pants.

just ask...

[locust]

the jews. They had nothing to hide at all.

Re:just ask...

[ScrewMaster]

Just ask the jews. They had nothing to hide at all.

And not too long afterwards they also had nowhere to hide.

I'm not Jewish, as it happens ... but those two lines ought to give anyone pause. Especially if you're in the "I've nothing to hide so I'm safe" camp.

Proper response?

[oskay]

"So why are you wearing clothes?"

illegal vs ethical

[bluprint]

Off-hand, the main problem with that argument is that it assumes that legal behavior and ethical/moral behavior are exactly the same.

If the government is watching, they are obviously looking for anything they don't like. This could be generally illegal behavior, or behavior that is threatening to the continued operation of that institution.

In either case, if you accept monitoring because "you have nothing to hide" you assume that the standards of what should be allowed and whether the institution should continue to exist should rest with the government. To put it another way, you assume they have perfect judgement in regard to what should be happening in regard to monitored behavior of citizens.

So (for example), maybe the government should be overthrown (because it does some badness such that it deserves to be disolved). Obviously any existing government that needs to be overthrown isn't going to support that notion. By targeting the government's ability to monitor, we better allow for the possibility that a government that is no longer serving the needs of its people might get overthrown (I'm assuming, for the purposes of this example, that "being overthrown" is probably necessary on some regular basis).

whatever

[Anonymous Coward]

All attractive people *should* be legally required to stay naked on warm days because they have nothing to hide.

Any power given to the good cops...

[Anonymous Coward]

...is given to the bad cops too.

Cut the cutsie sayings

[loteck]

Here's a real cute 'saying', and it's the only one that matters:

"The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."

In the US, this is the foundation of privacy. It is a mandate to those who govern from the people who allow them to govern. If you really need to ask why, your ignorance of history is so staggeringly complete that it can only be attributed to being negligently willful.

Robert H. Jackson, RIP

[Tackhead]

> I'm in the minority because I like the Bush administration, but I do have to say that Ashcroft pissed me off when they imprisoned Tommy Chong. For the longest time anyone could buy drug paraphernalia in head shops. There was no law against it. Then suddenly Tommy Chong gets arrested ex post facto. They changed the interpretation of anti-drug laws on the fly so they imprisoned a man who did nothing illegal, and had no chance to stop doing it once they declared it illegal.

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens' What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

- Ayn Rand, Atlas Shrugged, 1957

And for those who don't like Rand, how about this quote, from a guy who preceded Rand by 17 years, and just might have been qualified to have an opinion on jurisprudence, seeing as how it was his entire career and stuff.

"With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."

- Robert H. Jackson, Attorney General (1940-1941), Supreme Court Justice (1948-1954), from a speech given in 1940

Re:It's hardly a "fallacy"

[moeinvt]

"Privacy is a responsibility... viewing it as a right only puts you at a disadvantage"

When we talk about our "Rights" in terms of those inalienable freedoms that our Constitutional Republic is founded on, we are specifically talking about prohibitions on the GOVERNMENT. Technology does not render our Rights "obsolete". Just because the government "can" spy on us doesn't mean that we have to give them permission to do it.

"Privacy" is my responsibility in the sense that I need to take certain precautions to protect things like my personal financial information, or trade secrets that I don't want to share with competitors. Privacy is my RIGHT, in the sense that I should NOT need to protect myself against unwarranted government snooping.

Privacy and the Bush Administration

[RNLockwood]

So, let's see if I understand the privacy argument. One don't deserve privacy if one has something to hide and one shouldn't care about loss of privacy if one has nothing to hide. Is that right?

Therefor the Bush Administration's refusal to allow staffers to testify to congress regarding the Justice Department purge proves that they do have something to hide.

parable from usenet 1993

[Flunitrazepam]

Newsgroups: alt.privacy.clipper,sci.crypt
Subject: A Parable.
References: <1993Apr20.013747.4122@cs.sfu.ca> <1993Apr21.210353.15305@microsoft.com>
Distribution: usa
Organization: Partnership for an America Free Drug

scottmi@microsoft.com (Scott Miller (TechCom)) writes:
>Stikes me that all this concern over the government's ability
>to eavesdrop is a little overblown... what can't they do today?
>My understanding is that they already can tap, listen, get access
>exc. to our phone lines, bank records, etc. etc again.

Well, they can't listen in on much of mine, since I already use
cryptography for much of my electronic mail, and will start using it
for my telephony as soon as practical.

However, allow me to tell a parable.

There was once a far away land called Ruritania, and in Ruritania
there was a strange phenonmenon -- all the trees that grew in
Ruritainia were transparent. Now, in the days when people had lived in
mud huts, this had not been a problem, but now high-tech wood
technology had been developed, and in the new age of wood, everyone in
Ruritania found that their homes were all 100% see through. Now, until
this point, no one ever thought of allowing the police to spy on
someone's home, but the new technology made this tempting. This being
a civilized country, however, warrants were required to use binoculars
and watch someone in their home. The police, taking advantage of this,
would get warrants to use binoculars and peer in to see what was going
on. Occassionally, they would use binoculars without a warrant, but
everyone pretended that this didn't happen.

One day, a smart man invented paint -- and if you painted your house,
suddenly the police couldn't watch all your actions at will. Things
would go back to the way they were in the old age -- completely
private.

Indignant, the state decided to try to require that all homes have
video cameras installed in every nook and cranny. "After all", they
said, "with this new development crime could run rampant. Installing
video cameras doesn't mean that the police get any new capability --
they are just keeping the old one."

A wise man pointed out that citizens were not obligated to make the
lives of the police easy, that the police had survived all through the
mud hut age without being able to watch the citizens at will, and that
Ruritania was a civilized country where not everything that was
expedient was permitted. For instance, in a neighboring country, it
had been discovered that torture was an extremely effective way to
solve crimes. Ruritania had banned this practice in spite of its
expedience. Indeed, "why have warrants at all", he asked, "if we are
interested only in expedience?"

A famous paint technologist, Dorothy Quisling, intervened however. She
noted that people might take photographs of children masturbating
should the new paint technology be widely deployed without safeguards,
and the law was passed.

Soon it was discovered that some citizens would cover their mouths
while speaking to each other, thus preventing the police from reading
their lips through the video cameras. This had to be prevented, the
police said. After all, it was preventing them from conducting their
lawful surveilance. The wise man pointed out that the police had never
before been allowed to listen in on people's homes, but Dorothy
Quisling pointed out that people might use this new invention of
covering their mouths with veils to discuss the kidnapping and
mutilation of children. No one in the legislature wanted to be accused
of being in favor of mutilating children, but then again, no one
wanted to interfere in people's rights to wear what they liked, so a
compromise was reached whereby all homes were installed with
microphones in each room to accompany the video cameras. The wise man
lamented few if any child mutilations had ever been solv

The Best Privacy Test.....

[IHC Navistar]

Being a Republican, I believe in a smaller government, and outright REFUSE to let someone compromise my rights to life, liberty, privacy, property, and pursuit of happiness. However, their are SOME "Republicans" who tend to think that being a Republican means a bigger Big Brother, and are starting to act in complete contradiction to what it truly means to be a Republican. Bush is a PRIME example.

SO, whenever someone counters my 'right to privacy' argument with "Well, what do YOU have to hide?", I always say:

"Absolutely nothing. Just because I don't want someone knowing everything about me and my habits doesn't mean that I have anything to hide.". Then I ask, "I'd like to look through your credit card statements, FasTrack statements, telephone records, bank records, internet records, computer hard drive, your house, your dresser, and the dog house. Will you let me?"

The response has ALWAYS been "No way. Why should I?"

To which I reply, "Well, what do YOU have to hide?"

I always get an irritated look after the final line. But it proves a point: Just because someone doesn't want you snooping through their life doesn't mean that they are hiding things.

It's the people doing the snooping that have things to hide.