The “Nothing To Hide” Defense — A Not Altogether Thoughtful Position That Forfeits Freedoms In An NSA Age

Or… How I Learned to Stop Worrying and Love the New Stasi

Sometimes I become so frustrated with a circumstance or a discussion/debate/argument that I have to continue to play it out by writing out the conclusion. I become frustrated when what should be a simple intellectual joust in pursuit of understanding or clarification devolves into confrontation. I’m always unsatisfied with that outcome, and I have to play out the scenario to its end. Thus follows…

It was a cold, brisk, wintery-rainy evening this past Saturday set alight by a Holiday Party amongst friends. For an hour, I wandered the crowd hugging, kissing, and smiling. Eventually I completed my rounds and found the food table filled with gourmet treats. While contemplating the choices, I overheard one of my more genteel friends pronounce an opinion robustly and openly. She, an always tanned, world traveler and cruise fanatic, was discussing with one of my more intellectual friends, an international businessman.

“Well, I’ve got nothing to hide, so I really could not care.” I instantly knew the topic and the position she had taken… and to me this was like hearing the starting gun for a thoroughbred at the Belmont Stakes. “What!,” I retorted uninvitedly. “You have got to be kidding; having nothing to hide has nothing to do with your right to privacy and your freedoms!,” I quipped. And, I was off!

image.w174h200f3The topic, of course, was about the recent revelations of the NSA snooping on American’s cellphone calls, international calls, world leader’s calls, etc. And the comment was a defense of this government snooping activity: the “Nothing To Hide” defense.

It was a very frustrating and disappointing “conversation.” It has to be in quotes because it wasn’t a conversation, not a discussion, not even a debate. You must both listen to each other and refute the stated points for a discussion to occur. “Oh, come on, I don’t want to hear it,” was the greeting to my comment.

I asserted, “Freedom is risky. If you want total security, you want to have a totalitarian society.” “That is absurd,” came promptly. “You don’t mind having your calls monitored or tracked because you think you have nothing to hide, which misses the point, but that’s the mentality of Russia and the former Soviet Union… that if you’re innocent, then you have nothing to hide, that one is guilty until proven innocent, while here we are innocent until proven guilty. If you are presumed innocent then no one has a right to track you and your calls or monitor you until you become suspected of engaging in illicit acts and a court order has been obtained.”

“We are talking about Terrorists for God Sake! Not some intellectual rant about Russia,” shot my way. To which I responded, “Yes, you want to be safe, but you are willing to give up your freedoms for security, and I happen to agree with Eisenhower when he said,” and I was halted in my tracks with a loud interruption. “Listen dear we are talking about protection from horrible terrorists.” “Yes, but that’s my point, and I still refer to what Eisenhower said when he,” and I was again stopped in my tracks. “You just don’t get it.” “I do, but I want to make my point with what Eisenhower said.” “We have been harmed by terrorists and must do what must be done to protect ourselves.” “Well, Eisenhower said…” “Oh! Enough, who cares?” “ Well, I do, and I want to make my point.” Another interruption, “How can you justify not taking precautions?!” “Are you gonna let me tell you?” Another interruption. “Are you gonna let me tell you?” Interruption. “Are you gonna let me tell you?” Interruption. “So, you really aren’t going to let me make my point?” “No, I’m not. Who cares what Eisenhower said. He wasn’t dealing with terrorists!”

“Ugh, you’re just being a Liberal!” was lobbed as an insult grenade as she turned on her heals and angrily darted away and into another small group where she ranted promptly about me, in what I was informed was a rather uncomplimentary complaint, to a fellow conservative (former advisor and aide to our recent republican governor) — ironically enough, one who knows how to discuss such matters respectfully without relinquishing her position. As she turned and ran, I rejoined sufficiently loud, “It’s not a matter of being Liberal or conservative; it’s just that I value my freedoms and rights. You may not deserve your freedoms, but I deserve mine.”

We made amends, though, as friends do. Yet, the situation still ate at me with disappointment. I will and do assert my views strongly, but I also enjoy hearing an opposed view and even more so their reasoning. I especially enjoy the back and forth attempt to understand or make one’s point in an attempt to convince. Sometimes that can be an energized or passionate attempt on my part, but it is never dismissive or rude. I may not give ground, but I don’t attempt to seize it, either. That is an important difference in “conversation.”

This is what President Dwight D. Eisenhower said in regards to the pursuit of extreme security in a free society:

“If you want total security, go to prison. There you’re fed, clothed, given medical care and so on. The only thing lacking… is freedom.”

I should have also offered this Eisenhower quip:

“May we never confuse honest dissent with disloyal subversion.”

I said correctly that “The War On Terror Is America’s Mania” in my July 22, 2013 posting to Faustian urGe, “Freedom Is Not Free — Risk In The Age After 9/11 & The Snowden Revelations.”

The above encounter and this topic, specifically, came at an interesting time, as more revelations from the Snowden NSA release showed that while it had been publicly admitted that the NSA recorded contacts and length of calls and locations of Americans on US soil, the truth is that American phone calls are being monitored for content, etc while they are traveling internationally. It was revealed that NSA monitors and records such calls in a vast net of internationally based calls and inevitably ensnares US citizens’ phone calls when they travel internationally. We are to be assured that these are syphoned out upon learning that a US citizen is the one being monitored. Really? OK.

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We Deserve Our Freedoms Even If We Have Nothing to Hide

Even I, the “Liberal,” can appreciate the wisdom of Ronald Reagan when he said to us,

“Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

Today, it seems that many Americans have forgotten this important lesson. And nowhere is the lack of knowledge and common sense of the American populace more apparent than as regards our collective response to the NSA revelations.

One retort to my genteel woman friend above I would have liked to deliver in response to, “We are talking about Terrorists for God Sake!,” would have been to the effect of: Terrorists are about terrorizing and thereby winning. Which is to say that if they instigate self-immolating fears that prompt a society to take actions harmful to the self, then they have won. That is the focus of terrorism. They cannot win by military defeat such as Germany triumphing over Poland in WWII, so they act in a manner that makes a “Poland” destroy itself. Or here, to make the US forfeit its most cherished quality: Freedom.

Thus, when Americans act out of fear and retreat to “security” as their overriding concern, they risk forfeiting many of the hard-won freedoms we have historically enjoyed. Americans will tolerate “snooping” and clear invasions of privacy and reduction of rights and freedoms because over privacy, rights, and freedoms, they are afraid of losing life (terrified).

Once upon a time, Americans would have said, “Give me Liberty or give me death!”

Today, the American mantra seems to be, “Give Up Your Liberty Or We’re All Gonna Die!”

Today, we seem to meekly yowl, writhe in painful fear, and willfully and willingly hand over our freedoms for a promised sense of safety.

I find this reaction disappointing and unacceptable.

As was said of those taking the “Nothing To Hide” argument regarding NSA activities,

“These fellow citizens of ours don’t care about their constitutionally protected freedoms because they don’t understand them or the consequences of losing them. And if you don’t care about a freedom, you’re sure to lose it.”

— Floyd Brown, a political appointee in the Reagan campaigns and consultant to the Bush, Dole, and Forbes presidential campaigns

The terrorists have won. And we have helped them to defeat us.

A handful of terrorist thugs destroy some of our iconic buildings and tragically kill three thousand people, and we willing trade away our rights because we have not the fortitude to earn and defend our freedoms, as freedom entails risk. Exposure to to risk is the cost of freedom… it is the deeper truth behind the trite cliché that “Freedom Is Not Free.” Indeed. And that was the point of my original post about risk in the age after 9/11. The point isn’t that we should not respond by taking precautionary measures. Risk and security must be balanced to achieve safety while preserving freedoms, not just as many as we can but all our freedoms.

We defeat terrorism by not succumbing to it.

Every single year more than 11,000 firearm-related homicide deaths occur in the United States. Each year! Yet, we mightily protest that restrictions cannot be legislated because this would intolerably infringe on our constitutional rights! Yet, after one single (and yes, horrific) attack in which less than a third of these casualties occurred, we toss away our rights and freedoms… seemingly, glibly. I find this disturbing and beneath a great society.

Now, don’t get me wrong about the loss of life on 9/11. I watched the second plane hit the tower live on television, and I wept as I saw the close up images of people jumping and falling out of the World Trade Center. At the time, I sat on the Board of Directors of an organization based in New York City, and I cried on the phone with my employees as they relayed to me what they saw outside their office windows, as they watched their friends and associates dying just down the street in the crushing inferno.

But in the scheme of things, this is what happened. We reacted… and overreacted. We invaded a country that never threatened us and killed more than 100,000 innocent civilians. We fearfully forfeited some of our highest freedoms that are constitutionally guaranteed. World War I started from a simple terrorist assassination of a European royal, Archduke Franz Ferdinand. An overreaction occurred. An entire continent went to war. Sometimes events cause reactions far out of proportion, and we must be on guard to measure ourselves and our actions.

We may simply look at history to understand why…

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“I’m not worried about NSA. Got nothing to hide & want to stay safe.” This is the sentiment of millions of Americans who sincerely believe they have nothing to worry about. They don’t think they’ve committed a crime, and therefore they’re comfortable allowing the NSA, Barack Obama, the CIA, and the FBI to know their whereabouts, personal email, text conversations and more.

I get it. None of us want to be blown up by al Qaeda.

The operational specifics of Prism and other NSA programs are still mostly classified. We have little knowledge of how the government snooping machine actually works. They claim to not listen to cellphone calls, but can we be sure? Machines can listen to millions of calls and report to humans. Government claims not to be reading emails, but we know they collect the emails… to be read later? Only the most naive believe the government doesn’t lie.

Americans, or citizens of any free society, have a right to know what information their government is collecting about them, and we should have the opportunity to correct mistaken information.

The Founding Fathers Agree

The Fourth Amendment to the U.S. Constitution reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Today our email and documents saved in “the cloud” and our cellphone conversations are the modern equivalent of our “papers and effects.” We have the right to expect that they’ll be protected from “unreasonable searches and seizures.”

I am not happy to let these long-protected and universally-understood civil liberties disappear with hardly a whimper or protest. Even if I have nothing to hide, I cannot forfeit freedoms for which generations of Americans fought and died just because I refuse to stand up and protest… even when standing in front of a valued friend.

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Privacy Matters

article-new-thumbnail_ehow_images_a02_0n_qp_respect-childs-right-privacy-800x800Privacy is a basic human need: Implying that only the dishonest have need of privacy ignores a basic characteristic of the human psyche and creates a built-in conflict. Humans have a fundamental need for privacy. I lock the door when I go to the men’s room, despite the fact that nothing secret happens in there. I have a fundamental need to do so, and any society must respect that fundamental need for privacy. In every society that doesn’t, citizens have responded with subterfuge and created their own private areas out of reach of the governmental surveillance, not because they are criminal, but because doing so is a fundamental human need.

Less than fifty years ago, if you were born a homosexual, you were criminal from birth. If today’s surveillance level had existed in the 1950s and 60s, the lobby groups for sexual equality could never have formed; it would have been just a matter of rounding up the organized criminals (“and who could possibly object to fighting organized crime?”). If today’s surveillance level had existed in the 1950s and 60s, homosexuality would still be illegal and homosexual people would be criminals by birth. It is an absolute necessity to be able to maintain privacy for society to progress and question its own values, in order to learn from mistakes and move on as a society.

On the surface, it seems easy to dismiss the nothing-to-hide argument: Everybody probably has something to hide from somebody. Everyone is guilty of something or has something to conceal. All one has to do is look hard enough to find what it is.

Canadian privacy expert David Flaherty expressed a similar idea when he argues: “There is no sentient human 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 attack the nothing-to-hide argument mostly at its extreme form. In a less extreme form, the nothing-to-hide argument refers not to all personal information but only to the type of data the government is likely to collect. In most cases, very few persons will see the information, and it won’t be disclosed to the public. Thus, some might argue, the privacy interest is minimal, and the security interest in preventing terrorism is much more important. In this less extreme form, the nothing-to-hide argument would seem to be a formidable one. But, it only seems that way.

The nothing-to-hide argument stems from faulty assumptions about privacy and its value — that privacy is about hiding bad things. Privacy is also about the “good things.”

Privacy creates a safe sphere in which we may engage in the machinations that create free democracy and diverse opinions. Without that safe sphere of privacy extended to its fullest, we are likely to grow more inhibited from full expressions of our selves, our views, and our values… for fear that if not now, then eventually this may be turned against us in the future. As the computer-security specialist Schneier aptly notes,

…the nothing-to-hide argument stems from a faulty “premise that privacy is about hiding a wrong.” Surveillance, for example, eventually inhibits desirable and lawful activities as free speech, free association, and other First Amendment rights essential for democracy.

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Total Information Surveillance of Society Is Problematic…

  • A potential problem with the government’s harvest of personal data is “exclusion.” Exclusion occurs when people are prevented from having knowledge about how information about them is being used, and when they are barred from accessing and correcting errors in that data. This kind of information processing, which blocks subjects’ knowledge and involvement, is a “due-process” problem — and we are all constitutionally guaranteed due process under the law. It is a structural problem involving the way people are treated by government institutions and creating a power imbalance between people and the government. To what extent should government officials have such a significant power over citizens? Especially in this age when information is often more powerful than money or arms. This issue isn’t about what information people want to hide but about the power and the structure of government… and the balance of power between the governed and those who govern.
  • Yet another problem with government gathering and use of personal data is “distortion.” For example, suppose government officials learn that a person has bought a number of books on how to manufacture methamphetamine. That information makes them suspect that he’s building a meth lab. What is missing from the records is the full story: The person is writing a novel about a character who makes meth. When he bought the books, he didn’t consider how suspicious the purchase might appear to government officials, and his records didn’t reveal the reason for the purchases. Should he have to worry about government scrutiny of all his purchases and actions? Should he have to be concerned that he’ll wind up on a suspicious-persons list? Even if he isn’t doing anything wrong, he may want to keep his records away from government officials who might make faulty inferences from them. He might not want to have to worry about how everything he does will be perceived by officials nervously monitoring for criminal activity. He might not want to have a computer flag him as suspicious because he has an unusual pattern of behavior.
  • Then we have the problem of “accretion.” Privacy is often threatened not by a single shocking act of overreach or abuse, but by the slow accretion of a series of relatively minor acts. In this regard, privacy problems mimic certain environmental harms that happen over time through a series of small acts by different persons and entities. Although society is more likely to respond to a major oil spill, gradual pollution by a multitude of sources creates worse problems, especially when taken as a whole.

Privacy is rarely lost all at once. It usually erodes over time, dissolving almost imperceptibly until we eventually start to notice how much has been lost. Each step we lose our rights and freedoms may seem incremental, but after a while, the government will be watching and knowing everything about us.

“My life’s an open book,” people might say. “I’ve got nothing to hide.” But the truth is that now the government has large dossiers of everyone’s activities, interests, reading habits, finances, and health.

  • What if the government leaks the information to the public?
  • What if the government mistakenly determines that based on your pattern of activities, you’re likely to engage in a criminal act (as warned in “Minority Report”)?
  • What if it denies you the right to fly?
  • What if the government thinks your financial transactions look suspect or just odd—even if you’ve done nothing wrong—and freezes your accounts?
  • What if the government doesn’t protect your information with adequate security, and an identity thief obtains it and uses it to defraud you?

Even if you have nothing to hide, the government can cause you a lot of harm.

Is The Free Selection Of Our Future Leaders Threatened?

More prescient and disturbing, is the possibility — nay, probability — that this information will be used by government interests (or in the interests being served by government) to derail the rising political aspirations of an individual perceived as undesirable by those controlling the information or by those for whom the information holders are serving.

  • Don’t like a rising Bill Clinton? Easy to gather the info at hand and create a scenario desired and release the info through surrogates to destroy any candidacy before they are even the candidate.
  • Want to stop a Tea Party rising star like Ted Cruz? Sabotage him with gathered info…even if none of it reveals illegal activity or information per se.
  • Or just gather all the Facebook postings of anyone younger than 30 to be able to reveal in any one of our future leaders all kinds of embarrassing personal pictures or comments made in youth or before maturation or that’s just really no one else’s true concern or right to know.
  • But the government can also harm people inadvertently, due to errors or carelessness., and this powerful fact must not be borne lightly.

The nothing-to-hide argument speaks to superficial problems but not to the prescient others. It represents a singular and narrow way of conceiving of privacy, and ignores consideration of the other problems often raised with government security measures.

The trade off between privacy and security is a false one…false at our founding and false today.

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. They base their position on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can’t we have both? Protecting privacy isn’t fatal to security measures, but it does involve proper and adequate oversight and regulation.

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One response to “The “Nothing To Hide” Defense — A Not Altogether Thoughtful Position That Forfeits Freedoms In An NSA Age

  • Charley James

    I’ve had very similar conversations going all the way back to when the totally (un)PATRIOT Act was signed into law. Worse, perhaps, was that the retorts than came back at me were along the lines of, “How can you say that? You knew two people who died on 9/11″ as if personal grief was enough top wipe out personal liberty.

    The fact is, there’s no such thing as a little bit of freedom; either we are a people who believe in actual liberty (as opposed to the pretend liberty that people such as Ron and Rand Paul, Sarah Palin, et al shout about) for whom the 4th Amendment means something, or we do not.

    When I was a kid and airplanes were being hijacked to Cuba, my mother was appalled when the government started having everyone’s luggage looked through and people had to go through “metal detectors,” taking off jewellery and belts because the metal in them set off a buzzer. At the time, Joyce told anyone who would listen that “this is the start of a police state.” She was universally derided as a kook but figured a detour via Havana for the day was better than what she saw as an illegal search and seizure.

    Joyce didn’t live long enough to witness the actual police state we now live in. And for anyone who actually believes NSA statements that it’s not listening to phone calls or reading the emails of Americans, I’s like to sell you my interest in the Brooklyn Bridge.

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