Solove - Nothing to Hide The False Tradeoff between Privacy and Security

NOTHING TO HIDE

The False Tradeoff
between Privacy
and Security

DANIEL J. SOLOVE

To Pamela and Griffin, with love

Copyright 2011 by Daniel J. Solove.
All rights reserved.
This book may not be reproduced, in whole or in part, including illustrations,
in any form (beyond that copying permitted by Sections 107 and 108 of the U.S.
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Library of Congress Cataloging-in-Publication Data

Solove, Daniel J., 1972

Nothing to hide : the false tradeoff between privacy and security / Daniel J. Solove.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-300-17231-7 (cloth : alk. paper) 1. Privacy, Right ofUnited

States. 2. Law enforcementUnited States 3. National securityLaw and
legislationUnited States I. Title.

KF1262.S65 2011

342.730858dc22 2010049542

A catalogue record for this book is available from the British Library.

This paper meets the requirements of ANSI/NISO Z39.481992 (Permanence of Paper).

10 9 8 7 6 5 4 3 2 1

PART I: Values: How We Should Assess and Balance
the Values of Privacy and Security

PART II: Times of Crisis: How the Law Should Address Matters
of National Security

8 The Problem with Dissolving the Crime-Espionage
Distinction

PART III: Constitutional Rights: How the Constitution
Should Protect Privacy

12 The Failure of Looking for a Reasonable
Expectation of Privacy

PART IV: New Technologies: How the Law Should Cope
with Changing Technology

17 The Law-and-Technology Problem and the
Leave-It-to-the-Legislature Argument

18 Video Surveillance and the No-Privacy-in-Public
Argument

20 The Luddite Argument, the Titanic Phenomenon,
and the Fix-a-Problem Strategy

The idea for this book began with an essay I wrote a few years ago called Ive Got Nothing to Hide and Other Misunderstandings of Privacy. After I posted it online, I was stunned by the attention it received across the Internet and in the media. I realized that there was a lot of interest in the debate between privacy and national security and that the same group of arguments came up again and again. I also realized that there were many misimpressions about the law.

Increasingly, Ive found it frustrating when I hear certain arguments in favor of heightened security that have become quite prevalent. I believe they have skewed the balance between privacy and security too much to the security side. One of my goals in this book is to respond to some of these arguments.

I have written this book for a general audience, avoiding legal jargon and wonky policy analysis. Ive presented more detailed policy proposals in my law review articles, but for this book, I focus on the general arguments and principles rather than technical minutiae. Of course, the details are important, but even more important are the basic concepts and themes of the debate. I hope that this book will put to rest certain arguments so that the debate can move ahead in more fruitful ways.

Although I have focused primarily on American law, the arguments and ideas in the debate are universal. Despite a few differences, the law in many countries operates similarly to American law, and it often uses the same techniques to regulate government information gathering. The arguments and policy recommendations I propose in this book are meant to be relevant not just in the United States but also in other nations whose lawmakers are struggling with these important issues.

Some of the material for this book was adapted from a few of my law review articles. These articles are much more extensive than their adaptations in this book, and they are often very different in form and argument. I have not fully incorporated these articles here, so they remain independent works. I recommend that you check them out if you want a more technical treatment of some of the issues in this book: Fourth Amendment Pragmatism, 51 Boston College Law Review (forthcoming); Data Mining and the Security-Liberty Debate, 74 University of Chicago Law Review 343 (2008); Ive Got Nothing to Hide and Other Misunderstandings of Privacy, 44 San Diego Law Review 745 (2007); The First Amendment as Criminal Procedure, 84 New York University Law Review 112 (2007); Fourth Amendment Codification and Professor Kerrs Misguided Call for Judicial Deference, 74 Fordham Law Review 747 (2005); Melvilles Billy Budd and Security in Times of Crisis, 26 Cardozo Law Review 2443 (2005); Reconstructing Electronic Surveillance Law, 72 George Washington Law Review 1264 (2004). My thinking has evolved since the publication of many of these articles, so this book represents my most current view of the issues. Moreover, writing this book forced me to think more broadly about the topic of privacy versus security, and there are many issues I address here that I havent addressed before.

Many people helped me greatly with this project. My wife, Pamela, provided constant support and encouragement as well as superb suggestions on the manuscript. Many others have made immensely helpful comments on this book: Danielle Citron, Tommy Crocker, Deven Desai, Chris Hoofnagle, Orin Kerr, Raymond Ku, Paul Ohm, Neil Richards, and Michael Sullivan. I would also like to thank my research assistant, Matthew Albanese, for his help. My editor, Michael OMalley, was a joy to work with, and my copyeditor, Dan Heaton, carefully reviewed the manuscript. My agent, Susan Schulman, provided excellent guidance and encouragement throughout the publication process.

We must be willing to give up some privacy if it makes
us more secure.

If youve got nothing to hide, you shouldnt worry about
government surveillance.

We shouldnt second-guess security officials.

In national emergencies, rights must be cut back,
but theyll be restored later on.

We hear these arguments all the time. We hear them in the conversations we have each day with our family, friends, and colleagues. We hear them in the media, which is buzzing with stories about government information gathering, such as the Total Information Awareness program, the airline passenger screening program, and the surveillance of peoples phone calls conducted by the secretive National Security Agency. We hear them made by politicians and security officials. And we hear them made by judges deciding how to balance security measures with peoples constitutional rights.

These arguments are part of the debate between privacy and security. The consequences of the debate are enormous, for both privacy and security are essential interests, and the balance we strike between them affects the very foundations of our freedom and democracy. In contemporary timesespecially after the terrorist attacks on September 11, 2001the balance has shifted toward the security side of the scale. The government has been gathering more information about people and engaging in more surveillance. Technology is giving the government unprecedented tools for watching people and amassing information about themvideo surveillance, location tracking, data mining, wiretapping, bugging, thermal sensors, spy satellites, X-ray devices, and more. Its nearly impossible to live today without generating thousands of records about what we watch, read, buy, and doand the government has easy access to them.