Monday, May 28, 2012

Solove, "I've Got Nothing to Hide" and Other Misunderstandings of Privacy

Here's a great article from SSRN (Social Science Research Network) on privacy -
Author - Daniel J. Solove
Title - "I've Got Nothing to Hide" and Other Misunderstandings of Privacy


There is often an argument made in privacy issues that no privacy problem exists with the government using all the information they want if a person has nothing to hide. Many people believe that when the government engages in surveillance there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that the information remain private. The idea behind this argument is that in the balance between security and privacy, security outweighs privacy all the time.

In order to respond to this argument, Solove defines privacy, assesses its value, and weighs it against other values.

First, Solove defines the "Nothing to hide" argument more clearly. Solove says that the "Nothing to hide" argument is the response to government intervention that might result in an invasion of privacy. This includes, but is not limited to, actions such as profiling and surveillance. In response to the government performing these actions, citizens say that the government should be allowed to do this because "they have nothing to hide," and so the government's actions won't make a difference to them.

Solove says that this response is common, but can be responded to with some wit. All it takes is asking if a person has curtains to make a person realize that although they might not have anything to hide, they have things they don't want to show everyone or tell everyone. For instance, he says that everyone has a threshold that can be reached after which they consider questions of a personal nature to be intrusive. This is a basic concept of personal privacy that people do not want breached.

But if the "Nothing to hide" argument is cast in a more general manner it can be harder to refute. Instead of saying all citizens should have nothing to hide, the argument can be made that "all law-abiding citizens should have nothing to hide." Then the argument becomes harder to refute because you don't want to be seen as someone engaging in, or possibly engaging in, illegal activity simply because you don't want people or the government prying into your life.

Privacy today seems to involve less the idea of seclusion and more the idea of hiding of information that others might use to harm you or to discredit you or use to your disadvantage. Therefore, if you are insisting on privacy, you are insisting that there is information out there that hints at something "bad" about you.

The final version of the "Nothing to hide" argument weighs security against privacy and says that the value of privacy is low because the information is not particularly sensitive for most people but those who desperately want privacy the most have the most to hide and the cost of protecting their privacy is too high. In this form, the very limited disclosure of information to government agencies of information is not likely to be threatening to law-abiding citizens, even if it does invade their privacy, but it will protect all citizens.

This still leaves the problem of conceptualizing privacy. There are many different ways of conceptualizing privacy:

1) Traditional method: Conceptualizing privacy per genus et differentiam - by looking for necessary and sufficient elements that demarcate what privacy is' locating the core characteristic or the common denominator of the things we link together under privacy.

2)Defined by intimacy: privacy covers intimate information access and decisions; however this is too narrow because not all information we consider private is also intimate. As an example, a Social Security number, religious belief and credit card number are not intimate, but are still considered private.

3) Right to be let alone: Warren and Brandeis tried to define privacy as the right to be let alone, however this is too broad. If I shove you, I am interfering in your right to be let alone, however it is not a problem of privacy.

4) Privacy as familial resemblances: When privacy is conceptualized as familial resemblances is means that there isn't one thing in common that is the same among everything, but rather that everything relates in many different ways - they share a complicated network of similarities. This provides the least restrictive definition without being overly broad.

So what is the value of privacy that it can be weighed and measured?

Many people view privacy as an individual right - but does it have a social value as well? Emerson says that the right to privacy is based upon a right not  to participate in a collective right. The courts have said that the right of privacy is based on the knowledge of the sovereignty of the individual.

Part of society's purpose is to protect the individual. Therefore, if privacy is about the individual, then it must have a societal purpose to protect it because society has to protect the individual and privacy is the individual.

But privacy involves protecting against a lot of various harms and problems - not just on type of harm or problem - and so the value of protection must be weighed against the value of the harm or the problem in each individual case. Not all privacy problems are equal.

However, harm is hard to see in privacy problems because invading privacy rarely results in dead bodies or injuries. It results in emotional or reputational harm which is harder to see, less physical, and harder to quantify. Therefore, it is seen as always less important than the possibility - no matter how  remote - of dead bodies at the end of the national security problem.

Regardless of how the "Nothing to hide" problems is phrased, the real problem is that privacy hasn't been conceptualized properly as something to protect, as a right, and that harm to privacy hasn't been properly understood. Until that happens the "Nothing to hide" argument will always seem to win because it will always seem to hold the upper hand.

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