The Nothing-to-Hide Argument – My Essay’s 10th Anniversary

Daniel Solove
Founder of TeachPrivacy

Privacy Surveillance Nothing to Hide Argument

In response to government surveillance or massive data gathering, many people say that there’s nothing to worry about.  “I’ve got nothing to hide,” they declare.  “The only people who should worry are those who are doing something immoral or illegal.”

Nothing to Hide - SoloveThe nothing-to-hide argument is ubiquitous.  This is why I wrote an essay about it 10 years ago called “I’ve Got Nothing to Hide,” and Other Misunderstandings of Privacy, 44 San Diego Law Review 745 (2007).  It was a short law review piece, one that I thought would be read by only a few people.  But to my surprise, this essay really resonated with many people, and it received an unusually high number of downloads for a law review essay.  I later expanded the ideas in the essay into a book: Nothing to Hide: The False Tradeoff Between Privacy and Security  (Yale University Press 2011).

This year is the 10th anniversary of the piece.  A lot has happened between then and now.  Not too long before I wrote my essay, there were revelations of illegal NSA surveillance.  A significant percentage of the public supported the NSA surveillance, and the nothing-to-hide argument was trotted out again and again.  This was the climate in which I wrote the essay.

Later on, in 2013, Edward Snowden revealed that the NSA was engaging in extensive surveillance far beyond its legal authority.  Snowden declared: “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.”  This time, there was a significantly large percentage of the public that didn’t side with the NSA but instead demanded scrutiny and accountability.

Nevertheless, the nothing-to-hide argument is far from vanquished.  There will always be a need for citizens to demand accountability and oversight of government surveillance, or else we will gradually slide into a more dystopian world.

Here are a few short excerpts from my nothing-to-hide essay:

Nothing to Hide ArgumentMany commentators who respond to the argument attempt a direct refutation by trying to point to things that people would want to hide.  But the problem with the nothing to hide argument is the underlying assumption that privacy is about hiding bad things.  Agreeing with this assumption concedes far too much ground and leads to an unproductive discussion of information people would likely want or not want to hide.

*  *  *  *

Far too often, discussions of the NSA surveillance and data mining define the problem solely in terms of surveillance.  To return to my discussion of metaphor, the problems are not just Orwellian, but Kafkaesque.  The NSA programs are problematic even if no information people want to hide is uncovered.  In The Trial, the problem is not inhibited behavior, but rather a suffocating powerlessness and vulnerability created by the court system’s use of personal data and its exclusion of the protagonist from having any knowledge or participation in the process.  The harms consist of those created by bureaucracies—indifference, errors, abuses, frustration, and lack of transparency and accountability.

*  *  *  *

The NSA program involves a massive database of information that individuals cannot access.  Indeed, the very existence of the program was kept secret for years.   This kind of information processing, which forbids people’s knowledge or involvement, resembles in some ways a kind of due process problem.  It is a structural problem involving the way people are treated by government institutions.  Moreover, it creates a power imbalance between individuals and the government.  To what extent should the Executive Branch and an agency such as the NSA, which is relatively insulated from the political process and public accountability, have a significant power over citizens?  This issue is not about whether the information gathered is something people want to hide, but rather about the power and the structure of government.

*  *  *  *

The issue, however, often is not whether the NSA or other government agencies should be allowed to engage in particular forms of information gathering; rather, it is what kinds of oversight and accountability we want in place when the government engages in searches and seizures.

There’s a lot more in my essay if you’re interested in reading it.  You can download it for free here.  I think that it still remains relevant now, 10 years later.

Citations and Links

“I’ve Got Nothing to Hide,” and Other Misunderstandings of Privacy
44 San Diego Law Review 745 (2007)

Nothing to Hide: The False Tradeoff Between Privacy and Security
(Yale University Press 2011)

* * * *

This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics.  Professor Solove also posts at his blog at LinkedIn.  His blog has more than 1 million followers.

Privacy+Security ForumProfessor Solove is the organizer, along with Paul Schwartz of the Privacy + Security Forum (Oct. 4-7, 2017 in Washington, DC), an annual event that aims to bridge the silos between privacy and security. 

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