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Privacy and the "Nothing To Hide" Argument 728

Posted by kdawson
from the framing-the-debate dept.
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."
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Privacy and the "Nothing To Hide" Argument

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  • Third definition (Score:3, Informative)

    by phorm (591458) on Tuesday July 10, 2007 @06:09PM (#19818973) Journal
    Actually, the third one is a good point. There are a lot of abuses of personal information, and the more that is available the more abuses there will be:

    Because you might do something wrong with my information.

    All the companies that "lose" your credit card info and others seem to get slaps on the wrist. Having your credit ruined can ruin your life. Now how about if somebody gets access to your more personal info. Suddenly you're an even better target for stalking, extortion, and more. *NOT* good.

    Even if the government wasn't going to abuse this information (and they will), security leaks and hacking would lead to it being available to those that would have no problem abusing it.
  • by fyngyrz (762201) * on Tuesday July 10, 2007 @06:22PM (#19819155) Homepage Journal
    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.

  • by geekotourist (80163) on Tuesday July 10, 2007 @07:25PM (#19819735) Journal
    What I think is the Best Essay Ever on Privacy [privcom.gc.ca] comes from the former privacy commissioner of Canada. In his 2003 overview to his privacy report to Canada he writes why privacy is a fundamental human right, and he warns Canada not to give away rights now eroded or gone in the U.S., especially if it's at the U.S. government's request. It's a short sharp essay, well-worth the reading.

    Sad part is that 4 years on Canadians have been forced to adopt what he warned about, and the US has gotten worse. Thing about the proverbial frog in the stovetop bath is that everyone thinks that if you know about the frog in the pot, you can't possibly be the frog in the pot.

    A few extracts:
    "In the months immediately following September 11, I was in fact quite optimistic that, with regard to privacy, the Government was on the whole being balanced and thoughtful in its response. But now the floodgates appear to have burst. Now "September 11" is invoked as a kind of magic incantation to stifle debate, disparage critical analysis and persuade us that we live in a suddenly new world where the old rules cannot apply. If Parliament and the public at large have been slow to react, it is probably because for most people, most of the time, privacy is a pretty abstract concept. Like our health, it's something we tend not to think about until we lose it - and then discover that our lives have been very unpleasantly, and perhaps irretrievably, altered. But though we tend to take it for granted, privacy - the right to control access to ourselves and to personal information about us - is at the very core of our lives. It is a fundamental human right precisely because it is an innate human need, an essential condition of our freedom, our dignity and our sense of well-being.

    "The truth is that we all do have something to hide, not because it's criminal or even shameful, but simply because it's private. We carefully calibrate what we reveal about ourselves to others. Most of us are only willing to have a few things known about us by a stranger, more by an acquaintance, and the most by a very close friend or a romantic partner. The right not to be known against our will - indeed, the right to be anonymous except when we choose to identify ourselves - is at the very core of human dignity, autonomy and freedom.

    ..If we allow the state to sweep away the normal walls of privacy that protect the details of our lives, we will consign ourselves psychologically to living in a fishbowl. Even if we suffered no other specific harm as a result, that alone would profoundly change how we feel. Anyone who has lived in a totalitarian society can attest that what often felt most oppressive was precisely the lack of privacy.

    But there also will be tangible, specific harm. [..Examples given...]

    If information that is actually about someone else is wrongly applied to us, if wrong facts make it appear that we've done things we haven't, if perfectly innocent behavior is misinterpreted... we will be at risk of finding ourselves in trouble in a society where everyone is regarded as a suspect. By the time we clear our names and establish our innocence, we may have suffered irreparable financial or social harm...If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about it, analyze it, judge it, possibly misconstrue it, and somehow use it to our detriment, we are not truly free..."

    " One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well, but in times of turmoil, when fidelity to values and principle seems an extravagance we can ill afford. History also teaches us that whenever we have given in to that kind of thinking, we have lived to regret it. At the time, the loss of freedom might seem small, trivial even, when place

  • by steveb3210 (962811) * on Tuesday July 10, 2007 @07:36PM (#19819853)
    O'Rly?
    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?c ourt=US&navby=case&vol=000&invol=01-1757 [findlaw.com]

    Held: A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.

  • by kwerle (39371) <kurt@CircleW.org> on Tuesday July 10, 2007 @07:40PM (#19819877) Homepage Journal
    IANAL ... 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. ... 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...

    That's not the same as making it illegal to have done something and then charging someone for having done it. It would be ex post facto if they passed that law and then sent a felon up for having owned a gun last week. That's just a change in the law.

    Smoking is no longer permitted in restaurants in California. It's the same kind of thing. People don't get to do that anymore. Felons don't get to own guns anymore.

    Felons can argue that it's a violation of their rights, but I don't think you can reasonably call that ex post facto.

    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...

    No, the law applies to past offenders. They are not charged for failing to register ex post facto.

    It's a pedantic argument, but most legal stuff is at some level.
  • by falconwolf (725481) <falconsoaring_2000@@@yahoo...com> on Tuesday July 10, 2007 @07:55PM (#19820005)

    See how you feel if you imagine they put your name on such a list.

    A few year back or so this teenager was put on a sexual offender registry in, I believe it was Gainsville, FL, something about him "exposing himself indecently" or some such and because the hassazment he went through he eventually killed himself.

    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.

    Ah but a couple of those methods used in court, Fully Informed Jury [fija.org] and jury nullification [greenmac.com], the courts try to prevent. Even though they were used by Founding Fathers of the USA. Jurors are told they can't look up or investigate themself and if they do they can be disqualified from the jury. And judges tell jurors they must just make a ruling on the facts of the case, they're not supposed to decide if a law is unconstitutional nor are they able to follow their conciousness. Personally I've been called for jury duty twice, hoping to get selected as a juror for a drug trial, so I could vote "not guilty" saying drug laws are unconstitutional. However neither tyme was I even called up for questioning.

    Falcon
  • by ravenshrike (808508) on Tuesday July 10, 2007 @08:28PM (#19820225)
    The problem with the felons not owning guns thing is that there are many felonies which should have no impact on the matter. Unless you have committed a violent felony is there really any reason to take your ability to defend yourself away?
  • by slashqwerty (1099091) on Tuesday July 10, 2007 @08:31PM (#19820247)
    Smoking is no longer permitted in restaurants in California. It's the same kind of thing. People don't get to do that anymore. Felons don't get to own guns anymore.

    So congress passes a law saying anyone who has ever been convicted of j-walking can't assemble at a protest. It's the same kind of thing. Felons don't get to own guns any more. And j-walkers don't get to protest. Never mind that such a penalty did not exist at the time they committed the offense or that they have a constitutional right to protest!

    Felons can argue that it's a violation of their rights, but I don't think you can reasonably call that ex post facto.

    The parent post ends with a definition of ex post facto. The definition was written just a few years prior to the constitution. Clause three of the definition:

    3: Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
  • by rock_climbing_guy (630276) on Tuesday July 10, 2007 @08:53PM (#19820451) Journal
    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.

    Excellent point. The precedent for this actually goes back to President Franklin Roosevelt's "New Deal" programs that dramatically increased the power of the federal government. You may enjoy learning about the hoops he jumped through to get what he wanted. Some historians refer to him as the 'father' of 'big government.'

  • by Anonymous Coward on Tuesday July 10, 2007 @11:13PM (#19821359)
    From the parent's link on jury nullification: [greenmac.com]

    About 18 months ago, armed with a number of pamphlets explaining the importance to each of us in having the courts fully inform juries of their rights, I stood in the Mendocino County Courthouse. I had been talking about this issue, with courthouse visitors when I was "invited" into Judge James Luther's courtroom by two of his bailiffs. Judge Luther, showed me how in general our courts have eroded. I was told to stop talking to my fellow citizens about their constitutional rights. Their right to understand a jury's role in the court procedure. I was told to stop or be arrested for jury tampering.
    Please consider putting him back in the court house or another person as a set up to fix this. We need jury nullification back into the mindset of potential jurors nationwide. Such heavy handed actions by the governments of this nation must be stopped.
  • by Danse (1026) on Wednesday July 11, 2007 @01:06AM (#19821993)

    Say what you want, but if you are corresponding with a suspected terrorist, then you have no right to expect any privacy.
    Maybe not, but we do have a right to expect the President of the United States to respect the Constitution and get a warrant. He's not above the law anymore than anyone else is. Or at least he shouldn't be. Oh yeah, and could someone remind me again why we give presidents the power to pardon convicted criminals? Or at least why they don't have to recuse themselves from pardoning those whom they have some relationship with? I can't seem to come up with any good reason for that.
  • by Thing 1 (178996) on Wednesday July 11, 2007 @01:40AM (#19822151) Journal

    That's what this is all about.

    1) Make so many laws that everyone is guilty of something.

    Here begins one of my favorite quotes:

    "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. Your 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...that's the game, and once you understand it, you'll be easier to deal with."

    - Ayn Rand, Atlas Shrugged

    She wrote that in the 50s. It's so relevant today. You know it took a Constitutional Amendment to outlaw alcohol? Yet today we have so many more substances that are illegal, with far worse penalties than alcohol possession or distribution gave in the 20s! And no amendments were passed in order to outlaw them. Does that seem rational?

    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.

    Also, the government is very good at "losing" laptops containing these databases...

  • by dryeo (100693) on Wednesday July 11, 2007 @03:06AM (#19822537)
    Federally cannabis is a schedule 1 drug like heroin, worse then Cocaine. While generally the feds won't bust you for a joint they have been known to. Timothy Leary IIRC was busted for 3 seeds in the carpeting of his car. If you are like I used to be, growing a years supply at a time you can easily be arrested for trafficking and if the prosecution plays its cards right you can get life. Up till recently (Reagen era) being a drug kingpin could mean death. Also some states also had the death penalty for things like smoking around children.
    Article on the history of marijuana laws in the States, http://en.wikipedia.org/wiki/Legal_history_of_mari juana_in_the_United_States [wikipedia.org]
    The controlled substances act http://www.usdoj.gov/dea/pubs/csa.html [usdoj.gov]
    Now I'm not sure about the dividing line in the USA between misdemeanors and felonies but according to this http://www.usdoj.gov/dea/pubs/csa/844.htm#a [usdoj.gov] for a first offence you get a year, second offence 2 years and 3rd offence 3 years max plus a fine in all cases. Seems any crime that can put you in prison for 3 years would be a felony.
    Of course if you happened to grow a pound or so so you don't have to deal with dealers etc the penalties get much worst.
  • by Littleman_TAMU (589126) on Wednesday July 11, 2007 @08:27PM (#19832845)
    "Guns kill people, they don't create democracies."

    They gave us the ability to create ours (USA). Oh, and guns don't kill people, that's the person holding the gun and pulling the trigger or the person who fails to teach their children about gun safety.

    "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."

    You just made the argument for gun ownership. Governments should fear us for our right to remove them. If you don't have guns and it comes to the point where having them is the only way to remove the government, then you're screwed. It's true that, at that point, you probably are in a dictatorship, but that's when you need guns most. Giving them up early on, just because you're not in a dictatorship now makes no sense. As the saying goes, "There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order." -- Ed Howdershelt

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