Monday, May 23, 2011

Why Privacy Matters Even if You Have 'Nothing to Hide'

by Daniel J. Solove

When the government gathers or analyzes personal information, many people say they're not worried. "I've got nothing to hide," they declare. "Only if you're doing something wrong should you worry, and then you don't deserve to keep it private."

The nothing-to-hide argument pervades discussions about privacy. The data-security expert Bruce Schneier calls it the "most common retort against privacy advocates." The legal scholar Geoffrey Stone refers to it as an "all-too-common refrain." In its most compelling form, it is an argument that the privacy interest is generally minimal, thus making the contest with security concerns a foreordained victory for security.

The nothing-to-hide argument is everywhere. In Britain, for example, the government has installed millions of public-surveillance cameras in cities and towns, which are watched by officials via closed-circuit television. In a campaign slogan for the program, the government declares: "If you've got nothing to hide, you've got nothing to fear." Variations of nothing-to-hide arguments frequently appear in blogs, letters to the editor, television news interviews, and other forums. One blogger in the United States, in reference to profiling people for national-security purposes, declares: "I don't mind people wanting to find out things about me, I've got nothing to hide! Which is why I support [the government's] efforts to find terrorists by monitoring our phone calls!"

The argument is not of recent vintage. One of the characters in Henry James's 1888 novel, The Reverberator, muses: "If these people had done bad things they ought to be ashamed of themselves and he couldn't pity them, and if they hadn't done them there was no need of making such a rumpus about other people knowing."

I encountered the nothing-to-hide argument so frequently in news interviews, discussions, and the like that I decided to probe the issue. I asked the readers of my blog, Concurring Opinions, whether there are good responses to the nothing-to-hide argument. I received a torrent of comments:
  • My response is "So do you have curtains?" or "Can I see your credit-card bills for the last year?"
  • So my response to the "If you have nothing to hide ... " argument is simply, "I don't need to justify my position. You need to justify yours. Come back with a warrant."
  • I don't have anything to hide. But I don't have anything I feel like showing you, either.
  • If you have nothing to hide, then you don't have a life.
  • Show me yours and I'll show you mine.
  • It's not about having anything to hide, it's about things not being anyone else's business.
  • Bottom line, Joe Stalin would [have] loved it. Why should anyone have to say more?
On the surface, it seems easy to dismiss the nothing-to-hide argument. Everybody probably has something to hide from somebody. As Aleksandr Solzhenitsyn declared, "Everyone is guilty of something or has something to conceal. All one has to do is look hard enough to find what it is." Likewise, in Friedrich D├╝rrenmatt's novella "Traps," which involves a seemingly innocent man put on trial by a group of retired lawyers in a mock-trial game, the man inquires what his crime shall be. "An altogether minor matter," replies the prosecutor. "A crime can always be found."

One can usually think of something that even the most open person would want to hide. As a commenter to my blog post noted, "If you have nothing to hide, then that quite literally means you are willing to let me photograph you naked? And I get full rights to that photograph—so I can show it to your neighbors?" The Canadian privacy expert David Flaherty expresses 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."

But such responses attack the nothing-to-hide argument only in its most extreme form, which isn't particularly strong. 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. Retorts to the nothing-to-hide argument about exposing people's naked bodies or their deepest secrets are relevant only if the government is likely to gather this kind of information. In many instances, hardly anyone 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 is a formidable one. However, it stems from certain faulty assumptions about privacy and its value.

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