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B. The Social Value of Privacy

Some utilitarians like Etzioni frame society needs and individual needs as a dichotomy where society should usually win (p. 761 or pdf page 17). Others like Dewey thinks “individual rights are not trumps, but are protections by society from its intrusiveness” that should be measured in welfare, not utility. “Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others” (p. 762 or pdf page 18). So, privacy can manifest in our right to not be intruded.

Section IV. The problem with the “Nothing to Hide” argument

A. Understanding the Many Dimensions of Privacy

Privacy isn’t about hiding a wrong, concealment, or secrecy (p. 764 or pdf page 20).

Being watched’s “chilling effects [i.e. getting scared into not doing something] harm society because, among other things, they reduce the range of viewpoints expressed and the degree of freedom with which to engage in political activity”; but even so, it’s kinda super hard to prove that a chilling effect happened so it’s easy for a Nothing to Hider to say that the NSA’s “limited surveillance of lawful activity will not chill behavior sufficiently to outweigh the security benefits” (p. 765 or pdf page 21). Personal damage from privacy is hard to prove by nature, but it still exists.

If we use the taxonomy, we notice that the NSA thingamabob has:

• Aggregation: if some mysterious guy Kafkaesquely compiles a crapton of data without any of your knowledge – with human bureaucratic “indifference, errors, abuses, frustration, and lack of transparency and accountability” – then they could pretty easily decide that they can guess what you might be wanting to hide or predict what People Like You might do later. Oopsie: it’s kind of hard to refute or hide a “future” behavior.
• Exclusion: You have no idea what they’re doing or if it is CORRECT information. That’s a kind of due process problem and a power imbalance – the NSA is insulated from accountability even though they have hella power over citizens.
• Secondary use: “The Administration said little about how long the data will be stored, how it will be used, and what it could be used for in the future. The potential future uses of any piece of personal information are vast, and without limits or accountability on how that information is used, it is hard for people to assess the dangers of the data being in the government’s control”

But then the Nothing to Hide argument only focuses on one or two definitions but not others. So it’s unproductive.

(p. 766-767 or pdf page 22-23)

B. Understanding Structural Problems

Privacy isn’t usually one big harm, like that one thing where Rebecca Schaefer and Amy Boyer were killed by a DMV-data-using stalker and database-company-using stalker respectively (p. 768 or pdf page 24); it’s closer to a bunch of minor things like how gradual pollution is.

Airlines violated their privacy policies after 9/11 by giving the government a load of passenger info. Courts decided the alleged contractual damage wasn’t anything and rejected the contract claim. However, this breach of trust falls under the secondary use taxonomy thing and is a power imbalance in the social trust between corpo and individual: if the stated promise is meaningless, companies can do whatever they want with data – this is a structural harm even if it’s hard to prove your personal damages (p.769-770 or pdf page 25-26)

There should be oversight – warrants need probable cause, wiretaps should be minimal and with judicial supervision – Bush oopsied here (p. 771 or pdf page 27).

“Therefore, the security interest should not get weighed in its totality against the privacy interest. Rather, what should get weighed is the extent of marginal limitation on the effectiveness of a government information gathering or data mining program by imposing judicial oversight and minimization procedures. Only in cases where such procedures will completely impair the government program should the security interest be weighed in total, rather than in the marginal difference between an unencumbered program versus a limited one. Far too often, the balancing of privacy interests against security interests takes place in a manner that severely shortchanges the privacy interest while inflating the security interests. Such is the logic of the nothing to hide argument” (p. 771-772 or pdf page 27-28).

Section V. Conclusion

Nothing to Hide defines privacy too narrowly and ignores the other problems of surveillance and data mining.