We should not — and don’t need to — trade privacy off in order to be more secure. In his book Nothing to Hide: The False Tradeoff between Privacy and Security, Professor Daniel Solove explains why and how to achieve this by revealing the fallacies underlying many pro-national security arguments, including the mistaken views about privacy protection and its costs and benefits. This book was published in 2011, but I find it still perfectly applies to today’s world, even though the technologies implicated in the privacy and security debate have advanced significantly. The reason is that the book focuses on the fundamental issues which will not be swayed by the technology evolvement.
I came to this book after reading his another related academic paper I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy (which I also highly recommend despite of content overlaps). Aiming at a broader general audience, the book is written in plain English, explaining where these issues come from with historical context and providing analytical opinions on how these issues should be guided toward a better balance of privacy and security. As a law school graduate who has taken Professor Solove’s privacy law class and been working a lot on privacy issues, I still find this book inspirational, leading me to a deeper understanding of privacy, security, and many other interrelated issues.
Rolling out the extensive US history of the law and policy addressing privacy and security, the book presents a gradually expansive government power and its technological capabilities and how our privacy rights consequently got eroded. I believe many people today still find privacy and national security incompatible with each other at least to some extent. Our awareness on the significance of privacy may get enhanced in the past a few years, but many of us may still think privacy and national security are tradeoff balancing and sometimes, if not most of the time, national security should be prioritized. This is not right and should not be so, said Solove, if we can see through those underlying misunderstandings.
Layer by layer like peeling back an onion, Solove unpacks the false presumptions and takes readers to explore the rich perspectives of privacy. Privacy is multi-dimensional, not merely “a form of secrecy.” Privacy concerns and harms can arise even if the information collected by the government is insensitive that people don’t want to hide. Referring to Kafka’s metaphor in The Trial, Solove points out that the real problem of government surveillance is not the kind of “big brother” watch depicted in Orwell’s 1984, but rather the lack of transparency and accountability which causes “a suffocating powerlessness and vulnerability…and its denial to the protagonist of any knowledge of or participation in the process.”
But that doesn’t mean privacy should outweigh national security. Piercing through the “All-or-Nothing” fallacy, Solove shows us this is not an option between a security measure and nothing, but “between a security measure with oversight and regulation and a security measure at the sole discretion of executive officials.” Thus privacy and national security can get along well with each other. We just need to ensure government officials “do their jobs well and are accountable.”
Accountability is a key point frequently brought up through the whole book. A publicly accountable government is “central to any viable democracy.” We should not let “a nebulous concept” of national security to be used to justify the decrease of the oversight and accountability on government. This is particularly important in times of crisis when “a nation’s true commitments (to the rule of law) are revealed.” In objecting government data mining, Solove lists lack of transparency, which is “essential to promote accountability,” as the major concern because then there will be no meaningful way for the public to “ensure that government officials are not engaging in abuse.”
The last part of this book comes to my favorite topic: how the law should cope with the rapidly evolving technologies. Solove thinks the electronic-surveillance statues in the United States are destined to become outdated because they “were built too closely around existing technology at the time.” The consequence is that the law-enforcement officials “cleverly uses new technologies to avoid triggering strong statutory privacy protections.” What happened in the recently decided Carpenter case is a good example to exemplify this point. Thus, Solove says the right approach should give laws “sufficient breadth and flexibility.” How to do that? The answer is to start with basic principles derived from the Fourth Amendment. Since this is traditionally the job of the judiciary branch, he then urges the courts to play a more active role rather than simply deferring to legislatures in deciding the Fourth Amendment search issues.
Legislatures also have works to do — fill in the details of these principles, and more importantly, rewrite the electronic-surveillance statutes with a new baseline. According to the current statutory approach, an information-collection technique used by the government is presumably allowed unless it is specifically limited by the law. Thus legal gaps can always be found to give government officials unlimited power to use those unregulated technologies. Solove proposes to switch the presumption — the law should presumably regulate all forms of government surveillance with specifically enumerated exceptions allowing a less than probable-cause warrant standard. This approach shifts the burden to government of convincing Congress that a new surveillance way does not threaten privacy, a better mechanism to prevent giving the government too much power on surveillance abuses while the people too little control over the government watchers. “We must ensure that those engaging in surveillance are regulated and accountable.”
There are a lot of other great enlightenment moments during my reading of this book, like why the traditional exclusionary rule under the Fourth Amendment actually brings a lot of ironic consequences and how it should be revised. The easy-read writing style does not shade Professor Solove’s profound insight into this field. I really enjoyed the book and even start to think whether I should propose to translate this into Chinese so that it can be shared with more Chinese readers. As the preface mentions, although this book primarily focuses on American law, the arguments and ideas are universal. I agree.
Ending my first blog post here with a quote from the book: “[Privacy] is often eroded over time, little bits dissolving almost imperceptibly until we finally begin to notice how much is gone.”
