Since 9-11, political commentators have been discussing the relationship between privacy and security. Should the government be given greater ability to intrude into our private lives, in order to keep us safer? And, alarmingly in my view, more than a few of these pundits cheerfully proclaim their willingness to trade away privacy for security.
Their facile position is that the nation should make the trade-off, less privacy for more security. They say that, if you are not a criminal or terrorist, you should have nothing to hide. And if it will save lives, isn’t it worth giving up some privacy? People today put all kinds of private things on the internet for everyone to see. Why not let the government intrude a little more into our lives, if it will stop a terrorist from killing people? And the government does not make that information public. They only use it to find terrorists. That is their argument. They present the trade-off as a small loss of privacy, for a substantial increase in safety.
I have an interesting rebuttal to that position, I thought I’d share here. First, the loss of privacy is not small. Second, the increase in safety is quite limited. Third, the loss of privacy leads to another more substantial trade-off, false positives — people falsely accused of crimes.
Technology and money have made our government very powerful, much more so than in past generations. The NSA can spy on millions of Americans, using technology. Before the advent of the internet and related technology, to spy on someone was time-consuming. You needed actual persons to listen to a conversation, using wire-tapping. You could not possibly spy on millions of persons, because you would need millions of employees to do so. But now, an automated system can listen to phone conversations and process the audio into text, and then scan the text for keywords. Privacy can be violated to a much greater extent than was ever possible before.
Without privacy laws, the government can know far more about each American’s life than was ever possible in past generations. And then that information can be misused.
Government overreach is a related issue. Having more power, means that government agencies can easily extend their authority under the law, by specious interpretations of vaguely worded laws. The EPA is sometimes guilty of this type of overreach. About a year ago: “The New York Times revealed the agency colluded with environmentalist groups in a campaign to manufacture public comments in favor of a new rule that expands its own power.” [TheHill.com]
Another example of overreach is law enforcement abuse of the asset forfeiture laws: ACLU: Asset Forfeiture. Money and other assets are taken from American citizens, who are subsequently never accused of a crime or given their day in court. And recovering the confiscated assets is a time-consuming and difficult process, which often fails.
Take away what we have left of our privacy in this country, in the name of security, and these types of problems will only get worse.
A man self-radicalizes, and then decides to commit a terrorist act. There is simply no way to trade away privacy to find this type of terrorist. People have free will. Unfortunately, some people use their free will to commit violent acts against the innocent. The idea that if we all give up a small amount of privacy, we can find people who are planning, in their minds, to commit a terrorist acts, is absurd.
Even if we trade-away all our privacy to the government in order to find potential terrorists, the attempt will fail to a great extent. Proof is found in the fact that, in some cases of terrorist, the FBI had previously been looking at the perpetrator, and yet the person was not arrested and the act of terrorism or other violent crime was not prevented.
We will not be much more safe, if we trade privacy for security. But there is another aspect to this trade-off that everyone is ignoring: false positives.
When looking for criminals, a false negative is a determination that a person is not a criminal, when he really is, and a false positive is a determination that a person is a criminal, when he is not. Loss of privacy will result in a vast increase in false positives, people charged with serious crimes who otherwise would not have been charged. How can this be?
Consider the book, Three Felonies a Day, which proposes that the average, seemingly law-abiding American commits an average of three felonies a day.
“modern federal criminal laws … have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior.”
If federal investigators and prosecutors can intrude into any law-abiding American’s life, because privacy has been traded away for security, they will find or claim to have found many violations of federal laws — even though the activities in question are not “crimes” in the common sense of the word.
Will we be more secure if we give up privacy for security? No. We will be less secure because many Americans will end up being falsely accused of crimes. More harm will result, not less. We will be less secure, not more secure. So the concept of trading privacy for security is false. We will instead be trading away freedom and becoming less secure in the process.