Privacy in a Free Society

I participated today in an event held by the Privacy and Civil Liberties Oversight Board (PCLOB) on "Defining Privacy." Each panelist was asked to give a brief 7-minute speech, and I'd like to share my remarks with you. I made 5 points, and was even able to stay within my time:

1. Privacy is much more than hiding bad secrets.

A common argument is that people shouldn’t worry about privacy if they have “nothing to hide.”

This argument – and many other arguments about privacy – are based upon a very narrow understanding of privacy – that privacy is about hiding bad or discreditable secrets.

But privacy is much more than this.

Privacy is not just one thing, but many different things. Privacy involves people’s data being kept secure. It involves the responsible use of people’s data. It involves making sure that data kept about people is accurate. And it involves many other things too.

These things, such as the proper use and storage of data, have nothing to do with hiding secrets.

2. Privacy is a societal interest, not just an individual one.

When balancing privacy against security, the privacy harms are often characterized in terms of injuries to the individual and the interest in security is often characterized is more broad societal way.

Society will generally win when its interests are balanced against those of the individual. Viewing privacy merely in individualistic terms often skews the balance toward the security side.

Privacy has a social value. Even when it protects the individual, it does so for the sake of society. It thus should not be weighed as an individual right against the greater social good. Privacy is an important component of a free and democratic society.

3. The collection of personal data through surveillance and other means can cause significant problems.

Data collection and surveillance are not inherently bad. But just as industrial activity can cause pollution, government collection of personal data can cause problems.

The collection of data can chill First Amendment activities such as speech and exploration of ideas.

Collecting data also gives the government significant power over people. This issue is not about whether the information gathered is something people want to hide, but rather about the power and the structure of government. What kind of accountability will the government have? What limits will there be on how the information is used? How long will the data be kept?

In a free society, people should be free to act without having to justify every action that government officials might view as suspicious.

People shouldn’t have to worry about how what they are doing will appear to some bureaucrat watching from afar.

4. We cannot adequately balance privacy and security without a reasonable amount of transparency.

If there is one overarching principle that this nation is founded upon, it is that We the People are boss. Government officials are our agents.

We can’t evaluate what the government is doing if we don’t know what is going on. That doesn’t mean that there must be absolute transparency, but there must be sufficient transparency for the people to evaluate government surveillance.

Ultimately, the choice about the proper level of surveillance is not the NSA’s to make. It’s not the President’s to make. It is the people’s choice. We cannot forget that.

I will say it again: It is the People’s choice. And the People must be given sufficient information to make that choice.

5. The government must get “buy in” from the people for its surveillance measures.

Without buy in, people will start to take self-help measures. That’s what’s happening now. Companies are providing people with ways to encrypt their data to protect it from snooping government entities.

This is the market speaking. People want this. Why?

Because they have lost trust. Because the laws regulating government surveillance are weak and do not provide for adequate oversight or accountability.

This is why strong privacy protections aren’t a bad thing for security. They ensure that the People are comfortable that there is sufficient oversight and accountability and that the People know sufficient information so they can continually evaluate what is going on.

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Daniel J. Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School, the founder of TeachPrivacy, a privacy/data security training company, and a Senior Policy Advisor at Hogan Lovells. He is a Reporter on the American Law Institute’s Restatement Third, Information Privacy Principles. He is the author of 9 books including Understanding Privacy and more than 50 articles. Follow Professor Solove on Twitter @DanielSolove.

The views here are the personal views of Professor Solove and not those of any organization with which he is affiliated.

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