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    Friday, June 23, 2006

    Essay: The Value of Privacy

    Last month, revelation of yet another NSA surveillance effort against
    the American people rekindled the privacy debate. Those in favor of
    these programs have trotted out the same rhetorical question we hear
    every time privacy advocates oppose ID checks, video cameras, massive
    databases, data mining, and other wholesale surveillance measures: "If
    you aren't doing anything wrong, what do you have to hide?"

    Some clever answers: "If I'm not doing anything wrong, then you have no
    cause to watch me." "Because the government gets to define what's
    wrong, and they keep changing the definition." "Because you might do
    something wrong with my information." My problem with quips like these
    -- as right as they are -- is that they accept the premise that privacy
    is about hiding a wrong. It's not. Privacy is an inherent human right,
    and a requirement for maintaining the human condition with dignity and

    Two proverbs say it best: "Quis custodiet ipsos custodes?" ("Who
    watches the watchers?") and "Absolute power corrupts absolutely."

    Cardinal Richelieu understood the value of surveillance when he
    famously said, "If one would give me six lines written by the hand of
    the most honest man, I would find something in them to have him
    hanged." Watch someone long enough, and you'll find something to arrest
    -- or just blackmail -- him with. Privacy is important because without
    it, surveillance information will be abused: to peep, to sell to
    marketers, and to spy on political enemies -- whoever they happen to be
    at the time.

    Privacy protects us from abuses by those in power, even if we're doing
    nothing wrong at the time of surveillance.

    We do nothing wrong when we make love or go to the bathroom. We are not
    deliberately hiding anything when we seek out private places for
    reflection or conversation. We keep private journals, sing in the
    privacy of the shower, and write letters to secret lovers and then burn
    them. Privacy is a basic human need.

    A future in which privacy would face constant assault was so alien to
    the framers of the Constitution that it never occurred to them to call
    out privacy as an explicit right. Privacy was inherent to the nobility
    of their being and their cause. Of course being watched in your own
    home was unreasonable. Watching at all was an act so unseemly as to be
    inconceivable among gentlemen in their day. You watched convicted
    criminals, not free citizens. You ruled your own home. It's intrinsic
    to the concept of liberty.

    For if we are observed in all matters, we are constantly under threat
    of correction, judgment, criticism, even plagiarism of our own
    uniqueness. We become children, fettered under watchful eyes,
    constantly fearful that -- either now or in the uncertain future --
    patterns we leave behind will be brought back to implicate us, by
    whatever authority has now become focused upon our once-private and
    innocent acts. We lose our individuality, because everything we do is
    observable and recordable.

    How many of us have paused during conversations in the past
    four-and-a-half years, suddenly aware that we might be eavesdropped on?
    Probably it was a phone conversation, although maybe it was an e-mail
    or instant message exchange or a conversation in a public place. Maybe
    the topic was terrorism, or politics, or Islam. We stop suddenly,
    momentarily afraid that our words might be taken out of context, then
    we laugh at our paranoia and go on. But our demeanor has changed, and
    our words are subtly altered.

    This is the loss of freedom we face when our privacy is taken from us.
    This was life in the former East Germany, or life in Saddam Hussein's
    Iraq. And it's our future as we allow an ever-intrusive eye into our
    personal, private lives.

    Too many wrongly characterize the debate as "security versus privacy."
    The real choice is liberty versus control. Tyranny, whether it arises
    under threat of foreign physical attack or under constant domestic
    authoritative scrutiny, is still tyranny. Liberty requires security
    without intrusion, security plus privacy. Widespread police
    surveillance is the very definition of a police state. And that's why
    we should champion privacy even when we have nothing to hide.

    A version of this essay originally appeared on Wired.com.

    Daniel Solove comments:
    or http://tinyurl.com/nmj3u

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