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“I’ve Got Nothing to Hide” and Other
Misunderstandings of Privacy
DANIEL J. SOLOVE*
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................. 745
II. THE “NOTHING TO HIDE” ARGUMENT ................................................................ 748
III. CONCEPTUALIZING PRIVACY.............................................................................. 754
A. A Pluralistic Conception of Privacy ........................................................ 754
B. The Social Value of Privacy..................................................................... 760
IV. THE PROBLEM WITH THE “NOTHING TO HIDE” ARGUMENT................................. 764
A. Understanding the Many Dimensions of Privacy..................................... 764
B. Understanding Structural Problems ........................................................ 768
V. CONCLUSION ..................................................................................................... 772
I. INTRODUCTION
Since the September 11 attacks, the government has been engaging in
extensive surveillance and data mining. Regarding surveillance, in
December 2005, the New York Times revealed that after September 11,
the Bush Administration secretly authorized the National Security
Administration (NSA) to engage in warrantless wiretapping of American
citizens’ telephone calls.1
As for data mining, which involves analyzing
* © Daniel J. Solove 2007. Associate Professor, George Washington University
Law School; J.D., Yale Law School. Thanks to Chris Hoofnagle, Adam Moore, and Michael
Sullivan for helpful comments, and to my research assistant Sheerin Shahinpoor. I
develop some of the ideas in this essay in significantly more depth in my forthcoming
book, Understanding Privacy, to be published by Harvard University Press in May 2008.
1. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts:
Secret Order to Widen Domestic Monitoring, N.Y. TIMES, Dec. 16, 2005, at A1.
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personal data for patterns of suspicious behavior, the government has
begun numerous programs. In 2002, the media revealed that the Department
of Defense was constructing a data mining project, called “Total Information
Awareness” (TIA), under the leadership of Admiral John Poindexter.2
The vision for TIA was to gather a variety of information about people,
including financial, educational, health, and other data. The information
would then be analyzed for suspicious behavior patterns. According to
Poindexter: “The only way to detect . . . terrorists is to look for patterns
of activity that are based on observations from past terrorist attacks as
well as estimates about how terrorists will adapt to our measures to
avoid detection.”3
When the program came to light, a public outcry
erupted, and the U.S. Senate subsequently voted to deny the program
funding, ultimately leading to its demise.4
Nevertheless, many components
of TIA continue on in various government agencies, though in a less
systematic and more clandestine fashion.5
In May 2006, USA Today broke the story that the NSA had obtained
customer records from several major phone companies and was analyzing
them to identify potential terrorists.6
The telephone call database is reported
to be the “largest database ever assembled in the world.”7
In June 2006,
the New York Times stated that the U.S. government had been accessing
bank records from the Society for Worldwide Interbank Financial
Transactions (SWIFT), which handles financial transactions for thousands of
banks around the world.8
Many people responded with outrage at these
announcements, but many others did not perceive much of a problem.
The reason for their lack of concern, they explained, was because: “I’ve
got nothing to hide.”9
The argument that no privacy problem exists if a person has nothing to
hide is frequently made in connection with many privacy issues. When
the government engages in surveillance, many people believe that there
is no threat to privacy unless the government uncovers unlawful activity,
in which case a person has no legitimate justification to claim that it
2. John Markoff, Pentagon Plans a Computer System That Would Peek at
Personal Data of Americans, N.Y. TIMES, Nov. 9, 2002, at A12.
3. John M. Poindexter, Finding the Face of Terror in Data, N.Y. TIMES, Sept. 10,
2003, at A25.
4. DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE
INFORMATION AGE 169 (2004).
5. Shane Harris, TIA Lives On, NAT’L J., Feb. 25, 2006, at 66.
6. Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA
TODAY, May 11, 2006, at A1; Susan Page, Lawmakers: NSA Database Incomplete, USA
TODAY, June 30, 2006, at A1.
7. Cauley, supra note 6, at A1.
8. Eric Lichtblau & James Risen, Bank Data Sifted in Secret by U.S. to Block
Terror, N.Y. TIMES, June 23, 2006, at A1.
9. See infra text accompanying notes 12–33.
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remain private. Thus, if an individual engages only in legal activity, she
has nothing to worry about. When it comes to the government collecting
and analyzing personal information, many people contend that a privacy
harm exists only if skeletons in the closet are revealed. For example,
suppose the government examines one’s telephone records and finds out
that a person made calls to her parents, a friend in Canada, a video store,
and a pizza delivery place. “So what?,” that person might say. “I’m not
embarrassed or humiliated by this information. If anybody asks me, I’ll
gladly tell them where I shop. I have nothing to hide.”
The “nothing to hide” argument and its variants are quite prevalent in
popular discourse about privacy. Data security expert Bruce Schneier
calls it the “most common retort against privacy advocates.”10
Legal
scholar Geoffrey Stone refers to it as “all-too-common refrain.”11
The
nothing to hide argument is one of the primary arguments made when
balancing privacy against security. In its most compelling form, it is an
argument that the privacy interest is generally minimal to trivial, thus
making the balance against security concerns a foreordained victory for
security. Sometimes the nothing to hide argument is posed as a question:
“If you have nothing to hide, then what do you have to fear?” Others
ask: “If you aren’t doing anything wrong, then what do you have to
hide?”
In this essay, I will explore the nothing to hide argument and its
variants in more depth. Grappling with the nothing to hide argument
is important, because the argument reflects the sentiments of a wide
percentage of the population. In popular discourse, the nothing to hide
argument’s superficial incantations can readily be refuted. But when the
argument is made in its strongest form, it is far more formidable.
In order to respond to the nothing to hide argument, it is imperative that
we have a theory about what privacy is and why it is valuable. At its core,
the nothing to hide argument emerges from a conception of privacy and its
value. What exactly is “privacy”? How valuable is privacy and how do
we assess its value? How do we weigh privacy against countervailing
values? These questions have long plagued those seeking to develop a
theory of privacy and justifications for its legal protection.
10. Bruce Schneier, Commentary, The Eternal Value of Privacy, WIRED, May 18,
2006, http://www.wired.com/news/columns/1,70886-0.html.
11. Geoffrey R. Stone, Commentary, Freedom and Public Responsibility, CHI.
TRIB., May 21, 2006, at 11.
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This essay begins in Part II by discussing the nothing to hide argument.
First, I introduce the argument as it often exists in popular discourse and
examine frequent ways of responding to the argument. Second, I present
the argument in what I believe to be its strongest form. In Part III, I briefly
discuss my work thus far on conceptualizing privacy. I explain why
existing theories of privacy have been unsatisfactory, have led to confusion,
and have impeded the development of effective legal and policy responses
to privacy problems. In Part IV, I argue that the nothing to hide argument—
even in its strongest form—stems from certain faulty assumptions about
privacy and its value. The problem, in short, is not with finding an answer
to the question: “If you’ve got nothing to hide, then what do you have to
fear?” The problem is in the very question itself.
II. THE “NOTHING TO HIDE” ARGUMENT
When discussing whether government surveillance and data mining
pose a threat to privacy, many people respond that they have nothing to
hide. This argument permeates the popular discourse about privacy and
security issues. In Britain, for example, the government has installed
millions of public surveillance cameras in cities and towns, which are
watched by officials via closed circuit television.12
In a campaign slogan
for the program, the government declares: “If you’ve got nothing to
hide, you’ve got nothing to fear.”13
In the United States, one anonymous
individual from the Department of Justice comments: “If [government
officials] need to read my e-mails . . . so be it. I have nothing to hide.
Do you?”14
One blogger, in reference to profiling people for national
security purposes, declares: “Go ahead and profile me, I have nothing to
hide.”15
Another blogger proclaims: “So I don’t mind people wanting to
find out things about me, I’ve got nothing to hide! Which is why I
support President Bush’s efforts to find terrorists by monitoring our
phone calls!”16
Variations of nothing to hide arguments frequently appear
in blogs, letters to the editor, television news interviews, and other forums.
Some examples include:
12. JEFFREY ROSEN, THE NAKED CROWD: RECLAIMING SECURITY AND FREEDOM IN
AN ANXIOUS AGE (2004).
13. Id. at 36.
14. Comment of NonCryBaby to http://www.securityfocus.com/comments/articles/
2296/18105/threaded (Feb. 12, 2003).
15. Comment of Yoven to http://www.danielpipes.org/comments/47675 (June 14,
2006, 14:03 EST).
16. Reach For The Stars!, http://greatcarrieoakey.blogspot.com/2006/05/look-allyou-want-ive-got-nothing-to.html
(May 14, 2006, 09:04 PST).
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• I don’t have anything to hide from the government. I don’t
think I had that much hidden from the government in the first
place. I don’t think they care if I talk about my ornery
neighbor.17
• Do I care if the FBI monitors my phone calls? I have nothing
to hide. Neither does 99.99 percent of the population. If the
wiretapping stops one of these Sept. 11 incidents, thousands
of lives are saved.18
• Like I said, I have nothing to hide. The majority of the American
people have nothing to hide. And those that have something
to hide should be found out, and get what they have coming
to them.19
The argument is not only of recent vintage. For example, one of the
characters in Henry James’s 1888 novel, The Reverberator, muses:
“[I]f these people had done bad things they ought to be ashamed of
themselves and he couldn’t pity them, and if they hadn’t done them there
was no need of making such a rumpus about other people knowing.”20
I encountered the nothing to hide argument so frequently in news
interviews, discussions, and the like, that I decided to blog about the
issue. I asked the readers of my blog, Concurring Opinions, whether
there are good responses to the nothing to hide argument.21
I received a
torrent of comments to my post:
• My response is “So do you have curtains?” or “Can I see your
credit card bills for the last year?”22
• So my response to the “If you have nothing to hide . . .”
argument is simply, “I don’t need to justify my position. You
need to justify yours. Come back with a warrant.”23
17. Comment of annegb to Concurring Opinions, http://www.concurringopinions.
com/archives/2006/05/is_there_a_good.html#comments (May 23, 2006, 11:37 EST).
18. Joe Schneider, Letter to the Editor, NSA Wiretaps Necessary, ST. PAUL
PIONEER PRESS, Aug. 24, 2006, at 11B.
19. Polls Suggest Americans Approve NSA Monitoring (NPR radio broadcast, May
19, 2006), available at 2006 WLNR 22949347.
20. HENRY JAMES, THE REVERBERATOR (1888), reprinted in NOVELS 1886–1880, at
555, 687 (1989).
21. Concurring Opinions, supra note 17 (May 23, 2006, 00:06 EST).
22. Comment of Adam to Concurring Opinions, supra note 17 (May 23, 2006,
16:27 EST).
23. Comment of Dissent to Concurring Opinions, supra note 17 (May 24, 2006,
07:48 EST).
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• I don’t have anything to hide. But I don’t have anything I feel
like showing you, either.24
• If you have nothing to hide, then you don’t have a life.25
• Show me yours and I’ll show you mine.26
• It’s not about having anything to hide, it’s about things not
being anyone else’s business.27
• Bottom line, Joe Stalin would [have] loved it. Why should
anyone have to say more?28
Most replies to the nothing to hide argument quickly respond with a
witty retort. Indeed, on the surface it seems easy to dismiss the nothing
to hide argument. Everybody probably has something to hide from
somebody. As the author Aleksandr Solzhenitsyn declared, “Everyone
is guilty of something or has something to conceal. All one has to do is
look hard enough to find what it is.”29
Likewise, in Friedrich Dürrenmatt’s
novella Traps, which involves a seemingly innocent man put on trial by
a group of retired lawyers for a mock trial game, the man inquires
what his crime shall be. “‘An altogether minor matter,’ the prosecutor
replied . . . . ‘A crime can always be found.’”30
One can usually think of
something compelling that even the most open person would want to
hide. As one comment to my blog post noted: “If you have nothing to
hide, then that quite literally means you are willing to let me photograph
you naked? And I get full rights to that photograph—so I can show it to
your neighbors?”31
Canadian privacy expert David Flaherty expresses a
similar idea when he argues:
24. Comment of Ian to Concurring Opinions, supra note 17 (May 24, 2006, 19:51
EST).
25. Comment of Matthew Graybosch to Concurring Opinions, supra note 17 (Oct.
16, 2006, 12:09 EST).
26. Comment of Neureaux to Concurring Opinions, supra note 17 (Oct. 16, 2006,
14:39 EST).
27. Comment of Catter to Concurring Opinions, supra note 17 (Oct. 16, 2006,
11:36 PM EST).
28. Comment of Kevin to Concurring Opinions, supra note 17 (July 24, 2006,
12:36 EST).
29. ALEKSANDR SOLZHENITSYN, CANCER WARD 192 (Nicholas Bethell & David
Burg trans., Noonday Press 1991) (1968).
30. FRIEDRICH DÜRRENMATT, TRAPS 23 (Richard & Clara Winston trans., 1960).
31. Comment of Andrew to Concurring Opinions, supra note 17 (Oct. 16, 2006,
15:06 EST).
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There is no sentient human being in the Western world who has little or no
regard for his or her personal privacy; those who would attempt such claims
cannot withstand even a few minutes’ questioning about intimate aspects of
their lives without capitulating to the intrusiveness of certain subject matters.32
Such responses only attack the nothing to hide argument in its most
extreme form, which is not particularly strong. As merely a one-line
utterance about a particular person’s preference, the nothing to hide
argument is not very compelling. But stated in a more sophisticated
manner, the argument is more challenging. First, it must be broadened
beyond the particular person making it. When phrased as an individual
preference, the nothing to hide argument is hard to refute because it is
difficult to quarrel with one particular person’s preferences. As one
commenter aptly notes:
By saying “I have nothing to hide,” you are saying that it’s OK for the
government to infringe on the rights of potentially millions of your fellow
Americans, possibly ruining their lives in the process. To me, the “I have
nothing to hide” argument basically equates to “I don’t care what happens, so
long as it doesn’t happen to me.”33
In its more compelling variants, the nothing to hide argument can be
made in a more general manner. Instead of contending that “I’ve got
nothing to hide,” the argument can be recast as positing that all lawabiding
citizens should have nothing to hide. Only if people desire to
conceal unlawful activity should they be concerned, but according to the
nothing to hide argument, people engaged in illegal conduct have no
legitimate claim to maintaining the privacy of such activities.
In a related argument, Judge Richard Posner contends: “[W]hen
people today decry lack of privacy, what they want, I think, is mainly
something quite different from seclusion: they want more power to
conceal information about themselves that others might use to their
disadvantage.”34
Privacy involves a person’s “right to conceal discreditable
facts about himself.”35
In other words, privacy is likely to be invoked
when there is something to hide and that something consists of negative
32. David H. Flaherty, Visions of Privacy: Past, Present, and Future, in VISIONS
OF PRIVACY: POLICY CHOICES FOR THE DIGITAL AGE 19, 31 (Colin J. Bennett & Rebecca
Grant eds., 1999).
33. Comment of BJ Horn to Concurring Opinions, supra note 17 (June 2, 2006,
18:58 EST).
34. RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 271 (1983).
35. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 46 (5th ed. 1998).
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information about a person. Posner asserts that the law should not protect
people in concealing discreditable information. “The economist,” he argues,
“sees a parallel to the efforts of sellers to conceal defects in their
products.”36
Of course, one might object, there is nondiscreditable information
about people that they nevertheless want to conceal because they find it
embarrassing or just do not want others to know about. In a less extreme
form, the nothing to hide argument does not refer to all personal
information, but only to that subset of personal information that is likely
to be involved in government surveillance. When people respond to
NSA surveillance and data mining that they have nothing to hide, the
more sophisticated way of understanding their argument should be as
applying to the particular pieces of information that are gathered in the
NSA programs. Information about what phone numbers people dial and
even what they say in many conversations is often not likely to be
embarrassing or discreditable to a law-abiding citizen. Retorts to the
nothing to hide argument about exposing people’s naked bodies to the
world or revealing their deepest secrets to their friends are only relevant
if there is a likelihood that such programs will actually result in these
kinds of disclosures. This type of information is not likely to be captured in
the government surveillance. Even if it were, many people might rationally
assume that the information will be exposed only to a few law enforcement
officials, and perhaps not even seen by human eyes. Computers might
store the data and analyze it for patterns, but no person might have any
contact with the data. As Posner argues:
The collection, mainly through electronic means, of vast amounts of personal
data is said to invade privacy. But machine collection and processing of data
cannot, as such, invade privacy. Because of their volume, the data are first
sifted by computers, which search for names, addresses, phone numbers, etc.,
that may have intelligence value. This initial sifting, far from invading privacy
(a computer is not a sentient being), keeps most private data from being read by
any intelligence officer.37
There is one final component of the most compelling versions of the
nothing to hide argument—a comparison of the relative value of the
privacy interest being threatened with the government interest in
promoting security. As one commenter to my blog post astutely notes:
“You can’t talk about how people feel about the potential loss of privacy
in any meaningful way without recognizing that most of the people who
don’t mind the NSA programs see it as a potential exchange of a small
36. Id.
37. Richard A. Posner, Our Domestic Intelligence Crisis, WASH. POST, Dec. 21,
2005, at A31.
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amount of privacy for a potential national security gain.”38
In other
words, the nothing to hide argument can be made by comparing the
relative value between privacy and security. The value of privacy, the
argument provides, is low, because the information is often not particularly
sensitive. The ones with the most to worry about are the ones engaged
in illegal conduct, and the value of protecting their privacy is low to
nonexistent. On the government interest side of the balance, security has
a very high value. Having a computer analyze the phone numbers one
dials is not likely to expose deep dark secrets or embarrassing
information to the world. The machine will simply move on, oblivious
to any patterns that are not deemed suspicious. In other words, if you
are not doing anything wrong, you have nothing to hide and nothing to
fear.
Therefore, in a more compelling form than is often expressed in
popular discourse, the nothing to hide argument proceeds as follows:
The NSA surveillance, data mining, or other government informationgathering
programs will result in the disclosure of particular pieces of
information to a few government officials, or perhaps only to government
computers. This very limited disclosure of the particular information
involved is not likely to be threatening to the privacy of law-abiding
citizens. Only those who are engaged in illegal activities have a reason
to hide this information. Although there may be some cases in which the
information might be sensitive or embarrassing to law-abiding citizens,
the limited disclosure lessens the threat to privacy. Moreover, the security
interest in detecting, investigating, and preventing terrorist attacks is
very high and outweighs whatever minimal or moderate privacy interests
law-abiding citizens may have in these particular pieces of information.
Cast in this manner, the nothing to hide argument is a formidable one.
It balances the degree to which an individual’s privacy is compromised
by the limited disclosure of certain information against potent national
security interests. Under such a balancing scheme, it is quite difficult for
privacy to prevail.
38. Comment of MJ to Concurring Opinions, supra note 17 (May 23, 2006, 17:30
EST).
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III. CONCEPTUALIZING PRIVACY
For quite some time, scholars have proclaimed that privacy is so
muddled a concept that it is of little use. According to Arthur Miller,
privacy is “exasperatingly vague and evanescent.”39
As Hyman
Gross declares, “[T]he concept of privacy is infected with pernicious
ambiguities.”40
Colin Bennett similarly notes, “Attempts to define the
concept of ‘privacy’ have generally not met with any success.”41
Robert
Post declares that “[p]rivacy is a value so complex, so entangled in
competing and contradictory dimensions, so engorged with various and
distinct meanings, that I sometimes despair whether it can be usefully
addressed at all.”42
“Perhaps the most striking thing about the right to
privacy,” Judith Jarvis Thomson observes, “is that nobody seems to have
any very clear idea what it is.”43
Often, the philosophical discourse about conceptualizing privacy is
ignored in legal and policy debates. Many jurists, politicians, and scholars
simply analyze the issues without articulating a conception of what
privacy means. However, conceptualizing privacy is essential for the
analysis of these issues. Those working on legal and policy issues all
have some implicit conception of privacy. In many cases, privacy issues
never get balanced against conflicting interests because courts, legislators,
and others fail even to recognize that privacy is implicated. It is therefore of
paramount importance that we continue to work on developing a conception
of privacy. But how? Why have existing attempts been so unsatisfying?
A. A Pluralistic Conception of Privacy
Many attempts to conceptualize privacy do so by attempting to locate
the essence of privacy—its core characteristics or the common denominator
that links together the various things we classify under the rubric of
“privacy.” I refer to this as the traditional method of conceptualizing.
This method seeks to understand privacy per genus et differentiam—by
looking for necessary and sufficient elements that demarcate what
privacy is.
39. ARTHUR R. MILLER, THE ASSAULT ON PRIVACY: COMPUTERS, DATA BANKS,
AND DOSSIERS 25 (1971).
40. Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. REV. 34, 35 (1967).
41. COLIN J. BENNETT, REGULATING PRIVACY: DATA PROTECTION AND PUBLIC
POLICY IN EUROPE AND THE UNITED STATES 25 (1992).
42. Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2087 (2001).
43. Judith Jarvis Thomson, The Right to Privacy, in PHILOSOPHICAL DIMENSIONS
OF PRIVACY: AN ANTHOLOGY 272, 272 (Ferdinand David Schoeman ed., 1984).
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In my article, Conceptualizing Privacy, I discussed a wide range of
attempts to locate the common denominator of privacy.44
I examined
several different candidates for the common denominator in the existing
philosophical and legal literature. Some attempts to conceptualize
privacy were too narrow, excluding things we commonly understand to
be private. For example, several theorists have contended that privacy
should be defined in terms of intimacy. According to philosopher Julie
Inness: “[T]he content of privacy cannot be captured if we focus
exclusively on either information, access, or intimate decisions because
privacy involves all three areas. . . . I suggest that these apparently disparate
areas are linked by the common denominator of intimacy—privacy’s
content covers intimate information, access, and decisions.”45
The
problem with understanding privacy as intimacy, however, is that not all
private information or decisions we make are intimate. For instance, our
Social Security number, political affiliations, religious beliefs, and much
more may not be intimate, but we may regard them as private. Of
course, intimacy could be defined quite broadly, though then it merely
becomes a synonym for privacy rather than an elaboration of what
privacy means. The purpose of defining privacy as intimacy is to
develop a bounded and coherent conception of privacy, but it comes at
the cost of being far too narrow.
On the other hand, some attempts to conceptualize privacy are far too
broad, such as Samuel Warren and Louis Brandeis’s understanding of
privacy as the “right to be let alone.”46
What exactly does being let
alone entail? There are many ways in which people are intruded upon
that they would not consider privacy violations. If you shove me, you
are not leaving me alone. You may be harming me, but it is not a
problem of privacy.
Ultimately, any attempt to locate a common core to the manifold
things we file under the rubric of “privacy” faces a difficult dilemma. If
one chooses a common denominator that is broad enough to encompass
nearly everything, then the conception risks the danger of being overinclusive
or too vague. If one chooses a narrower common denominator, then the
risk is that the conception is too restrictive. In Conceptualizing Privacy,
44. Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1095–99
(2002).
45. JULIE C. INNESS, PRIVACY, INTIMACY, AND ISOLATION 56 (1992).
46. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L.
REV. 193, 193 (1890).
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I surveyed the various proposed conceptions and found all to suffer from
these problems.47
I argued that instead of conceptualizing privacy with the traditional
method, we should instead understand privacy as a set of family
resemblances. In Philosophical Investigations, Ludwig Wittgenstein
argued that some concepts do not have “one thing in common” but “are
related to one another in many different ways.”48
Instead of being
related by a common denominator, some things share “a complicated
network of similarities overlapping and criss-crossing: sometimes overall
similarities, sometimes similarities of detail.”49
In other words, privacy
is not reducible to a singular essence; it is a plurality of different things
that do not share one element in common but that nevertheless bear a
resemblance to each other.
In my work on conceptualizing privacy thus far, I have attempted to
lay the groundwork for a pluralistic understanding of privacy. In some
works, I have attempted to analyze specific privacy issues, trying to
better articulate the nature of the problems. For example, in my book,
The Digital Person, I argued that the collection and use of personal
information in databases presents a different set of problems than government
surveillance.50
Many commentators had been using the metaphor of
George Orwell’s 1984 to describe the problems created by the collection
and use of personal data.51
I contended that the Orwell metaphor, which
focuses on the harms of surveillance (such as inhibition and social
control) might be apt to describe law enforcement’s monitoring of citizens.
But much of the data gathered in computer databases is not particularly
sensitive, such as one’s race, birth date, gender, address, or marital
status. Many people do not care about concealing the hotels they stay at,
the cars they own or rent, or the kind of beverages they drink. People
often do not take many steps to keep such information secret. Frequently,
though not always, people’s activities would not be inhibited if others
knew this information.
I suggested a different metaphor to capture the problems: Franz
Kafka’s The Trial, which depicts a bureaucracy with inscrutable purposes
that uses people’s information to make important decisions about them,
yet denies the people the ability to participate in how their information is
47. Solove, supra note 44, at 1099–1124.
48. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 65 (G.E.M. Anscombe
trans., 3d ed. 2001).
49. Id. § 66.
50. SOLOVE, supra note 4, at 6–9.
51. GEORGE ORWELL, 1984 (Signet Classic 1984) (1949); SOLOVE, supra note 4,
at 7.
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used.52
The problems captured by the Kafka metaphor are of a different
sort than the problems caused by surveillance. They often do not result
in inhibition or chilling. Instead, they are problems of information
processing—the storage, use, or analysis of data—rather than information
collection. They affect the power relationships between people and the
institutions of the modern state. They not only frustrate the individual
by creating a sense of helplessness and powerlessness, but they also
affect social structure by altering the kind of relationships people have
with the institutions that make important decisions about their lives.
I explored the ways that legal and policy solutions were focusing too
much on the nexus of problems under the Orwell metaphor—those of
surveillance—and were not adequately addressing the Kafka problems—
those of information processing.53
The difficulty was that commentators
were trying to conceive of the problems caused by databases in terms of
surveillance when, in fact, these problems were different. The way that
these problems are conceived has a tremendous impact on the legal and
policy solutions used to solve them. As John Dewey observed, “[A]
problem well put is half-solved.”54
“The way in which the problem is
conceived,” Dewey explained, “decides what specific suggestions are
entertained and which are dismissed; what data are selected and which
rejected; it is the criterion for relevancy and irrelevancy of hypotheses
and conceptual structures.”55
In a subsequent article, A Taxonomy of Privacy, I developed a
taxonomy of privacy—a way of mapping out the manifold types of
problems and harms that constitute privacy violations.56
The taxonomy
is my attempt to formulate a model of the problems from studying the
welter of laws, cases, issues, and cultural and historical materials. The
taxonomy I developed is as follows:
52. FRANZ KAFKA, THE TRIAL 50–58 (Willa & Edwin Muir trans., Random House
1956) (1937); SOLOVE, supra note 4, at 8–9.
53. SOLOVE, supra note 4, at 27–75.
54. JOHN DEWEY, LOGIC: THE THEORY OF INQUIRY 112 (Jo Ann Boydston ed.
1991) (1938).
55. Id.
56. Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477 (2006).
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Information Collection
Surveillance
Interrogation
Information Processing
Aggregation
Identification
Insecurity
Secondary Use
Exclusion
Information Dissemination
Breach of Confidentiality
Disclosure
Exposure
Increased Accessibility
Blackmail
Appropriation
Distortion
Invasion
Intrusion
Decisional Interference
The taxonomy has four general categories of privacy problems with
sixteen different subcategories. The first general category is information
collection, which involves the ways that data is gathered about people.
The subcategories, surveillance and interrogation, represent the two
primary problematic ways of gathering information. A privacy problem
occurs when an activity by a person, business, or government entity
creates harm by disrupting valuable activities of others. These harms
need not be physical or emotional; they can occur by chilling socially
beneficial behavior (for example, free speech and association) or by
leading to power imbalances that adversely affect social structure (for
example, excessive executive power).
The second general category is information processing. This involves
the storing, analysis, and manipulation of data. There are a number of
problems that information processing can cause, and I included five
subcategories in my taxonomy. For example, one problem that I label
insecurity results in increasing people’s vulnerability to potential abuse of
their information.57
The problem that I call exclusion involves people’s
inability to access and have any say in the way their data is used.58
57. Id. at 516–20.
58. Id. at 522–25.
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Information dissemination is the third general category. Disseminating
information involves the ways in which it is transferred—or threatened to be
transferred—to others. I identify seven different information dissemination
problems. Finally, the last category involves invasions. Invasions are direct
interferences with the individual, such as intruding into her life or regulating
the kinds of decisions she can make about her life.
My purpose in advancing the taxonomy is to shift away from the
rather vague label of privacy in order to prevent distinct harms and
problems from being conflated or not recognized. Some might contend,
however, that several of the problems I discuss are not really “privacy”
problems. But with no satisfactory set of necessary or sufficient conditions
to define privacy, there is no one specific criterion for inclusion or
exclusion under the rubric of “privacy.” Privacy violations consist of a
web of related problems that are not connected by a common element,
but nevertheless bear some resemblances to each other. We can determine
whether to classify something as falling in the domain of privacy if it
bears resemblance to other things we similarly classify. In other words,
we use a form of analogical reasoning in which “[t]he key task,” Cass
Sunstein observes, “is to decide when there are relevant similarities and
differences.”59
Accordingly, there are no clear boundaries for what we
should or should not refer to as “privacy.” Some might object to the lack of
clear boundaries, but this objection assumes that having definitive
boundaries matters. The quest for a traditional definition of privacy has
led to a rather fruitless and unresolved debate. In the meantime, there are
real problems that must be addressed, but they are either conflated or
ignored because they do not fit into various prefabricated conceptions of
privacy. The law often neglects to see the problems and instead ignores
all things that do not fall into a particular conception of privacy. In this
way, conceptions of privacy can prevent the examination of problems. The
problems still exist regardless of whether we classify them as being
“privacy” problems.
A great deal of attention is expended trying to elucidate the concept of
privacy without looking at the problems we are facing. My goal is to
begin with the problems and understand them in detail. Trying to fit
them into a one-size-fits-all conception of privacy neglects to see the
problems in their full dimensions or to understand them completely.
59. CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 67 (1996).
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Conceptions should help us understand and illuminate experience; they
should not detract from experience and make us see and understand less.
The term privacy is best used as a shorthand umbrella term for a
related web of things. Beyond this kind of use, the term privacy has
little purpose. In fact, it can obfuscate more than clarify.
Some might object to the inclusion or exclusion of certain problems in
the taxonomy. I do not advance the taxonomy as perfect. It is a bottomup
ongoing project. As new problems arise, the taxonomy will be revised.
Whether a particular problem is classified as one of privacy is not as
important as whether it is recognized as a problem. Regardless of whether
we label the problem as part of the privacy cluster, it still is a problem,
and protecting against it still has a value. For example, I classify as a privacy
violation a problem I call distortion, which involves disseminating false or
misleading information about a person. Some might argue that distortion
really is not a privacy harm, because privacy only involves true information.
But does it matter? Regardless of whether distortion is classified as a
privacy problem, it is nevertheless a problem. Classifying it as a privacy
problem is merely saying that it bears some resemblance to other privacy
problems, and viewing them together might be helpful in addressing them.
B. The Social Value of Privacy
Many theories of privacy view it as an individual right. For example,
Thomas Emerson declares that privacy “is based upon premises of
individualism, that the society exists to promote the worth and the
dignity of the individual. . . . The right of privacy . . . is essentially the right
not to participate in the collective life—the right to shut out the
community.”60
In the words of one court: “Privacy is inherently personal.
The right to privacy recognizes the sovereignty of the individual.”61
Traditionally, rights have often been understood as protecting the
individual against the incursion of the community, based on respect for
the individual’s personhood or autonomy. Many theories of privacy’s
value understand privacy in this manner. For example, Charles Fried
argues that privacy is one of the
basic rights in persons, rights to which all are entitled equally, by virtue of their
status as persons. . . . In this sense, the view is Kantian; it requires recognition
of persons as ends, and forbids the overriding of their most fundamental
interests for the purpose of maximizing the happiness or welfare of all.62
60. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 545, 549 (1970).
61. Smith v. City of Artesia, 772 P.2d 373, 376 (N.M. Ct. App. 1989).
62. Charles Fried, Privacy, 77 YALE L.J. 475, 478 (1968); see also INNESS, supra
note 45, at 95 (“[P]rivacy is valuable because it acknowledges our respect for persons as
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Many of the interests that conflict with privacy, however, also involve
people’s autonomy and dignity. Free speech, for example, is also an
individual right which is essential to autonomy. Yet, in several cases, it
clashes with privacy. One’s privacy can be in direct conflict with
another’s desire to speak about that person’s life. Security, too, is not
merely a societal interest; it is essential for individual autonomy as well.
Autonomy and dignity are often on both sides of the balance, so it
becomes difficult to know which side is the one that protects the
“sovereignty of the individual.”63
Communitarian scholars launch a formidable critique of traditional
accounts of individual rights. Amitai Etzioni, for example, contends that
privacy is “a societal license that exempts a category of acts (including
thoughts and emotions) from communal, public, and governmental
scrutiny.”64
For Etzioni, many theories of privacy treat it as sacrosanct,
even when it conflicts with the common good.65
According to Etzioni,
“privacy is not an absolute value and does not trump all other rights or
concerns for the common good.”66
He goes on to demonstrate how
privacy interferes with greater social interests and often, though not
always, contends that privacy should lose out in the balance.67
Etzioni is right to critique those who argue that privacy is an individual
right that should trump social interests. The problem, however, is that
utilitarian balancing between individual rights and the common good
rarely favors individual rights—unless the interest advanced on the side
of the common good is trivial. Society will generally win when its
interests are balanced against those of the individual.
The deeper problem with Etzioni’s view is that in his critique of
liberal theories of individual rights as absolutes, he views individual
rights as being in tension with society. The same dichotomy between
autonomous beings with the capacity to love, care and like—in other words, persons
with the potential to freely develop close relationships.”); BEATE RÖSSLER, THE VALUE
OF PRIVACY 117 (R.D.V. Glasgow trans., Polity Press 2005) (2001) (“Respect for a
person’s privacy is respect for her as an autonomous subject.”); Stanley I. Benn, Privacy,
Freedom, and Respect for Persons, in NOMOS XIII: PRIVACY 1, 26 (J. Roland Pennock &
John W. Chapman eds., 1971) (“[R]espect for someone as a person, as a chooser,
implie[s] respect for him as one engaged on a kind of self-creative enterprise, which
could be disrupted, distorted, or frustrated even by so limited an intrusion as watching.”).
63. Smith, 772 P.2d at 376.
64. AMITAI ETZIONI, THE LIMITS OF PRIVACY 196 (1999).
65. Id. at 187–88.
66. Id. at 38.
67. Id. at 187–88.
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individual and society that pervades liberal theories of individual rights
also pervades Etzioni’s communitarianism. Etzioni views the task of
communitarians as “balanc[ing] individual rights with social responsibilities,
and individuality with community.”68
The problem with Etzioni’s
communitarian view is that individuality need not be on the opposite
side of the scale from community. Such a view assumes that individual
and societal interests are distinct and conflicting. A similar view also
underpins many liberal conceptions of individual rights.
In contrast, John Dewey proposed an alternative theory about the
relationship between individual and community. For Dewey, there is no
strict dichotomy between individual and society. The individual is
shaped by society, and the good of both the individual and society are
often interrelated rather than antagonistic: “We cannot think of ourselves
save as to some extent social beings. Hence we cannot separate the idea
of ourselves and our own good from our idea of others and of their
good.”69
Dewey contended that the value of protecting individual rights
emerges from their contribution to society. In other words, individual
rights are not trumps, but are protections by society from its intrusiveness.
Society makes space for the individual because of the social benefits this
space provides. Therefore, Dewey argues, rights should be valued based
on “the contribution they make to the welfare of the community.”70
Otherwise, in any kind of utilitarian calculus, individual rights would not
be valuable enough to outweigh most social interests, and it would be
impossible to justify individual rights. As such, Dewey argued, we must
insist upon a “social basis and social justification” for civil liberties.71
I contend, like Dewey, that the value of protecting the individual is a
social one. Society involves a great deal of friction, and we are
constantly clashing with each other. 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. A society without privacy protection
would be suffocating, and it might not be a place in which most would
want to live. When protecting individual rights, we as a society decide
to hold back in order to receive the benefits of creating the kinds of free
zones for individuals to flourish.
As Robert Post has argued, privacy is not merely a set of restraints on
society’s rules and norms. Instead, privacy constitutes a society’s
68. Id. at 198.
69. JOHN DEWEY, ETHICS (1908), reprinted in 5 THE MIDDLE WORKS: 1899–1924,
at 268 (Jo Ann Boydston ed., S. Ill. Univ. Press 1978).
70. JOHN DEWEY, LIBERALISM AND CIVIL LIBERTIES (1936), reprinted in 11 THE
LATER WORKS, 1935–1937, at 373 (Jo Ann Boydston ed., S. Ill. Univ. Press 1987).
71. Id. at 375.
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attempt to promote rules of behavior, decorum, and civility.72
Society
protects privacy as a means of enforcing a kind of order in the
community. As Spiros Simitis declares, “[P]rivacy considerations no longer
arise out of particular individual problems; rather, they express conflicts
affecting everyone.”73
Several scholars have argued that privacy is
“constitutive” of society and must be valued in terms of the social roles
it plays.74
Privacy, then, is not the trumpeting of the individual against
society’s interests, but the protection of the individual based on society’s
own norms and values. Privacy is not simply a way to extricate
individuals from social control, as it is itself a form of social control that
emerges from a society’s norms. It is not an external restraint on society,
but is in fact an internal dimension of society. Therefore, 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 issues involve balancing societal interests
on both sides of the scale.
Because privacy involves protecting against a plurality of different
harms or problems, the value of privacy is different depending upon
which particular problem or harm is being protected. Not all privacy
problems are equal; some are more harmful than others. Therefore, we
cannot ascribe an abstract value to privacy. Its value will differ substantially
depending upon the kind of problem or harm we are safeguarding
against. Thus, to understand privacy, we must conceptualize it and its
value more pluralistically. Privacy is a set of protections against a
related set of problems. These problems are not all related in the same
way, but they resemble each other. There is a social value in protecting
72. Robert C. Post, The Social Foundations of Privacy: Community and Self in the
Common Law Tort, 77 CAL. L. REV. 957, 968 (1989).
73. Spiros Simitis, Reviewing Privacy in an Information Society, 135 U. PA. L.
REV. 707, 709 (1987). In analyzing the problems of federal legislative policymaking on
privacy, Priscilla Regan demonstrates the need for understanding privacy in terms of its
social benefits. See PRISCILLA M. REGAN, LEGISLATING PRIVACY, at xiv (1995) (“[A]nalysis
of congressional policy making reveals that little attention was given to the possibility of
a broader social importance of privacy.”).
74. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as
Object, 52 STAN. L. REV. 1373, 1427–28 (2000) (“Informational privacy, in short, is a
constitutive element of a civil society in the broadest sense of that term.”); Paul M.
Schwartz, Privacy and Democracy in Cyberspace, 52 VAND. L. REV. 1609, 1613 (1999)
(“[I]nformation privacy is best conceived of as a constitutive element of civil society.”);
see also Ruth Gavison, Privacy and the Limits of Law, 89 YALE L.J. 421, 455 (1980)
(“Privacy is also essential to democratic government because it fosters and encourages
the moral autonomy of the citizen, a central requirement of a democracy.”).
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against each problem, and that value differs depending upon the nature
of each problem.
IV. THE PROBLEM WITH THE “NOTHING TO HIDE” ARGUMENT
A. Understanding the Many Dimensions of Privacy
It is time to return to the nothing to hide argument. The reasoning of
this argument is that when it comes to government surveillance or use of
personal data, there is no privacy violation if a person has nothing
sensitive, embarrassing, or illegal to conceal. Criminals involved in illicit
activities have something to fear, but for the vast majority of people,
their activities are not illegal or embarrassing.
Understanding privacy as I have set forth reveals the flaw of the
nothing to hide argument at its roots. Many commentators who respond
to the argument attempt a direct refutation by trying to point to things
that people would want to hide. But the problem with the nothing to
hide argument is the underlying assumption that privacy is about hiding
bad things. Agreeing with this assumption concedes far too much ground
and leads to an unproductive discussion of information people would
likely want or not want to hide. As Bruce Schneier aptly notes, the nothing
to hide argument stems from a faulty “premise that privacy is about
hiding a wrong.”75
The deeper problem with the nothing to hide argument is that it
myopically views privacy as a form of concealment or secrecy. But
understanding privacy as a plurality of related problems demonstrates
that concealment of bad things is just one among many problems caused
by government programs such as the NSA surveillance and data mining.
In the categories in my taxonomy, several problems are implicated.
The NSA programs involve problems of information collection,
specifically the category of surveillance in the taxonomy. Wiretapping
involves audio surveillance of people’s conversations. Data mining
often begins with the collection of personal information, usually from
various third parties that possess people’s data. Under current Supreme
Court Fourth Amendment jurisprudence, when the government gathers
data from third parties, there is no Fourth Amendment protection because
people lack a “reasonable expectation of privacy” in information exposed
to others.76
In United States v. Miller, the Supreme Court concluded that
there is no reasonable expectation of privacy in bank records because
“[a]ll of the documents obtained, including financial statements and
75. Schneier, supra note 10.
76. United States v. Katz, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring).
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deposit slips, contain only information voluntarily conveyed to the banks
and exposed to their employees in the ordinary course of business.”77
In
Smith v. Maryland, the Supreme Court held that people lack a reasonable
expectation of privacy in the phone numbers they dial because they
“know that they must convey numerical information to the phone
company,” and therefore they cannot “harbor any general expectation that
the numbers they dial will remain secret.”78
As I have argued extensively
elsewhere, the lack of Fourth Amendment protection of third party
records results in the government’s ability to access an extensive amount
of personal information with minimal limitation or oversight.79
Many scholars have referred to information collection as a form of
surveillance. Dataveillance, a term coined by Roger Clarke, refers to the
“systemic use of personal data systems in the investigation or monitoring
of the actions or communications of one or more persons.”80
Christopher
Slobogin has referred to the gathering of personal information in
business records as “transaction surveillance.”81 Surveillance can create
chilling effects on free speech, free association, and other First Amendment
rights essential for democracy.82
Even surveillance of legal activities can
inhibit people from engaging in them. The value of protecting against
chilling effects is not measured simply by focusing on the particular
individuals who are deterred from exercising their rights. Chilling
effects 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.
The nothing to hide argument focuses primarily on the information
collection problems associated with the NSA programs. It contends that
limited surveillance of lawful activity will not chill behavior sufficiently
to outweigh the security benefits. One can certainly quarrel with this
77. 425 U.S. 435, 442 (1976).
78. 442 U.S. 735, 743 (1979).
79. SOLOVE, supra note 4, at 165–209; see also Daniel J. Solove, Digital Dossiers
and the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1117–37
(2002).
80. Roger Clarke, Information Technology and Dataveillance, 31 COMM. OF THE
ACM 498, 499 (1988); see also Roger Clarke, Introduction to Dataveillance and
Information Privacy, and Definitions of Terms, AUSTRALIAN NATIONAL UNIVERSITY,
Aug. 7, 2006, http://www.anu.edu.au/people/Roger.Clarke/DV/Intro.html.
81. Christopher Slobogin, Transaction Surveillance by the Government, 75 MISS.
L.J. 139, 140 (2005).
82. Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L.
REV. 112, 154–59 (2007).
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argument, but one of the difficulties with chilling effects is that it is
often very hard to demonstrate concrete evidence of deterred behavior.83
Whether the NSA’s surveillance and collection of telephone records has
deterred people from communicating particular ideas would be a difficult
question to answer.
Far too often, discussions of the NSA surveillance and data mining
define the problem solely in terms of surveillance. To return to my
discussion of metaphor, the problems are not just Orwellian, but
Kafkaesque. The NSA programs are problematic even if no information
people want to hide is uncovered. In The Trial, the problem is not inhibited
behavior, but rather a suffocating powerlessness and vulnerability created
by the court system’s use of personal data and its exclusion of the
protagonist from having any knowledge or participation in the process.
The harms consist of those created by bureaucracies—indifference, errors,
abuses, frustration, and lack of transparency and accountability. One
such harm, for example, which I call aggregation, emerges from the
combination of small bits of seemingly innocuous data.84
When combined,
the information becomes much more telling about a person. For the
person who truly has nothing to hide, aggregation is not much of a
problem. But in the stronger, less absolutist form of the nothing to hide
argument, people argue that certain pieces of information are not something
they would hide. Aggregation, however, means that by combining
pieces of information we might not care to conceal, the government can
glean information about us that we might really want to conceal. Part of
the allure of data mining for the government is its ability to reveal a lot
about our personalities and activities by sophisticated means of
analyzing data. Therefore, without greater transparency in data mining,
it is hard to claim that programs like the NSA data mining program will
not reveal information people might want to hide, as we do not know
precisely what is revealed. Moreover, data mining aims to be predictive
of behavior, striving to prognosticate about our future actions. People
who match certain profiles are deemed likely to engage in a similar
pattern of behavior. It is quite difficult to refute actions that one has not
yet done. Having nothing to hide will not always dispel predictions of
future activity.
Another problem in the taxonomy, which is implicated by the NSA
program, is the problem I refer to as exclusion.85
Exclusion is the
problem caused when people are prevented from having knowledge
about how their information is being used, as well as barred from being
83. Id.
84. Solove, supra note 56, at 506–11.
85. Id. at 522–25.
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able to access and correct errors in that data. The NSA program involves a
massive database of information that individuals cannot access. Indeed,
the very existence of the program was kept secret for years.86
This kind
of information processing, which forbids people’s knowledge or
involvement, resembles in some ways a kind of due process problem. It
is a structural problem involving the way people are treated by government
institutions. Moreover, it creates a power imbalance between individuals
and the government. To what extent should the Executive Branch and
an agency such as the NSA, which is relatively insulated from the
political process and public accountability, have a significant power over
citizens? 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.
A related problem involves “secondary use.” Secondary use is the use
of data obtained for one purpose for a different unrelated purpose
without the person’s consent. The Administration has 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.
Therefore, the problem with the nothing to hide argument is that it
focuses on just one or two particular kinds of privacy problems—the
disclosure of personal information or surveillance—and not others. It
assumes a particular view about what privacy entails, and it sets the
terms for debate in a manner that is often unproductive.
It is important to distinguish here between two ways of justifying a
program such as the NSA surveillance and data mining program. The
first way is to not recognize a problem. This is how the nothing to hide
argument works—it denies even the existence of a problem. The second
manner of justifying such a program is to acknowledge the problems but
contend that the benefits of the NSA program outweigh the privacy
harms. The first justification influences the second, because the low
value given to privacy is based upon a narrow view of the problem.
The key misunderstanding is that the nothing to hide argument views
privacy in a particular way—as a form of secrecy, as the right to hide
86. Risen & Lichtblau, supra note 1.
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things. But there are many other types of harm involved beyond exposing
one’s secrets to the government.
Privacy problems are often difficult to recognize and redress because
they create a panoply of types of harm. Courts, legislators, and others
look for particular types of harm to the exclusion of others, and their
narrow focus blinds them to seeing other kinds of harms.
B. Understanding Structural Problems
One of the difficulties with the nothing to hide argument is that it
looks for a visceral kind of injury as opposed to a structural one.
Ironically, this underlying conception of injury is shared by both those
advocating for greater privacy protections and those arguing in favor of
the conflicting interests to privacy. For example, law professor Ann
Bartow argues that I have failed to describe privacy harms in a compelling
manner in my article, A Taxonomy of Privacy, where I provide a
framework for understanding the manifold different privacy problems.87
Bartow’s primary complaint is that my taxonomy “frames privacy harms
in dry, analytical terms that fail to sufficiently identify and animate the
compelling ways that privacy violations can negatively impact the lives
of living, breathing human beings beyond simply provoking feelings of
unease.”88
Bartow claims that the taxonomy does not have “enough
dead bodies” and that privacy’s “lack of blood and death, or at least of
broken bones and buckets of money, distances privacy harms from other
categories of tort law.”89
Most privacy problems lack dead bodies. Of course, there are
exceptional cases such as the murders of Rebecca Shaeffer and Amy
Boyer. Rebecca Shaeffer was an actress killed when a stalker obtained her
address from a Department of Motor Vehicles record.90
This incident
prompted Congress to pass the Driver’s Privacy Protection Act of
1994.91
Amy Boyer was murdered by a stalker who obtained her
personal information, including her work address and Social Security
number, from a database company.92
These examples aside, there is not
a lot of death and gore in privacy law. If this is the standard to recognize
a problem, then few privacy problems will be recognized. Horrific cases
87. Ann Bartow, A Feeling of Unease About Privacy Law, 155 U. PA. L. REV.
PENNumbra 52, 52 (2006), http://www.pennumbra.com/issues/articles/154-3/Bartow.pdf.
88. Id.
89. Id. at 52, 62.
90. SOLOVE, supra note 4, at 147.
91. Id.
92. Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1005–06 (N.H. 2003).
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are not typical, and the purpose of my taxonomy is to explain why most
privacy problems are still harmful despite this fact.
Bartow’s objection is actually very similar to the nothing to hide
argument. Those advancing the nothing to hide argument have in mind
a particular kind of visceral privacy harm, one where privacy is violated
only when something deeply embarrassing or discrediting is revealed.
Bartow’s quest for horror stories represents a similar desire to find
visceral privacy harms. The problem is that not all privacy harms are
like this. At the end of the day, privacy is not a horror movie, and
demanding more palpable harms will be difficult in many cases. Yet
there is still a harm worth addressing, even if it is not sensationalistic.
In many instances, privacy is threatened not by singular egregious
acts, but by a slow series of relatively minor acts which gradually begin
to add up. In this way, privacy problems resemble certain environmental
harms which occur over time through a series of small acts by different
actors. Bartow wants to point to a major spill, but gradual pollution by a
multitude of different actors often creates worse problems.
The law frequently struggles with recognizing harms that do not result
in embarrassment, humiliation, or physical or psychological injury.93
For example, after the September 11 attacks, several airlines gave their
passenger records to federal agencies in direct violation of their privacy
policies. The federal agencies used the data to study airline security.94
A group of passengers sued Northwest Airlines for disclosing their
personal information. One of their claims was that Northwest Airlines
breached its contract with the passengers. In Dyer v. Northwest Airlines
Corp., the court rejected the contract claim because “broad statements of
company policy do not generally give rise to contract claims,” the
passengers never claimed they relied upon the policy or even read it, and
they “failed to allege any contractual damages arising out of the alleged
breach.”95
Another court reached a similar conclusion.96
Regardless of the merits of the decisions on contract law, the cases
represent a difficulty with the legal system in addressing privacy problems.
93. SOLOVE, supra note 4, at 93–97, 100–01, 195–208; Daniel J. Solove, Identity
Theft, Privacy, and the Architecture of Vulnerability, 54 HASTINGS L.J. 1227, 1228
(2003).
94. SOLOVE, supra note 4, at 93.
95. 334 F. Supp. 2d 1196, 1200 (D.N.D. 2004).
96. In re Nw. Airlines Privacy Litig., No. 04-126, 2004 WL 1278459 (D. Minn.
June 6, 2004).
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The disclosure of the passenger records represented a “breach of
confidentiality.”97
The problems caused by breaches of confidentiality do not
merely consist of individual emotional distress; they involve a violation
of trust within a relationship. There is a strong social value in ensuring
that promises are kept and that trust is maintained in relationships between
businesses and their customers. The problem of secondary use is also
implicated in this case.98
Secondary use involves data collected for one
purpose being used for an unrelated purpose without people’s consent.
The airlines gave passenger information to the government for an
entirely different purpose beyond that for which it was originally gathered.
Secondary use problems often do not cause financial, or even
psychological, injuries. Instead, the harm is one of power imbalance.
In Dyer, data was disseminated in a way that ignored airline passengers’
interests in the data despite promises made in the privacy policy. Even if
the passengers were unaware of the policy, there is a social value in
ensuring that companies adhere to established limits on the way they use
personal information. Otherwise, any stated limits become meaningless,
and companies have discretion to boundlessly use data. Such a state of
affairs can leave nearly all consumers in a powerless position. The
harm, then, is less one to particular individuals than it is a structural
harm.
A similar problem surfaces in another case, Smith v. Chase Manhattan
Bank.99
A group of plaintiffs sued Chase Manhattan Bank for selling
customer information to third parties in violation of its privacy policy,
which stated that the information would remain confidential. The court
held that even presuming these allegations were true, the plaintiffs could
not prove any actual injury:
[T]he “harm” at the heart of this purported class action, is that class members
were merely offered products and services which they were free to decline.
This does not qualify as actual harm.
The complaint does not allege any single instance where a named plaintiff or
any class member suffered any actual harm due to the receipt of an unwanted
telephone solicitation or a piece of junk mail.100
The court’s view of harm, however, did not account for the breach of
confidentiality.
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 in a more broad societal way. The security
97. Solove, supra note 56, at 526–30.
98. Id. at 520–22.
99. 741 N.Y.S.2d 100 (N.Y. App. Div. 2002).
100. Id. at 102.
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interest in the NSA programs has often been defined improperly. In a
Congressional hearing, Attorney General Alberto Gonzales stated:
Our enemy is listening, and I cannot help but wonder if they are not shaking
their heads in amazement at the thought that anyone would imperil such a
sensitive program by leaking its existence in the first place, and smiling at the
prospect that we might now disclose even more or perhaps even unilaterally
disarm ourselves of a key tool in the war on terror.101
The balance between privacy and security is often cast in terms of
whether a particular government information collection activity should
or should not be barred.
The issue, however, often is not whether the NSA or other government
agencies should be allowed to engage in particular forms of information
gathering; rather, it is what kinds of oversight and accountability we
want in place when the government engages in searches and seizures.
The government can employ nearly any kind of investigatory activity
with a warrant supported by probable cause. This is a mechanism of
oversight—it forces government officials to justify their suspicions to a
neutral judge or magistrate before engaging in the tactic. For example,
electronic surveillance law allows for wiretapping, but limits the practice
with judicial supervision, procedures to minimize the breadth of the
wiretapping, and requirements that the law enforcement officials report
back to the court to prevent abuses.102
It is these procedures that the
Bush Administration has ignored by engaging in the warrantless NSA
surveillance. The question is not whether we want the government to
monitor such conversations, but whether the Executive Branch should
adhere to the appropriate oversight procedures that Congress has enacted
into law, or should covertly ignore any oversight.
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
101. Wartime Executive Power and the National Security Agency’s Surveillance
Authority: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 15 (2006)
(statement of Alberto Gonzales, Att’y Gen. of the United States).
102. Daniel J. Solove, Fourth Amendment Codification and Professor Kerr’s
Misguided Call for Judicial Deference, 74 FORDHAM L. REV. 747, 775–76 (2005).
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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. When the argument is unpacked, and its
underlying assumptions examined and challenged, we can see how it
shifts the debate to its terms, in which it draws power from its unfair
advantage. It is time to pull the curtain on the nothing to hide argument.
V. CONCLUSION
Whether explicit or not, conceptions of privacy underpin nearly every
argument made about privacy, even the common quip “I’ve got nothing
to hide.” As I have sought to demonstrate in this essay, understanding
privacy as a pluralistic conception reveals that we are often talking past
each other when discussing privacy issues. By focusing more specifically
on the related problems under the rubric of “privacy,” we can better
address each problem rather than ignore or conflate them. The nothing
to hide argument speaks to some problems, but not to others. It represents a
singular and narrow way of conceiving of privacy, and it wins by excluding
consideration of the other problems often raised in government surveillance
and data mining programs. When engaged with directly, the nothing to
hide argument can ensnare, for it forces the debate to focus on its narrow
understanding of privacy. But when confronted with the plurality of
privacy problems implicated by government data collection and use
beyond surveillance and disclosure, the nothing to hide argument, in the
end, has nothing to say.