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In June independent blogger Daniel Sieradski started a Twitter feed called “Nothing to Hide,” through which he retweeted hundreds of people declaring in one form or another that they are not concerned about government spying because their hands are clean. If a tactic helps the feds fight terrorists, these people argued, civil liberties can take a back seat.
But there are many reasons to be concerned about the rise of the surveillance state even if you have nothing to hide—or rather, even if you think you have nothing to hide. For those tempted to trade liberty for the promise of security, here are three counterarguments.
1. Every American is probably a criminal.
As civil libertarian Harvey Silverglate wrote in his 2009 book Three Felonies a Day: How the Feds Target the Innocent, the federal criminal code has grown so thick during the last several decades that Americans probably don’t even know how often they violate it. Did that summer camp pay the performing license to show your kids that DVD of Cloudy with a Chance of Meatballs? Ever copy a song to your computer hard drive? Did you declare all out-of-state purchases on your taxes? Did you displace any protected species when you landscaped your backyard? It’s harder to actually follow many federal and state laws than to break them.
Individuals can wind up ensnared in the federal justice system for seemingly innocuous activities, or at least actions that don’t obviously call for a federal response. Former Tribune Co. web producer Matthew Keys is facing federal hacking and conspiracy charges and possibly prison time because he gave his old work password to a member of the hacker group Anonymous, which used it to change a headline at the website of the Los Angeles Times. Why did this prank draw the eyes of the feds? The vaguely worded Computer Fraud and Abuse Act, introduced in 1986 but amended many times, makes things like vio- lating a website’s terms of service a possible felony, treated similarly to hacking regardless of whether real harms occurred.
Given the digital focus of the Prism program, everybody should be concerned about what crimes we don’t even know we’re committing—crimes federal prosecutors could try to prove with access to our phone and online metadata, basic information accessible without a federal warrant.
2. The federal government has abused its surveillance powers before.
In 1975 Sen. Frank Church (D-Idaho) put together a committee, which would eventually come to be known as the Church Committee, to investigate illegal activities by the federal government’s intelligence agencies. The committee’s headline-making revelations included spying on activists, opening and reading private mail, and deploying the Internal Revenue Service as a weapon. Sound familiar?
Defenders of Prism say it only targets foreigners. But under current rules a great deal of information about Americans can be collected “incidentally.” In any case, rules can always be changed.
Furthermore, we have no way of knowing that official descriptions of the program are accurate, because oversight has been hidden from public view. We do know, thanks to Sen. Ron Wyden (D-Ore.), that in 2011 the Foreign Intelligence Surveillance Court deemed at least some aspects of the NSA’s snooping unconstitutional, but the Justice Department is trying to block the release of that secret decision.
So we know the NSA has broken the law once, but we don’t know what it did, what harm resulted, whether there was any sort of punishment or discipline, or what’s preventing more such abuses. This is not oversight you can trust.
3. Government is made of people, and people can be creepy, petty, incompetent, and dangerous.
Gilberto Valle had an unusual sexual fetish. He fantasized about kidnapping, killing, and eating young women.
Valle was also a member of the New York Police Department. He was convicted in March of plotting to make his fantasies a reality. Whether he really meant to do so is debatable; his defense was that his cannibalistic musings were all sexual role-playing. But Valle also was convicted of looking up his potential targets in a national crime database, which he was able to use due to his position of authority.
Even as the Obama administration was arguing that NSA surveillance is subject to sufficient oversight, it was blaming the Internal Revenue Service’s targeting of conservative political nonprofits for additional evaluation on rogue employees and poor management. You don’t have to be a privacy purist to be concerned about bad or dangerous people obtaining sensitive information about you. Some of them work for the government, and they may be interested in you for reasons that have nothing to do with politics. Even if you think you have nothing to hide.