‘I Have Nothing to Hide’ ?????

Why ‘I Have Nothing to Hide’ Is the Wrong Way to Think About Surveillance

• BY MOXIE MARLINSPIKE
• 06.13.13
• 6:30 AM

Suddenly, it feels like 2000 again. Back then, surveillance programs like Carnivore,Echelon, and Total Information Awareness helped spark a surge in electronic privacy awareness. Now a decade later, the recent discovery of programs likePRISM, Boundless Informant, and FISA orders are catalyzing renewed concern.

The programs of the past can be characterized as “proximate” surveillance, in which the government attempted to use technology to directly monitor communication themselves. The programs of this decade mark the transition to “oblique” surveillance, in which the government more often just goes to the places where information has been accumulating on its own, such as email providers, search engines, social networks, and telecoms.

Both then and now, privacy advocates have typically come into conflict with a persistent tension, in which many individuals don’t understand why they should be concerned about surveillance if they have nothing to hide. It’s even less clear in the world of “oblique” surveillance, given that apologists will always frame our use of information-gathering services like a mobile phone plan or GMail as a choice.

We’re All One Big Criminal Conspiracy

As James Duane, a professor at Regent Law School and former defense attorney, notes in his excellent lecture on why it is never a good idea to talk to the police:

Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. These laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies under congressional authorization. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are ”nearly 10,000.”

If the federal government can’t even count how many laws there are, what chance does an individual have of being certain that they are not acting in violation of one of them?

As Supreme Court Justice Breyer elaborates:

The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

For instance, did you know that it is a federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.

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Technology And Law Enforcement

Law enforcement used to be harder. If a law enforcement agency wanted to track someone, it required physically assigning a law enforcement agent to follow that person around. Tracking everybody would be inconceivable, because it would require having as many law enforcement agents as people.

Today things are very different. Almost everyone carries a tracking device (their mobile phone) at all times, which reports their location to a handful of telecoms, which are required by law to provide that information to the government. Tracking everyone is no longer inconceivable, and is in fact happening all the time. We know that Sprint alone responded to 8 million law enforcement requests for real time customer location just in 2008. They got so many requests that they built an automated system to handle them.

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Compromise

Some will say that it’s necessary to balance privacy against security, and that it’s important to find the right compromise between the two. Even if you believe that, a good negotiator doesn’t begin a conversation with someone whose position is at the exact opposite extreme by leading with concessions.

And that’s exactly what we’re dealing with. Not a balance of forces which are looking for the perfect compromise between security and privacy, but an enormous steam roller built out of careers and billions in revenue from surveillance contracts and technology. To negotiate with that, we can’t lead with concessions, but rather with all the opposition we can muster.

http://www.thoughtcrime.org/blog/we-should-all-have-something-to-hide/