By Other Means

Privacy Is a Red Herring

The debate over NSA surveillance is about something else entirely.

Alex Wong/Getty Images
Alex Wong/Getty Images

There are curious parallels in the arguments made by those on opposing sides of debates about covert action and NSA surveillance. Both sides deploy the language of secrecy and privacy, but often do so in sloppy and contradictory ways.

Thus, responding to those outraged by recent revelations of mass surveillance, many NSA defenders insist, in effect, that those who have nothing to hide have nothing to fear. Stunned to discover that U.S. intelligence agencies have been "invading your privacy" by monitoring your email, web searches, and telephone records? Calm down: if you’re not doing anything that threatens U.S. national security, no one at the NSA will be interested in you. Conversely, if you’re one of those people determined to cover your online tracks — by using Tor, for example — don’t be shocked if the intelligence community begins to view you with suspicion. Why would you work so hard keep your activities secret from your own government, unless you’re up to no good?

Many critics of covert intelligence agency activities take a remarkably similar line in response to government outrage over the leaking of secret NSA documents. If the NSA isn’t doing anything illegal or immoral — such as invading the privacy of ordinary Americans or allied heads of state — then there’s no need for all the secrecy. Why would the NSA stamp "top secret" on everything — and scream so loudly when classified documents are leaked – if it’s not trying to hide something from the American public? Didn’t Edward Snowden’s leaks demonstrate that the NSA really was hiding unlawful behavior under the cloak of secrecy?

At the same time, both government actors and individuals are quick to demand that their own privacy must be respected. NSA activities inappropriately "violate people’s privacy," says Google’s Eric Schmidt. They constitute an "astonishing invasion of Americans’ privacy," laments the ACLU. Rand Paul agrees: NSA monitoring is an "extraordinary invasion of privacy."

When the U.S. government decries leaks of "classified information," it too is invoking the concept of privacy: secrecy is the privacy of governments. Just like individuals, governments value (and, up to a point, need) the right to be left alone. In order to function, governments sometimes need to operate out of the public eye. Effective diplomats may need to take different approaches with different states. Government employees need to know that they can speak candidly to one another without fear that every conversation will be reported on Twitter.

What a muddle. On the one hand, both individuals and governments insist on the importance of their right to "privacy." At the very same time, both government actors and their critics tend to be suspicious of claims of privacy and secrecy: why would anyone need secrecy if they’re doing nothing wrong?

These contradictory attitudes reflect a persistent and widely shared tendency to use the term "privacy" to cover a variety of quite different (and sometimes contradictory) things. As George Washington University Law School Professor Daniel Solove puts it, privacy is "a concept in disarray. Nobody can articulate what it means." Ask a dozen people to define privacy and you’ll get a dozen different answers: privacy encompasses, notes Solove, "freedom of thought, control over one’s body, solitude in one’s home, control over personal information, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations." (For more on the ambiguity of privacy, see J.M. Berger’s FP article from last week.)

I’d add one more item to Solove’s list of definitions: when people speak of privacy, often what they’re really concerned about is not privacy at all, but very concrete kinds of economic and physical harm: job loss, theft, injury, imprisonment, and even death. That is: when people speak of privacy they’re often speaking — albeit indirectly — about power, and its uses and abuses.

This becomes more evident when we push past the surface of claims about privacy.

It’s impossible, of course, for either individuals or governments to possess total privacy. Our lives and actions are porous. We all know that a great deal of our "personal" information is "out there" and available to anyone willing to put in even a modicum of effort. Our neighbors can peek through our windows; strangers in cafes and on the Metro can listen in on our conversations and telephone calls; our dates can Google us — and that’s nothing compared to the data compiled about us by marketers. For the most part, this doesn’t trouble us — most of us simply accept it as the price of living in human society.

This is true for governments as well. You can put a "top secret" stamp on everything from lunch menus to NSA memos, but people still gossip, leave sensitive papers lying around, and speak indiscreetly to their spouses and friends — and there is always a journalist or spy hanging around who can put together loose scraps of information. What’s more, building strong relationships sometimes requires disclosure of secret information: just as friendships and love relationships are cemented by the sharing of intimate information, governments often find that building relationships with allies, journalists, congressional staffers, and think tanks requires at least some willingness to share "classified" information.

We know all this. Even so, we still bridle when we discover that the universe of people aware of our "private" information has unexpectedly expanded, or that the information we knew to be accessible has in fact been accessed.

It’s one thing to know, in the abstract, that anyone walking by your house can see into your kitchen window, but it’s another thing altogether to look out the kitchen window and discover someone staring fixedly at you. It’s one thing to know that the soccer mom sitting one table over at Starbucks can probably make out the words on your laptop screen; it’s another thing altogether to know that "the government" can do the same thing.

For government officials, it’s one thing to know that NSA surveillance capabilities are, if not fully known, guessed at with substantial accuracy by everyone from journalists to Angela Merkel to al Qaeda operatives; it’s another thing altogether to find classified memos describing those capabilities splashed all over the front page of the Washington Post.

But it’s important to push ourselves to articulate just why individuals and governments are troubled when the circle of those with knowledge about them expands. Put differently, it’s worth asking: when we talk about invasion of privacy, what are we really worried about?

From the government’s perspective, the answer is usually straightforward: governmental privacy – secrecy — isn’t valuable in and of itself. It’s valuable solely because it reduces the risk of certain harms. Secrecy about NSA capabilities reduces the likelihood that terrorists or other adversaries will find ways to evade NSA scrutiny, which increases the likelihood that the United States will be able to learn about potential threats early enough to thwart planned attacks.

On an individual level, many people find it more difficult to articulate why they’re bothered by "invasions of privacy." But when you push hard enough, most people articulate a fear that isn’t about that mushy concept we refer to as "privacy," but is in fact about similarly concrete issues of safety and freedom from harm. The man staring fixedly through our kitchen window bothers us not because we think he might discover us doing something "secret," but because he has violated norms of socially acceptable behavior in a way that makes him unpredictable: if he’s willing to violate norms against staring, what other norms might he also violate? Will he become a stalker, a blackmailer, a burglar, a rapist, a murderer?

At bottom, something similar is true of typical public reactions to NSA surveillance. We may speak of "privacy," but what frightens most of us is not the abstract notion that "the government" might be "watching us"; rather, it is the very concrete possibility that information about us will be misconstrued, misused, or abused. We fear that we’ll end up on a no-fly list, or be unable to get a security clearance, a job, or a loan. We fear being wrongly accused, harassed, detained, and — in the era of targeted killings — who knows what else?

This points to an essential difference between the privacy of governments and the privacy of individuals: governments have far more power than individuals. When the government’s "privacy" is violated — through the unauthorized disclosure of classified documents, for instance — the government can prosecute the leakers, and it can generally fall back on multiple other means to preventing the harms it wants to prevent. The NSA’s Internet and telephone data collection capabilities are not the U.S. government’s sole means of preventing terrorist attacks, for instance: it has many other ways to gather intelligence and other ways to disrupt and defang terrorist organizations.

In contrast, individuals have far less power and far fewer ways to protect themselves. The cards are stacked in favor of the government. This is all the more true in the post-9/11 environment, in which the government has the advantage of permissive laws, deferential courts and congressmen, "black" budgets, and a vast national security bureaucracy that has expanded faster than our collective ability to control it.

I’ve made this point in a previous column, but I’ll make it again here:

The problem [with NSA surveillance practices] is not a privacy problem at all, but an accountability problem… Given the current lack of transparency, we don’t know what rules govern who can see what data, under what circumstances, for what purposes, and with what consequences. We don’t know if this sweeping data collection has led to mistakes or abuses that have harmed innocent people, and we don’t know what recourse an innocent person would have if harmed in some way..

[T]here needs to be a mechanism to remedy [any] damage and impose appropriate consequences on government wrongdoers. If these data collection practices (or any similar past practices) lead to innocent people getting stuck on no-fly lists, or getting harassed by federal agents, or ending up wrongly detained, there should be a prompt, transparent, and fair means for them to challenge their treatment, see the supposed evidence against them, and get the problem fixed.

"Privacy" is a red herring in the debate about NSA surveillance (and many other kinds of covert activities). If we want meaningful reform, we need to set aside the rhetoric of privacy, and focus instead on creating genuine safeguards against the abuse of government power.

Rosa Brooks is a law professor at Georgetown University and a senior fellow with the New America/Arizona State University Future of War Project. She served as a counselor to the U.S. defense undersecretary for policy from 2009 to 2011 and previously served as a senior advisor at the U.S. State Department.

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