Pundits may complain that American politics is hopelessly polarized, but last week’s frenzied reauthorization of three controversial Patriot Act surveillance tools reminds us that no party has a monopoly on fearmongering. Though these three tools remain infrequently used (one has never been invoked), and though all three would have remained available for most investigations under a broad grandfather clause, Democratic Party leaders in the Senate maintained that even a temporary lapse would gravely imperil national security.
Just weeks earlier, we learned that President Obama, who during his presidential campaign thundered that there would be “no more national security letters” targeting the sensitive records of innocent Americans without judicial oversight, had in fact broken the record for spying on Americans with national security letters, with more than 14,000 citizens and permanent residents affected in 2010. In all likelihood, none of this would have been more than a faint blip on the radar of the American political press had Sen. Rand Paul not done his best to obstruct reauthorization of the expiring Patriot Act provisions. Paul, to his great credit, forced Sen. Harry Reid to make good on a promise to permit debate on substantive reforms to the ever-expanding surveillance powers that have been granted to the government over the course of the war on terror.
In this environment, a book like privacy scholar Daniel Solove’s “Nothing to Hide” is sorely needed. In language aimed squarely at a general audience, Solove, a renowned legal theorist, catalogs — and punctures — the litany of bad arguments that have persuaded so many Americans to abandon privacy in the name of greater security.
Perhaps chief among these is the notion that the innocent — those with “nothing to hide” — have correspondingly little to fear from government surveillance. As Solove observes, this claim stems from an anemic conception of privacy, unfortunately embraced by the courts over the past several decades, that sees the exposure of secret wrongdoing as the sole “harm” of the spread of state monitoring into every part of modern life. Solove encourages us to take a broader view: to think of privacy not simply as an individual right, but as an important precondition of free and democratic societies, akin to (and importantly linked with) freedom of speech.
Solove also bemoans the poverty of our contemporary debates over the “balance” between privacy and security. Pollsters and pundits, he observes, take a confused “all or nothing” approach to national security surveillance, asking whether government investigators should be able to wiretap suspected terrorists or obtain their bank records, when the real question is what standards and safeguards should apply when they do.
Solove similarly exhorts the courts to abandon their extreme deference to the executive branch when it comes to evaluating the effectiveness of surveillance measures, many of which amount to little more than “security theater,” designed to create the impression that something is being done without seriously lowering the risk of an attack. Blinded by the enormous importance of “national security” as an abstract goal, he warns, citizens and judges alike often fail to notice that particular security measures may demand great sacrifices of privacy for speculative, and often chimerical, gains in security.
If there is a flaw in “Nothing to Hide,” it is that Solove’s determination to make the book accessible may render it thin gruel for those seeking the depth and rigor that have won him acclaim as a legal scholar.
A chapter examining George W. Bush’s broad assertions of wartime executive authority to conduct surveillance rests largely on a commonsensical assertion: that in a war on terror with no clear end date, it amounts to unfettered discretion to conduct domestic surveillance when the words “national security” are uttered. But we get no hint of the deep historical perspective that backs up such a view. One must turn instead to the work of Martin Lederman and David Barron, whose impressive scholarly paper, “The Commander in Chief at Lowest Ebb,” shows that the American tradition has long managed to square the exigencies of war with substantial congressional oversight of the executive.
Because Solove’s main argument is primarily conceptual, he also omits powerful empirical evidence that would support his arguments. The Bush-era program of extralegal warrantless wiretapping, to name one example, was touted as an invaluable security tool whose exposure by the press risked American lives. Yet as the Washington Post has reported, of the hundreds (perhaps thousands) of people whose international communications were eavesdropped upon each year under the program, fewer than 10 annually proved suspicious enough to justify warrants seeking access to all their communications — and a subsequent joint audit by the inspectors general of several American intelligence agencies found few concrete successes that were definitively attributable to the program.
In places, this leads Solove to make claims that are arguably misleading. In one chapter, he makes a persuasive case that excessive focus on the Patriot Act obscures how thoroughly decades of misguided legal decisions have already eroded the Fourth Amendment, leaving modern digital communications with minimal protections. As evidence, he alludes to the sweeping power of national security letters — which do indeed predate the Patriot Act. He fails to note, however, that prior to the Patriot Act and its successors, these letters were an incredibly narrow and limited tool, bearing about as much resemblance to the current version as a tabby does to a tiger.
These defects aside, “Nothing to Hide” is a potent and sobering tonic that provides an invaluable antidote to the sort of panicked rhetoric that makes privacy and civil liberties into antiquated relics at best, handmaidens of al Qaeda at worst. Here’s hoping legislators crack a copy soon — before citizens literally have nothing left to hide.
Just weeks earlier, we learned that President Obama, who during his presidential campaign thundered that there would be “no more national security letters” targeting the sensitive records of innocent Americans without judicial oversight, had in fact broken the record for spying on Americans with national security letters, with more than 14,000 citizens and permanent residents affected in 2010. In all likelihood, none of this would have been more than a faint blip on the radar of the American political press had Sen. Rand Paul not done his best to obstruct reauthorization of the expiring Patriot Act provisions. Paul, to his great credit, forced Sen. Harry Reid to make good on a promise to permit debate on substantive reforms to the ever-expanding surveillance powers that have been granted to the government over the course of the war on terror.
In this environment, a book like privacy scholar Daniel Solove’s “Nothing to Hide” is sorely needed. In language aimed squarely at a general audience, Solove, a renowned legal theorist, catalogs — and punctures — the litany of bad arguments that have persuaded so many Americans to abandon privacy in the name of greater security.
Perhaps chief among these is the notion that the innocent — those with “nothing to hide” — have correspondingly little to fear from government surveillance. As Solove observes, this claim stems from an anemic conception of privacy, unfortunately embraced by the courts over the past several decades, that sees the exposure of secret wrongdoing as the sole “harm” of the spread of state monitoring into every part of modern life. Solove encourages us to take a broader view: to think of privacy not simply as an individual right, but as an important precondition of free and democratic societies, akin to (and importantly linked with) freedom of speech.
Solove also bemoans the poverty of our contemporary debates over the “balance” between privacy and security. Pollsters and pundits, he observes, take a confused “all or nothing” approach to national security surveillance, asking whether government investigators should be able to wiretap suspected terrorists or obtain their bank records, when the real question is what standards and safeguards should apply when they do.
Solove similarly exhorts the courts to abandon their extreme deference to the executive branch when it comes to evaluating the effectiveness of surveillance measures, many of which amount to little more than “security theater,” designed to create the impression that something is being done without seriously lowering the risk of an attack. Blinded by the enormous importance of “national security” as an abstract goal, he warns, citizens and judges alike often fail to notice that particular security measures may demand great sacrifices of privacy for speculative, and often chimerical, gains in security.
If there is a flaw in “Nothing to Hide,” it is that Solove’s determination to make the book accessible may render it thin gruel for those seeking the depth and rigor that have won him acclaim as a legal scholar.
A chapter examining George W. Bush’s broad assertions of wartime executive authority to conduct surveillance rests largely on a commonsensical assertion: that in a war on terror with no clear end date, it amounts to unfettered discretion to conduct domestic surveillance when the words “national security” are uttered. But we get no hint of the deep historical perspective that backs up such a view. One must turn instead to the work of Martin Lederman and David Barron, whose impressive scholarly paper, “The Commander in Chief at Lowest Ebb,” shows that the American tradition has long managed to square the exigencies of war with substantial congressional oversight of the executive.
Because Solove’s main argument is primarily conceptual, he also omits powerful empirical evidence that would support his arguments. The Bush-era program of extralegal warrantless wiretapping, to name one example, was touted as an invaluable security tool whose exposure by the press risked American lives. Yet as the Washington Post has reported, of the hundreds (perhaps thousands) of people whose international communications were eavesdropped upon each year under the program, fewer than 10 annually proved suspicious enough to justify warrants seeking access to all their communications — and a subsequent joint audit by the inspectors general of several American intelligence agencies found few concrete successes that were definitively attributable to the program.
In places, this leads Solove to make claims that are arguably misleading. In one chapter, he makes a persuasive case that excessive focus on the Patriot Act obscures how thoroughly decades of misguided legal decisions have already eroded the Fourth Amendment, leaving modern digital communications with minimal protections. As evidence, he alludes to the sweeping power of national security letters — which do indeed predate the Patriot Act. He fails to note, however, that prior to the Patriot Act and its successors, these letters were an incredibly narrow and limited tool, bearing about as much resemblance to the current version as a tabby does to a tiger.
These defects aside, “Nothing to Hide” is a potent and sobering tonic that provides an invaluable antidote to the sort of panicked rhetoric that makes privacy and civil liberties into antiquated relics at best, handmaidens of al Qaeda at worst. Here’s hoping legislators crack a copy soon — before citizens literally have nothing left to hide.
