A few weeks ago, I wrote a post criticizing an essay by William Stuntz (law, Harvard) in The New Republic. Today, he has responded to my post in The New Republic Online.
I’ll reply briefly here to a few of Stuntz’s points in response. Stuntz observes:
What are the worst things governments do to their citizens, the abuses that most characterize despots and dictators? For my money, spying and snooping are pretty far down the list. I’d rank these much higher: torture and other physical abuse, harassment of political and religious dissidents, and (most of all) arbitrary punishment–prison sentences handed down not because the prisoners did some terrible wrong or caused some horrible injury, but because they got on the wrong side of some local party boss.
Stuntz seems to assume that privacy and transparency are separate issues from the ones he lists above, but I see privacy and transparency as integral checks to prevent the kinds of abuses Stuntz mentions.
Stuntz then writes:
Solove says that it’s “silly” to say that we’re better off if the government listens to lots of phone conversations rather than only a few. If so, then current law is silly–for as he knows, the law today and for some time has drawn precisely that line. That is why the police can set up roadblocks and stop every car to check for drunk drivers, even though the cops have no reason to suspect any one driver. In my view, the same principle should apply to phone calls, and to DNA tests. If I understand the news stories correctly, nearly all the members of Duke’s lacrosse team were tested in connection with the ongoing Durham rape investigation. That strikes me as a very good thing: DNA tests reduce the odds that the guilty will escape punishment, and also reduce the odds that innocents will suffer it. Does Solove disagree?
I am not an absolutist when it comes to protecting privacy. I believe that the police should have the power to conduct a variety of investigations; they should be able to conduct DNA tests; they should be able to wiretap and engage in surveillance. The issue isn’t whether or not they should be allowed to do these things; rather, it is what kinds of oversight and accountability do we want in place when the police engage in searches and seizures. The police can employ nearly any kind of investigatory activity with a warrant supported by probable cause. This is a mechanism of oversight — it forces the police to justify their suspicions to a neutral judge or magistrate before engaging in the tactic. Driver checkpoints are limited in the kinds of questions the police can ask; in what they can stop motorists for; in how long they can stop people; and so on. The law allows for wiretapping but only under judicial supervision, procedures to minimize the breadth of the wiretapping, and requirements that the police report back to the court to prevent abuses. 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; it is whether the Executive Branch should adhere to the appropriate oversight procedures that Congress has enacted into law or whether it should be allowed to covertly ignore any oversight.
Regarding the DNA tests of the Duke lacrosse members, there was a legitimate reason to suspect them of a crime, so they should be tested. Moreover, DNA presents very different considerations from surveillance. Because current DNA typing uses only parts of DNA and cannot be used to ferret out medical histories and conditions (at least not currently), it might not present as substanial a privacy risk. In one post a while ago, I examined whether everybody should be included in a DNA database. As my post indicates, I believe that with the right set of protections, DNA identification can be successfully used. The question is not one of yea or nay to DNA databases, but of whether they can be implemented in ways with the appropriate oversight and protections. Other forms of surveillance poste different problems, such as the NSA surveillance, which is far more troublesome because of the kind of information it can reveal.
Turning to transparency, Stuntz argues:
As I understand American political history, we once had a political culture in which the legislative and executive branches operated much like appellate courts. There were public debates and votes that produced public decisions. But before those debates and votes, a good deal of discussion and analysis happened behind the scenes, outside public view. Not coincidentally, that style of governing seemed to accomplish more than the transparent government we usually see now. I’d like to return to that older style. For the life of me, I can’t understand why that makes me an enemy of freedom.
I disagree with several premises. I’m not so sure that we have progressed from a golden era of a highly functional government to the dark ages of a disfunctional one. The government has had its high points and low points in history, and I don’t think that transparency is the problem. The problems, as I see it, are excessively divisive partisan politics and a government that isn’t responsive enough to the people — it serves the interests of the rich and powerful, the big corporations, or the highly vocal interest groups. Closed doors facilitate the kind of Washington lobbying and special influence culture that often makes the government out of touch with the people it governs.
Finally, Stuntz observes:
Limits on government power that look wise when the other side holds the reins sometimes look foolish when your side is in charge. Better to put aside today’s partisan debates and think about the long term. Not all civil liberties are created equal; some matter more than others. If we protect the wrong ones too much, we’re liable to protect the right ones too little.
I have several responses. First, it doesn’t strike me as inevitable or likely that by protecting some civil liberties that we won’t protect others. If anything, Stuntz’s logic works better when it comes to particular security measures. We have limited money and resources, and thus we have to choose which security measures to adopt. In my view, we should be focusing on tracking down loose nukes and other serious threats; securing our ports; and so on. Engaging in random subway searches or spending millions of dollars on data mining systems that have no proven track record of actually working strike me as making the wrong security choices. Privacy and transparency force some debate into the mix when it comes to these measures, and this debate might steer the government away from some very poor security choices.
Second, limits on government power are especially important when one side controls many of the branches — whether it is your side or not. Stuntz may have legitimate gripes about a government that is not working as efficiently and intelligently as it should be, but the cause isn’t privacy or transparency. It is a two-party system that doesn’t adequately represent the views of many citizens. It is the constant game-playing and partisan rancor that persists in Washington. It is a system that faciliates gerrymandering to keep incumbents in power and less accountable for their actions. It is the profound influence of money in politics. It is politicians voting for measures not because they’re good for the country, but because they help out local interests or companies that make robust financial contributions. There’s a lot that is wrong with government, but it surely isn’t privacy and transparency.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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