Surveillance: NSA Warrantless Wiretapping

Why Glenn Greenwald's Challenge is Asking the Wrong Question

By Benjamin Wittes
Tuesday, October 14, 2014, 8:36 AM

Over at Vox an admiring article appears on a challenge that Glenn Greenwald is giving to people who think they have nothing to hide:

The most common defense for the massive expansion of government surveillance programs since 2001 is that they only negatively affect people who have something to hide. In a recent TED Talk, Glenn Greenwald, the journalist who first published documents leaked by Edward Snowden, made the case that the government's invasions of privacy have a much broader effect than catching and curtailing terrorist or criminal activity.

Greenwald argued the people who claim they have nothing to hide don't actually mean it. He pointed to Google CEO Eric Schmidt and Facebook CEO Mark Zuckerberg as examples of powerful people who previously defended government and corporate invasions of privacy but have also taken steps — refused to talk to some media, or bought massive properties to make outside snooping more difficult — to protect themselves from peering eyes.

"All of us have things to hide," Greenwald said. "There are all sorts of things that we do and think that we're willing to tell our physician or our lawyer or our psychologist or our spouse or our best friend that we would be mortified for the rest of the world to learn."

Greenwald has devised a challenge for people that tell him they don't worry about their privacy because they have nothing to hide: He asks them to send him all their email passwords and allow him to look through and publish anything he finds interesting. "After all, if you're not a bad person, if you're doing nothing wrong, you should have nothing to hide," Greenwald quipped. "Not a single person has taken me up on that offer."

Greenwald makes this point in his recent book, No Place to Hide, as well, and I have to say, it's a lemon of an argument. For the record, I don't make the argument that I don't mind robust surveillance authorities because I have nothing to hide. I don't make it because it is reductionist and conveys too simple a sense of privacy. I think, for example, that I have little to hide from law enforcement or the intelligence community. But I'm sure I have lots to hide from identity thieves, people who would use my email account to spread spam, and probably from folks like Greenwald, who would use my emails to embarrass me.

Indeed, when people make the argument that they don't fear government surveillance because they have nothing to hide, they are generally not contending that they have no secrets they want to keep from anyone or that they want their entire lives exposed to the public. People who genuinely believe that install webcams in their bedrooms. The claim that one has nothing to hide is not a claim that one's dignity could survive malicious intrusion by a reporter devoted maximally to embarrassing one with full access to one's stuff. It's not a claim either that the Stasi couldn't find something on one.

The claim, rather, is more modest. It's a claim that one does not fear law enforcement and intelligence entities operating within their lawful powers as set by democratic institutions, subject to constitutional constraint, and faced with competing priorities. It's a statement that one has a basic comfort level with the power of these entities to collect material because one believes the laws and rules will protect one if followed and one believes as well that they will be followed. It's a statement that the speaker believes that no rational intelligence or law enforcement agency would devote energy to investigating the speaker, because he or she hasn't done anything worth the attention of those agencies---being basically a law-abiding person in a world full of serious law enforcement intelligence threats. And it's a statement of comfort with the fact that should one's material be swept up in the course of investigations of others, that would be a bummer---but one the speaker's dignity could survive because it's not juicy enough to spark sustained interest. In other words, it's a statement of belief on the speaker's part that the collection powers of the state will not be maliciously directed against the speaker.

This belief may or may not be right. It may be delusional. It may well be too complacent. But it does not challenge it at all to offer---as Greenwald's challenge offers---to go maliciously through the speaker's stuff and publish anything interesting. I live in daily comfort that the D.C. police are not going to break down my door, raid my house, and go through all my stuff. If Greenwald came to me and challenged me, based on this fact, to let him into my house to go through all my stuff, I wouldn't see this as remotely challenging my belief that I am basically secure from unreasonable searches. I would see it as a kind of daft non-sequitur.