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Nothing to Hide

  • November 16, 2014
  • Clayton Rice, Q.C.

We have all heard the argument by those who are not opposed to government surveillance: “I’ve got nothing to hide.” In the United Kingdom the use of closed circuit television in public places is pandemic. The advance of the British government’s CCTV program moved forward with the motto: “If you’ve got nothing to hide, you’ve got nothing to fear.” It is the most common reply to advocates of privacy.

Privacy is difficult to appreciate. It is hard to define. Most people set their boundaries intuitively rather than analytically. Let me give you an example. You make a telephone call to a government office, a bank or a company. Your call connects and you receive a recorded message which concludes this way: “Please stay on the line as your call is important to us. This call may be recorded for quality assurance purposes.” Have you ever asked someone what that means? Have you received a satisfactory answer? Do you know where that recording is kept? Do you know if your self-identification has been sold in the secondary information market?

Invasions of privacy are not like a burning building, a car crash or a shooting. Invasions of privacy are subtle and incremental over time. They are not associated with a blast of heat or a pile of twisted metal. There is no sound like the crack we hear when a gun is fired. We don’t bleed when our privacy is invaded. In a law review article titled A Feeling of Unease about Privacy Law, 155 U. Pa. L. Rev. 52 (2006) Professor Ann Bartow suggested that privacy needs more “dead bodies”.

Yet, generally, we dress in the morning, close the door when we use a public washroom and lick an envelope when we mail a letter. These are examples where a reasonable expectation of privacy is asserted regarding bodily integrity, territorial privacy and informational privacy that I discussed in a post titled Privacy Matters dated June 16, 2014. In the context of the nothing-to-hide argument I will focus on informational privacy.

The data security expert Bruce Schneier in The Eternal Value of Privacy (2006) said that the nothing-to-hide argument is based on the faulty, “…premise that privacy is about hiding a wrong.” Professor Daniel J. Solove in Nothing to Hide: The False Tradeoff between Privacy and Security (2011), after referring to Mr. Schneier’s comment, states at p. 27: “The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy.” He then goes on to identify four problems with government collection of personal data.

The first problem is aggregation which emerges at the point where seemingly innocuous data combine to permit the drawing of an inference. To highlight the problem Professor Solove asks you to imagine buying a book about cancer. Then, later, you buy a wig. Individually, the purchases mean little. But combine the two and the inference might be drawn that you have cancer and are in chemotherapy. Before reading Professor Solove’s work, I thought of this as the information intersection.

The second problem is exclusion which occurs when people are prevented from having knowledge about how information about them is being used and when they are barred from accessing and correcting errors in that data. We may consider limitations under access to information legislation in this context.

The third problem is secondary use which is the exploitation of data obtained for one purpose for an unrelated purpose without the subject’s consent. I gave you the example of the potential for sale of the recorded telephone call for quality assurance purposes in the secondary information market. Internet consumer habits, mobile telephone numbers and information given by subscribers to social media sites are other examples.

The fourth problem with government gathering is distortion which Professor Solove describes at p. 28: “Although personal information can reveal quite a lot about people’s personalities and activities, it often fails to reflect the whole person. It can paint a distorted picture, especially since records are reductive – they often capture information in a standardized format with many details omitted.” To illustrate the distortion problem Professor Solove uses the example of a person who buys a number of books about how to manufacture methamphetamine. When he made the purchases he didn’t consider how suspicious they may appear to government officials. But the whole story is that he is writing a novel about a character who makes methamphetamine. He should not have to live in worry about how everything he does will be perceived by government officials monitoring for criminal activity.

After scratching the surface of the nothing-to-hide argument it is obvious that the problems of aggregation, exclusion, secondary use and distortion have nothing to do with hiding a wrong. As Professor Solove states at p. 32: “…[W]hen confronted with the plurality of privacy problems implicated by government data collection and use beyond surveillance and disclosure, the nothing-to-hide argument, in the end, has nothing to say.”

The next time someone says to you “I have nothing to hide” remember this. What they are really saying is: “I don’t care about privacy and neither should you.”

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