One of the most consistent responses to the concerns raised by EFF and others about the US government’s mass spying programs is this: If you’ve got nothing to hide you have no reason to fear.
It sounds like a compelling claim on the surface.
It paints those who need to have secrets from their government as furtive and likely up to no good as compared to upstanding citizens who gladly open their lives to government inspection.
Unfortunately, this question is also still highly relevant.
The recently-passed USA Freedom Act will stop the NSA’s blanket mass collection of telephone records at the end of November and that’s good.
But that program will be replaced with one that, while smaller in scope, is still overbroad and shrouded in secrecy.
Worse, the government is still copying, scanning and filtering millions of ordinary communications coming through key internet junctures with the help of companies like AT&T.
The government also weakens digital security in order to make it easier to surveil communications, by pressuring companies into offering weaker security.
The government even collects and hides vulnerabilities in order to exploit them, rather than ensuring that our tools are as safe as possible.
The government’s goal is now clear: to ensure a world in which true privacy in our lives online is impossible. Every digital conversation, search and website visit – whether via email, chat, social media or voice – is subject to government access.
True privacy of our communications is lost, replaced with a hope that our online actions would never be intentionally or unintentionally caught in the government’s secret net.
This matters even if you think you have nothing to hide. First, mass surveillance leaves people at the mercy of not only the NSA, but also the DEA, the FBI and even the IRS, since the intelligence community is sharing more information than ever before.
We know that the government claims that any evidence of a crime can be sent to domestic law enforcement agencies and we also know that the DEA built its own database of telephone records, which was supposed to be limited to drug crimes but was used far beyond its initial mandate.
Second, even if you don’t think you have something to hide, it’s possible the government thinks you do. One legal expert has argued that the average person likely commits three felonies a day without ever realizing it.
That’s not surprising since there are so many criminal laws on the books – an attempt to catalogue them all in the 1980s failed. And even if you don’t ever violate any law or draw the ire of policeman or prosecutor, someone you know and love could.
Third, the attacks on the security of our networks and devices leave us not only at the mercy of US governmental surveillance but also vulnerable to sophisticated foreign governments and criminals.
Security experts have made it clear that there is no way that weakened security is only useful for the US government. Limitations on the security of our networks and devices leave us vulnerable to bad guys all around the world.
In a time when massive data breaches make the news monthly, it’s pretty clear that you certainly have something to hide from someone – online thieves.
But equally importantly, this “nothing to hide” framing is incomplete. It focuses on individuals and their personal privacy, which are important values, but not the only ones at play in surveillance. We all benefit from a system that allows privacy.
The Bill of Rights wasn’t written merely to secure individual rights against the government.
It was written to protect the necessary conditions for a functioning democracy. And on that score, the NSA’s giant shift from limited, targeted surveillance based upon a warrant issued by a judge to mass surveillance is profound indeed.
For instance, the First Amendment secures your right to associate with others privately. In the civil rights era the Supreme Court held that the NAACP did not have to turn over its membership lists – its associational information – to the government of Alabama as a condition of opening an office there.
The Court’s argument was straightforward: people simply won’t join legal, political or social change movements if they know that they could be exposed to a potentially hostile government’s prying eyes.
That’s as true today as it was in the 1950s and 60s and it was for that reason that groups as diverse as Human Rights Watch, Greenpeace, the California Gun Owners Association, the Shalom Center and the First Unitarian Church of Los Angeles joined us in a lawsuit challenging mass telephone surveillance.
Similarly, the Fourth Amendment protects your right to be secure in your papers not just for the sake of your personal privacy, but because self-government requires it.
The Fourth Amendment was written in direct response to the British government’s indiscriminate “general warrants” that allowed them to search through the colonists homes looking for evidence of crimes like tax evasion (remember the Boston Tea Party?).
The founders of this country recognized that people shouldn’t be left at the mercy of government officials if the country was to be governed “by the people.”
These ideas aren’t just American ones. International law uses concepts like requiring surveillance to be “necessary and proportionate” to limit what governments around the world can do.
These standards protect international human rights just as the US constitution protects civil rights.
So if you think you have nothing to hide, should you still be concerned about NSA surveillance?
Whether your concerns are personal, political, legal or simply about ensuring strong security in your online activities, the answer is clear.