Security vs. Liberty: The Myth of “Nothing to Hide”

Originally posted 9/19/2002.

There have been several disturbing polls in the past year that are truly frightening. In them, a trend is emerging: the American citizenry is becoming more and more willing to trade in its precious freedoms (the little that they have) for the perception of security.

One such poll announced on July 8, 2002, indicated that as much as 75% of the respondents favored giving up liberty for Terror Protection. In June, a Gallup poll found that 78% (nearly four in five) of Americans were willing to give up certain freedoms to gain security.

Americans seem to want the government to protect them from that unknown without realizing that the government poses a greater threat than any terrorist.

The sad truth is that the perception of security is no more secure than not having security at all. Even though the major limitation of September 11 was the failure of the Immigration Office, our government has deigned it necessary to federalize uneducated high school drop-outs at the airport security stations to provide the mere appearance of security. The result, even more than a full year later, is that there is no greater ability to prevent weapons from being taken on board an airplane, but rather a new form of terrorism has emerged: that where air passengers can be harassed, fondled, looted, and abused without any accountability or recourse whatsoever. Where else but in an airport in America can a complete stranger force you to take off your clothes or (for new mothers) drink your own breast milk at the risk of being taken to jail at gunpoint?

As ridiculous as it may seem, airport security screeners are a microcosm of what happens when the State has absolute, unchecked control over an individual?s personal liberty.

The campaign to eliminate the freedoms of the American population range from restrictions to freedom of speech to restrictions on interstate commerce to restrictions on unreasonable search and seizure. In each of these threats to American liberty – threats that are impossible to retrieve once lost – the main argument comes from a seemingly logical truism:  ‘If you (the citizenry) have not done anything wrong, what do you have to worry about?’

This simple phrase provides the insidious rationale for the unilateral restriction of personal freedom that seems utterly flawless. After all, if you don’t have something to hide then there is no reason whatsoever to be nervous or, at the very least, there shouldn’t be something that you wouldn?t want other people to see or ascertain.

The rationale’s seduction lies in its simplicity, a seemingly benign statement of fact that overall, all things being equal, the good citizen is the one with nothing to hide. Nevertheless, such a rationale is flawed, and greatly flawed indeed.

Reason 1: The Individual as Public Property
Perhaps at its foundation, the question of ‘Nothing to Hide’ perpetuates the absolute inverse of the relationship between the individual and government: an individual’s life is public property, open to inspection at any point in time and place. This is contradictory to the fundamental relationship that the citizenry has with its government: The government is designed to serve at the pleasure of its citizenry, not the other way around.

At some point in time, perhaps during the depression and FDR’s ‘New Deal,’ this relationship got turned around. The government adopted the role of the guardian angel, swooping down from heaven above to bring the country out of depression and into indentured servitude. And the citizenry accepted it willingly. If anything demonstrates the difficulty in returning the relationship to the way it was intended, one only has to look at how difficult it has been to wrestle control back from the government since that time in history.

Reason 2: The Public Good
When people ask ‘what do you have to hide,’ they fail to realize is that you cannot systematically provide for the greater social good by eliminating the private good. The public is made up of a connected series of individuals, and if each of those individuals’ rights are infringed, then the public rights are infringed as well by default. What is left may be a conformist, ‘safe’ society, but one that is definitively devoid of individualism and personal responsibility.

If anything, it has been shown time and time again when people work in their own best interest as well as the best interest of their neighbors, the group succeeds (thanks to Nobel-winning mathematician Thomas Nash). Too many politicians would rather eliminate the individual responsibility and drive for preserving their own best interest, instead preferring to have the government make that determination. All too often, though, that determination equals the lowest common denominator, reducing any individual responsibility to that which is acceptable as equal by the government. Harrison Bergeron lives.

Reason 3: Guilty Until Proven Innocent
One of the direct effects of ?Nothing to Hide? is that the government has the right to insist that you have done something wrong and it is your responsibility to prove your innocence. After all, if the government were to assume you were innocent, why would anyone seek to inspect your personal affairs?

Paradoxically, this is the reason why this argument seems so logical.  ‘If you have nothing to hide, what are you afraid of’ tends to guarantee conformance and innocence. This is, after all, the desired behavior of a State’s citizenry. Nevertheless the question, taken at face value, precludes any reason or rationale that might make the individual want to keep certain aspects of their life private. Immediately the individual is put on the defensive, responsible for ultimately proving his or her own benign status to those that demand it, whenever they demand it, and wherever they demand it. “Show us your papers.”

Reason 4: The Government as Morality
It assumes that the government is the ultimate decision-maker of what is good and just for its citizenry. What is implicit in the reasoning, ‘if you have nothing to hide,’ is the predicate ‘from the government.’ If you as an individual are looking to hide something from the government, it must be because you have done (or have) something that the government perceives to be ‘bad’.

With the passing of the USA PATRIOT Act – the ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act’, what is ‘good’ and ‘bad’ has been granted with far more ambiguity and far-reaching implications. You may, for instance, be running afoul of what the government sees as ‘bad’ without even realizing it. [Update: The update to the US PATRIOT Act, known as The USA Freedom Act, isn’t any better.]

For instance, the Electronic Frontier Foundation, a watchdog group devoted to preserving liberties and freedoms (including privacy) as they relate to policies devoted to online communication, has provided an excellent analysis [Update 2016.10.23 Link updated]of what the USAPA means. Some lowlights:

• Monitoring of searches in search engines
• Nationwide roving wiretaps without a need to show that it?s warranted
• Your ISP can be forced to provide information about your online behavior
• Reading of emails without a warrant
• Spying on suspected trespassers with no need for a court order. This means that if you are legitimately using a computer network -an employer’s or a school’s – all the government has to do is say that you were ‘suspected’ of trespassing and you can be monitored
• Reduction of limitations, or outright avoidance of limitations as to what can or can not be examined, even when there is no probable cause

More to the point, the USA PATRIOT Act allows that the government can do these things in secret, without any public records as to what surveillance is requested or what surveillance actually occurs. Additionally, it extends the time Americans can be detained for questioning without charges being filed. Additionally, the penalties of infraction have doubled as well; now individuals can be incarcerated for up to 20 years for first-time offenders. So, if you happen to run afoul of what the government considers to be ‘bad,’you could not only be investigated in any way the government sees fit, but you could be hauled away for even longer periods of time.

Ultimately, the problem is that not only is the government granted the ultimate sense of what is appropriate or inappropriate, it is under no obligation to identify those categories to its citizens before it starts hauling them away.

Reason 5: The Consequences of the State
This is, without any doubt, the most important reason why the myth of ‘nothing to hide’ is extremely dangerous: it ignores the consequences of the actions of the State. Without trying to sound alarmist or conspiratorial, the State is all-powerful and has the right and the power to do that which its citizenry cannot do – use the force of guns to take anything it wants at its own discretion, including your life, liberty, and property.

Think about this for just a second. The entire idea of the constitution’s Bill of Rights was a very fundamental premise: that rights are not granted to us by our government. A teaser on NPR this morning indicated yet another poll result that Americans feel that the 1st Amendment grants too much freedom. Let’s say this again: Individual rights are not granted to us by our government. The government can not grant rights, it can only grant privileges. Rights are inherent to the individual, not the government. Again, the government serves at the pleasure of its citizenry, not the other way around.

It may seem extremely arrogant (and in fact it is) to assume that we can anticipate the intentions of the framers of the Constitution, but in this particular case it’s extremely straightforward: After being controlled by a totalitarian regime, it was clear that basic human rights were to be protected against the infringement by government. The basic tenets are these:

• The government cannot tell you what you can or cannot say or believe
• The government cannot tell you what religion you can or cannot practice
• The government cannot prevent you from defending yourself
• The government cannot place armed soldiers in your house without your permission
• The government must respect your right to privacy, and cannot simply invade your possessions and take what it wants.
• The government cannot take away your life, liberty, or property without first going through the process (due process) of proving that you deserve it
• The government cannot simply hold you in jail for as long as it likes until it ‘gets around’ to sorting out that due process
• The government cannot unilaterally prevent you from being heard by a jury (aka non-government audience)
• The government cannot punish you as it pleases, nor can it be cruel in its punishment
• The government cannot simply assume that these are the only rights that it cannot infringe upon
• The government cannot annex any additional powers just because it wants to.
• Anything that the Constitution does not specifically grant to Government automatically belongs to the States and the people

[Update 2016.10.24. A reader from CompariTech let me know they completed a very good summary and guide that covers the various acts relating to US Surveillance and investigation, namely The FISA, The Patriot Act, and the Freedom Act]

Conclusion

Legal scholars can and will quibble about the extent to which each of the rights illustrated in the Bill of Rights will reach, but at their fundamentals these are the supposed to be the constraints that the government must work within. There are, after all, only ten (10) of these granted in the original Constitution.

The USAPA directly or indirectly attacks seven of these ten basic rights, or a whopping 70% of freedoms and liberties that are rights of the people. If the State chooses to ultimately infringe upon the citizenry’s rights, only the State can decide not to. In other words, only the State can reverse its decisions.

Therefore, the reason why we must hold on to our liberties, fighting to preserve them tooth and nail is because ultimately there is no recourse should the erosion extend beyond that which is acceptable. By asking ourselves the wrong question: ‘if you have nothing to hide, what are you afraid of?’ we begin with the erroneous assumption of who has the burden of responsibility. We allow ourselves to be vulnerable to illogical syllogisms that will by their very nature reduce the individual to a mere puppet of the State.

So, the next time someone asks, ‘If you’ve not got anything to hide, what do you have to worry about?’ the answer is simple: ‘I worry about why the government believes it has a right to look.’