Privacy and security
Privacy is so much a part of us, that most people have difficulty even explaining what it is. It's like explaining time; a precise definition is elusive. That's because privacy is such a natural instinct, so intrinsic as to be invisible until its expression is brought to consciousness. We feel privacy more than know it.
Privacy is the control of one's data or information, separately from others. The scope of the information is very broad. It could encompass an individual's existence, location, description, activity, relationships, thoughts, or any other perception of the individual. Privacy is not limited to humans but is part of many animal species. The purpose of privacy is the protection of security, to keep certain information private so as to affect the security of oneself or of one's property. For example, a squirrel will bury acorns to keep the location of that property unknown from others so as to keep it secure. By its very nature, the expression of privacy is dependent on how others perceive the information, so the way privacy is expressed varies widely between individuals, cultures and situations. Because privacy effects the security of the subject of the information, each individual must control her own information and privacy.
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Privacy is part of our DNA
Privacy is important for the survival of many species, including humans. Predators actively seek to keep their existence, location or intentions private in order to enhance their chances of catching prey. Prey animals seek to keep their location or existence private in order to avoid predators. Among primates and other hierarchal social animals, females will conceal mating activity with non-alpha males in the group to avoid retribution. Those who have a strong instinct for privacy have a better chance of survival, and they pass that trait on to their offspring. Privacy enhances security and is an inheritable trait that is subject to natural selection.
Humans, as animals, use privacy to enhance their security and survival. It is part of our DNA. It has helped us survive through our evolutionary development. And we still use it today. We keep our personal financial information and passwords private to protect against fraud. Those who are under exceptional threat, such as stalked women and celebrities, will keep their location private to enhance security. Collectively, we keep certain information about our military defenses private. Privacy is essential to our self-defense and security, both individually and collectively.
Privacy is a natural instinct that is absolutely essential for security.
Privacy in society
How do we integrate privacy into our laws and larger society?
When we form societies, we give up a small portion of our rights (see John Locke, et al), including part of our privacy. We voluntarily provide information about ourselves to facilitate relationships and trade, and we provide the government with a limited amount of information when we interact with it. For example, we publicly disclose where we live to show that we are voting in the right jurisdiction; we make public certain information about real property we own when deeds are recorded. In situations like these, privacy is voluntarily made public to facilitate some specific purpose.
Disclosure of private information is usually done only to those we trust to some extent. The more private the information, the more trust is required for it's disclosure. Information provided to our close friends and family may be very private and disclosed under an assumption and condition of great trust. Information we provide to the government is less private, but there is still some expectation of loyalty to the country or to society.
The reason why trust is involved in the disclosure of private information is because of privacy's relationship to an individual's security — that bond between privacy and self-defense that is burned into our DNA. Because privacy is required for security, when we disclose private information we put our individual security at risk. The more private the information, the more risk is involved, and the more trust is required for it's disclosure.
In government, however, the opposite is true. Transparency is essential for our democracy to function. Transparency is required to assure the integrity of government and allow people to make informed decisions about how to govern themselves. Those who choose to represent our interests and perform government functions on our behalf understand that the activities they perform are open to the public. For our elected representatives, even portions of their private lives are subject to disclosure because the integrity of government is so important. Privacy in government should be avoided.
Individual privacy is desired; privacy in government is not.
However, there is a natural tension for those in government: their instinct to keep their activities private conflicts with the public interest of transparency of governance. This is one reason why oversight of the activities of public officials is so important – we must provide mechanisms that continually encourage and in some cases force, government officials and workers to overcome that natural instinct of privacy and keep their activities open and transparent. This is one of the many reasons why it is important to maintain a free press.
Transparency in government needs to be attenuated in certain limited circumstances in order to help provide for our common defense. Our collective security requires a collective privacy of sorts. For example, the identities of our undercover agents are kept private to facilitate gathering intelligence on our adversaries; the location and capabilities of certain weapons are kept private to protect them and enhance their effectiveness. Because individual privacy and government transparency are such key components of our democracy, those few circumstances in which we require a reduction in individual privacy or an attenuation of government transparency, should be kept at a minimum. The conditions and criterion for those rare cases must be voluntary, narrowly construed, and checked with mechanisms to prevent abuse. Those mechanisms must include direct oversight by a sortition of citizens empowered as a jury in any proceeding that evaluates those non-transparent functions of government or when the right of individual privacy is abridged for criminal prosecution. The citizens of those juries must be sworn to secrecy (as is any other official in government) when dealing with private information.
Information asymmetry
Many have argued that the government needs to collect private information about our citizens – to spy on our own people – so they can protect us from terrorists and other adversaries. One of the problems with having a select few in government who control our private information is that it shifts power. When those in government have private information, they can use that information in any number of ways to exert control over people: by threatening to release the information publicly; by passing the information to competitors or criminals; by using the information to prosecute political rivals; and many other ways. If the information is collected about our adversaries and it causes a shift of power to our officials, to help our common defense, that's good. When the shift is from the citizens and the people to an opaque few, that's bad. When our intelligence apparatus obtains private information about our adversaries, that information may be kept private to facilitate our common defense. However, private information about our own citizens and people should only be given over to the government voluntarily, except for criminal prosecutions. Whenever the individual private information of citizens (or people generally) is voluntarily given over to a government official for some purpose, the information should be made available to all on an equal basis so as to prevent that asymmetric power shift from occurring with citizens' private information. By disclosing the information publicly, there is no shifting of power. An individual's choice as to whether or not to provide private information to the government then becomes a choice of whether or not to make that private information public. The criterion that an individual uses to determine whether to disclose private information to the government should be, "If I make this private information public, will that make me more secure, or less secure?"
"Which is more likely to cause me harm: a rare terrorist attack, or a predator who knows that my daughter is home alone between the hours of 3:30 and 5:30 each weekday?"
Forced abridgment
A situation where privacy is involuntarily abridged is when there is probable cause that a crime has or will be committed. Search warrants are issued when it is more likely than not that a specific person has committed a crime. A warrant must specify a particular object to search for or seize so as to prevent wholesale stripping of the right to privacy. Probable cause with specificity is the only situation in which the right to privacy is involuntarily abridged by government under our highest law. (Even though the Supreme Court has ruled to the contrary in the past, the Constitution is very clear on this point.) To preserve transparency of government, warrants should only be issued privately (non-transparently) when public disclosure would likely compromise an investigation or would disclose an individual's private information. Otherwise, it should all be transparent to the public. And in any case, there must be oversight by a jury of citizens.
When the wrongdoing being investigated is a private (non-transparent) function of government (for example, an intelligence-gathering function), the privacy of that government function is opened up as necessary to allow investigation, prosecution and public examination. This is necessary to deter and prevent future corruption and to preserve the integrity of our government and democracy.
Culture
Another aspect of privacy to consider when evaluating public policy is the effect on our culture. Our highest law assumes innocence. This is done for multiple reasons, but one very important reason is because of the effect the policy has on our culture. The assumption of innocence has a positive effect on a person's attitude. Cultural attitudes and resulting behaviors are driven by society's expectations. That is, if society expects that people will follow the law, people will see that expectation as the norm of behavior and therefore more people will follow the law. When expectations are higher, when the bar is set higher, behavior follows.
It has been proposed that we give more power to the government to invade the privacy of Americans in the name of security; in essence, to assume guilt among those who are unlikely to have committed a crime. If we were to change the assumption of innocence in our handling of privacy, i.e., if we were to allow government to invade privacy when there is no probable cause of guilt, then the general expectation of society would shift. The expectation would be that people do not obey the law and people's behavior would follow that expectation; more people would break the law.
The result of that proposed policy to give government more power to invade privacy — in addition to eroding individual security — would be to actually cause an increase in crime among the general population; the opposite of the intention of the policy change. This is one of the reasons why countries that have imposed draconian invasions of privacy still have crime.
Triggering a civil war
Another possible adverse affect of the government seizing more power by abridging individual rights is to push those people who are on the edge of active revolution to take action. Domestic terrorism would increase as a result – perhaps triggering a cycle of violence and suppression – again, the result would be the opposite of the intention of the proposed policy of increased government surveillance.
Our security is strengthened when we have unity. Our unity is defined by our common values; and the primary value that all Americans share is Freedom. It's what America is all about. Policies that reduce Freedom erode our unity and ultimately weaken our security, both individually and collectively. People have a right to self-defense; privacy is a key component of that right. Individual privacy is a right which should not be infringed.
