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    “So we need to worry. The perfect enforcement of the law, which surveillance technology has now made possible.”

    Why are you writing about “perfect” surveillance when surveillance is so imperfect it has not been used effectively to fight terrorism or oppress Gays, drug users or porn watchers? Surveillance might not even know where your hero Edward Snowden lives or works.

    “We would never have reached the point where majorities of citizens believe that these behaviors are not actually wrong at all.”

    Gay activists protested anti-sodomy laws and the jailing of violators usually based on accidental witnessing of illegal acts. You write as if you think activism by the Gay community and press coverage of that activism had nothing to do with changes in what citizens consider wrong behavior.

    “Now, imagine if the anti-sodomy laws, which were on the books in many, many states until recently, and the drug laws that are still on the books of many states, imagine if they had been perfectly enforced by surveillance—which was not possible [at the time].”

    Imagine anything you want. You took “1984” very seriously. “1984” could happen but still hasn’t yet.

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The following is a lightly edited transcript of remarks delivered by Ben Wizner at The Point’s privacy dialogue at n+1 headquarters in Brooklyn. Mr. Wizner and the other panelists were asked to respond to the question, “What is privacy for?” (the subject of our Issue 9 symposium) and to address Jeremy Rifkin’s contention that privacy is a capitalist value which we ought to discard as the human race enters a new “era of transparency.” Watch the video at the end of this article to hear the other panelists’ comments.

I’ll start with one of my favorite law stories. About fifteen years ago, in Provo, Utah, the proprietor of an adult video store was prosecuted for obscenity. Some of you will know obscenity law, but one of the things that factors into a prosecution for obscenity is that the state has to show that whatever material this person was producing, sharing and selling falls outside of contemporary community standards.

So the defense lawyer for this adult video store proprietor was sitting in the courtroom, and he looked out the window. He saw the Marriott sign—that great Mormon hotel chain—and a lightning bolt struck. He had investigators go to all the hotels around town to get information about the renting of adult videos in hotel rooms, and then he went to the cable companies in town and got raw data about how much pornography was being consumed by the fine burghers of Provo, Utah, and then compared that to national figures.

Lo and behold, people in Provo, Utah were consuming pornography at a much higher rate than the average, and it didn’t take very long for the jury to acquit here.

Now, I can assure you that the very same people who you hear in this debate saying, “Oh, I don’t worry about surveillance, I haven’t done anything wrong, I have nothing to hide,” are the people who are in Marriott hotel rooms—or at least were in 2000, before anybody was getting this stuff for free on the internet—watching pornography.

This is the most facile statement you hear from people [when they talk about privacy]: “I’ve done nothing wrong; I’ve got nothing to hide.” Kundera mocked this idea; he called it “the lyrical dream of the transparent glass house.”

I want to say that it’s the wrong answer to the wrong question. It’s the wrong answer because we all have a lot to hide. We all talk and behave scandalously, and if all that [information] were available to everybody, it would cause no end of grief. It’s the wrong question because, as you’ve heard from all three of my fellow panelists tonight, privacy isn’t fundamentally about secrecy. It’s about things like autonomy—we’ve heard dignity, liberty, power, control, and maybe we’ll talk about that later.

I want to talk about something else tonight, very briefly, and then we’ll get to the discussion. Tonight, instead of brushing off the “I’ve done nothing wrong, I have nothing to hide” comments, I want to speak in defense of doing wrong.

One of my ACLU colleagues, who’s a very fierce privacy advocate … emailed me the other day and said she was sick of talking about surveillance and democracy and liberty. She thought it was time for us to talk more about drugs and porn and adultery and gossip.

I think these things are connected, by the way, to the defense of democracy, but I understood where she was coming from. The reason I think they’re connected is that social change often depends on transgressive conduct, and even sometimes on breaking the law. And we need privacy in order to leave space for that kind of behavior.

The security technologist Bruce Schneier, who many of you will be familiar with, has offered some really good examples of this. Across the United States right now, many states are in the process of reversing decades-old laws about homosexuality, for example, about marijuana use.

Now, imagine if the anti-sodomy laws, which were on the books in many, many states until recently, and the drug laws that are still on the books of many states, imagine if they had been perfectly enforced by surveillance—which was not possible [at the time]. We would never have reached the point where majorities of citizens believe that these behaviors are not actually wrong at all.

So we need to worry. The perfect enforcement of the law, which surveillance technology has now made possible, will chill this very important kind of democratic change. And even if we’re not personally involved in socially valuable transgressive conduct, we need to worry about surveillance practices that will deter other people from engaging in them.

Is all of this a social good, or is this something that we intuitively are worried about? And why? We might say that this kind of enforcement could eliminate certain kinds of bias from law enforcement, although I suspect that in practice it wouldn’t actually have that effect. But I think it also ignores the complex interplay between social practice and positive law. This is, I think, what Cicero had in mind when he said that “extreme justice is extreme injustice.”

Before we get to the discussion, I want to close with one more short anecdote. You’ve probably heard of this debate that we’re having that privacy laws have not kept pace with technology. There are some notable exceptions to that. One of them is for video rentals. Video rentals, for those of you who are too young to know this, is what we used to do if we weren’t from big cities, and it was a weekend, and we’d go to a Blockbuster video store, walking around arguing with other people for 45 minutes.

So in 1987, Robert Bork was nominated to the Supreme Court, and the Washington City Paper, which is a local paper in D.C., managed to go to his video store, get his rental records, and published them in the paper in 1987. Five hundred thirty-five members of Congress—by the way, there’s nothing scandalous in it at all … they didn’t find his adult video store—got very, very nervous all of a sudden and passed a comprehensive video privacy law, with civil and criminal penalties for the violation of video privacy.

I close with that fact because the way to get the attention of people in power about these issues is to demonstrate that they have skin in the game, sometimes literally skin in the game.

And maybe, then, to just sort of punch us into the conversation, I forgot to respond to that foolish statement by Rifkin that you started us with, but I think that it’s very ahistorical, that he’s conflating two ideas of privacy. One of them is bodily privacy—obviously people had a lot less of that until the modern era. But I think information privacy is much more threatened by the current environment than it ever was before. People [in earlier times] were always able to whisper to each other, to go into a field, to have palace intrigue.

And now, because all of our communication takes place over technology, conversations that could never have been heard in the past are now being reported in a surveillance time machine. So, if anything, I think he’s gotten it backwards. Right now, we have less privacy than people had had, in the way that we care about the most.

Ben Wizner is director of the ACLU Speech, Privacy & Technology Project and serves as legal counsel to Edward Snowden.

  • Kindle
  • Moth

    “So we need to worry. The perfect enforcement of the law, which surveillance technology has now made possible.”

    Why are you writing about “perfect” surveillance when surveillance is so imperfect it has not been used effectively to fight terrorism or oppress Gays, drug users or porn watchers? Surveillance might not even know where your hero Edward Snowden lives or works.

    “We would never have reached the point where majorities of citizens believe that these behaviors are not actually wrong at all.”

    Gay activists protested anti-sodomy laws and the jailing of violators usually based on accidental witnessing of illegal acts. You write as if you think activism by the Gay community and press coverage of that activism had nothing to do with changes in what citizens consider wrong behavior.

    “Now, imagine if the anti-sodomy laws, which were on the books in many, many states until recently, and the drug laws that are still on the books of many states, imagine if they had been perfectly enforced by surveillance—which was not possible [at the time].”

    Imagine anything you want. You took “1984” very seriously. “1984” could happen but still hasn’t yet.

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