Solove 2011 – Nothing to Hide (part "Values")¶

In brief

Solove argues that the debate about privacy and security is distorted by faulty assumptions about privacy (pp. 21, 33) [U]. The nothing-to-hide argument assumes privacy is about hiding bad things, but privacy is a plurality of different problems, and many of them concern how government processes data, not what it discovers (pp. 24, 26–29) [U]. He also criticises casting the choice as all-or-nothing (pp. 33–37), and courts' deference to security experts (pp. 38–46) [U]. Finally he argues that privacy should be understood as a societal value, not only an individual right (p. 47) [U].

Research question and main claim¶

The part's subtitle is How We Should Assess and Balance the Values of Privacy and Security (part title page, PDF page 2) [U].
Nothing to hide: the argument stems from faulty assumptions about privacy and its value (p. 21). The core problem is that it views privacy as a form of secrecy (pp. 27, 29) [U]. When confronted with the plurality of privacy problems raised by government data collection and use, the argument "has nothing to say" (p. 32) [U].
All or nothing: the claim that privacy and security are mutually exclusive is a fallacy; sacrificing privacy does not automatically make us more secure (p. 34) [U]. The real choice is between a security measure with oversight and regulation and one at the sole discretion of the executive (p. 37) [U].
Deference: courts should not defer to the government's security experts on how effective a measure is (pp. 39–40) [U].
Not merely individual: privacy should be weighed for everyone in society, not only for the person bringing the case (p. 47) [U].

Theoretical perspective¶

Pragmatism: Dewey on how a problem's formulation shapes its solution (p. 24), and on individual and social good as interrelated (pp. 49–50) [U]. Solove explicitly sides with Dewey (p. 50) [U].
Robert Post: privacy as society's attempt to promote civility; an internal dimension of society (p. 50) [U].
He positions himself against individualistic rights theories (Emerson, Fried; p. 48) and against Etzioni's communitarianism, which he says shares the same dichotomy between individual and society (p. 49) [U].
Opponents on security: Eric Posner and Adrian Vermeule (pp. 34, 40–41) and Richard Posner (p. 40) [U].
Literary metaphors: Orwell's Nineteen Eighty-Four and Kafka's The Trial (pp. 25–26) [U].
Bruce Schneier on the nothing-to-hide argument and security theater (pp. 21, 27, 45) [U].

Empirical material and context¶

No systematic empirical material. Uses examples, quotes, cases and statistics [T].
Examples of the nothing-to-hide argument: a British CCTV campaign slogan (pp. 21–22), blogs and comments on Solove's own blog Concurring Opinions (pp. 22–23) [U].
US cases and politics: the NSA surveillance programme (p. 33), the New York subway search programme and MacWade v. Kelly (pp. 38–39), Fourth Amendment case law (pp. 35, 48) [U].
Polls from Pew (2002) and Rasmussen (2005) on surveillance (p. 36) [U].
Statistics on terrorism deaths compared with other causes (p. 43) [U].
Context: the United States after 11 September 2001 [T – inferred from the examples].
The endnotes are not in the PDF, so the references behind the numbered notes cannot be checked [T].

Method¶

Normative, legal-philosophical argument, built by taking an argument apart and examining its assumptions (pp. 21, 31–32) [T – characterisation].
Critical reading of court reasoning, especially MacWade v. Kelly (pp. 38–39) [U].
Uses analogies and metaphors (Orwell/Kafka, the sinking boat, the environmental damage) as tools in the argument (pp. 25–26, 30, 34) [U].

Key concepts¶

Concept	How the source defines or uses it	Page	U/T
nothing-to-hide argument	That the privacy interest is generally minimal, so the balance against security becomes a foreordained victory for security	21	U
privacy as plurality	Not a single essence, but different things that do not share one element but resemble each other	24	U
Orwellian vs Kafkaesque problems	Orwell: surveillance, inhibition and social control. Kafka: information processing (storage, use, analysis) by a bureaucracy that denies people participation	25–26	U
aggregation	Small, innocuous pieces of data become revealing when combined	27	U
exclusion	People do not know how data about them are used and cannot access or correct them; a power imbalance between individual and government	27–28	U
secondary use	Data obtained for one purpose used for an unrelated purpose without consent	28	U
distortion	Records are reductive and can give a distorted picture of a person	28	U
all-or-nothing fallacy	That privacy and security are mutually exclusive	34	U
deference	Courts leaving the assessment of a measure's effectiveness to the executive	38–39, 42	U
security theater	(Schneier) Measures that make people feel safer without improving security	45	U
privacy as societal value	Society protects the individual for society's sake; societal interests on both sides of the scale	47, 50	U

How privacy and private data are understood¶

As a plurality of problems, not one thing; it is not reduced to secrecy (pp. 24–25, 27) [U].
As a question of power and structure between people and the institutions of the modern state (pp. 26, 28) [U]. The harms are bureaucratic: indifference, error, abuse, frustration, and lack of transparency and accountability (p. 27) [U].
As something that erodes gradually, like certain environmental harms caused by many small acts over time (p. 30) [U].
As a right to be balanced against security, where protection usually means oversight and regulation, not prohibition (pp. 35–37) [U].
As a societal value: privacy is itself a form of social control emerging from society's norms (p. 50) [U].
Personal data are discussed mainly as something the government collects, combines, stores and uses (pp. 21, 27–28, 31) [U].

Arguments and findings¶

How problems are conceived has a great impact on the legal and policy solutions (p. 24) [U].
Courts, legislators and others often fail to recognise that privacy is implicated, because the problem does not fit their conception of privacy (p. 25) [U].
Legal and policy solutions focus too much on surveillance (Orwell) and too little on information processing (Kafka) (p. 26) [U].
Government information-gathering programmes are problematic even if nothing people want to hide is uncovered (p. 27) [U].
Two ways to justify a programme: deny that a problem exists, or admit the problem and argue that the benefits outweigh it. The first influences the second (p. 29) [U].
Demanding "dead bodies" type harms, as some privacy advocates also do, means few privacy problems will be recognised (pp. 29–30) [U].
The government can also harm people unintentionally, through errors or carelessness (p. 31) [U].
Protecting privacy rarely means stopping a security measure; it usually means oversight, such as judicial approval under the Fourth Amendment (pp. 35–36) [U]. Polls ask all-or-nothing questions and leave out warrants and court orders (pp. 36–37) [U].
If courts do not question the effectiveness of security measures, the security interest wins nearly every time (p. 41) [U].
Making experts justify their decisions is important; a sound policy should have a sound justification (p. 42) [U].
No deference is also good for security, because officials have to be careful and accountable (p. 45) [U].
When privacy is weighed as one person's interest against society's safety, society almost always wins (pp. 47, 49, 51) [U].

Limitations the source itself mentions¶

Past experience with terrorism may not be a good indicator of the future (p. 43) [U].
Fear must be taken into account, even if it is irrationally high (p. 43) [U].
Courts should not take a know-it-all attitude (pp. 39–40) [U]. The experts may in the end be right (p. 46) [U].
The executive branch may be the right branch for developing security measures, though not for setting the balance (p. 41) [U].
The Orwell metaphor may be apt for government monitoring of citizens (p. 25) [U].

What the source does not cover¶

The part read is about the United States and national security. Europe, data protection legislation and Norway are not addressed in these pages [T].
Companies' collection and use of data is barely discussed; the focus is the government [T].
The rest of the book (other parts) is not read [T].

Possible relevance for the thesis¶

Of the pilot sources, this is the one that most directly addresses the state's collection and use of personal data, which is the core of the research question [T].
The taxonomy (aggregation, exclusion, secondary use, distortion; pp. 27–28) can serve as a checklist for which problems the government documents name, and which they do not [T].
The point that the way a problem is conceived shapes the solution (p. 24) can be read alongside Asdal on how documents shape issues [T].
The distinction between denying a problem and admitting it but weighing it (p. 29) can be used to ask how government documents justify data use [T].
The US context means the transfer to Norway must be argued [T].

Connections to other sources¶

Fairfield & Engel 2015 – cite Solove on the nothing-to-hide argument (Fairfield & Engel p. 446, n. 276). The sentence they quote from Solove's 2011 essay, about the disclosure of secrets and the Peeping Tom, also appears in this book (p. 25) [U]. Both argue that privacy is more than an individual concern, from different traditions (economics vs. pragmatism and law) [T].
Asdal 2015 – thematic: both emphasise that how a problem or issue is formulated affects its handling (Solove p. 24) [T].
Bauman et al. 2014, Gros et al. 2017 – thematic: surveillance and security [T].
Foucault 2008 – thematic: Solove's Orwellian surveillance problems (inhibition, social control; p. 25) vs. Foucault on panopticism. Solove does not cite Foucault in these pages [T].

Key quotes¶

“Privacy, however, is too complex a concept to be reduced to a singular essence.” (p. 24)

“The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy.” (p. 27)

“This issue isn't about what information people want to hide but about the power and the structure of government.” (p. 28)

“The choice is not between a security measure and nothing, but between a security measure with oversight and regulation and a security measure at the sole discretion of executive officials.” (p. 37)

“Privacy should be understood as a societal value, not just an individual one.” (p. 47)

Open questions for Rebekka¶

Do you use only the part "Values" (pp. 21–52), or other chapters of the book as well?
Which of Solove's problems (aggregation, exclusion, secondary use, distortion) do you recognise in the Norwegian documents, and which are absent?
Do the documents treat privacy as something to be balanced against other values (security, efficiency, innovation)? If so, what is on each side of the scale?
Solove writes about a security context in the US. Does his argument hold for a Norwegian state that uses data mainly for welfare and administration?
Fairfield & Engel and Solove both say privacy is not only individual, but for different reasons. Which of these understandings, if any, do you find in your primary documents?