During the so-called ‘War on Terror’ the citizen’s rights get more and more under pressure. The critics of this development are gaged with the argument ‘Who does not have something to hide, has nothing to fear’ . However there is a common understanding that there is a need of legal rules for acts of surveillance. In the context of Electronic Surveillance of Communications there has been a consideration if the collection of data and surveillance are consistent with the right of privacy apart from its legitimacy. Especially against the background that this is both a human right and a constitutional right.
“I’ VE GOT NOTHING TO HIDE ”
Electronic surveillance of communications, privacy and the power of arguments
I. INTRODUCTION - T HE ISSUES IN BRIEF
During the so-called ‘War on Terror’[1] the citizen’s rights get more and more under pressure. The critics of this development are gaged with the argument ‘Who does not have something to hide, has nothing to fear’ [2]. However there is a common understanding that there is a need of legal rules for acts of surveillance. In the context of Electronic Surveillance of Communications there has been a consideration if the collection of data and surveillance are consistent with the right of privacy apart from its legitimacy.[3] Especially against the background that this is both a human right and a constitutional right.
‘When discussing whether government surveillance and data mining pose a threat to privacy, many people respond that they have nothing to hide. This argument permeates the popular discourse about privacy and security issues.’[4]
This argument appears to be absolutely certain. In other words this argument should be an answer to all questions and should make further debates and explanations obsolete. But how convincing is this argument and where is the basis of its persuasive power? (Part II – Analysis of an issue related to the course)
Furthermore there is the need for an analysis of the perspectives of the various stakeholders, which may have an interest in the discussion about a definition of privacy against the background of the nothing to hide argument. (Part III – Analysis from the perspectives of the different entities)
II. ‘I’ VE GOT NOTHING TO HIDE ’ AS A CHARTER FOR SURVEILLANCE
The nothing to hide argument … ‘represents a singular and narrow way of conceiving of privacy, and it wins by excluding consideration of the other problems often raised in government surveillance and data mining programs.’ [5] With regard to Solove’s assumption it is advisable to analyse this issue.
First of all the nothing to hide argument does not occur the law on surveillance, especially on data mining. However there is a law on electronic surveillance it affects the way of applying and interpreting it.[6] The argument reverses the onus of proof. That does not mean the onus of proof in the legal sense. In the end there is a judge who decides about guiltiness and innocent. The reverse of the onus of proof takes place in the debate about the national security. The logic of this statement contradicts the legitimacy of citizen’s rights. The advocate of the citizen’s rights has to proof that it is legitimate to defend them. However it is written down in the constitutions. In other words it denies that there could be problem of privacy.[7]
On the other side the supporters of mass surveillance, e.g. the tool of data mining, has apparently the right on their side. They have not to proof the usage because if you got nothing to hide, you have nothing to fear. Their main argument is the obvious extreme case of a terroristic attack. This danger for life and limb requires immediate intervention because the life of an individual is the highest good. Consequently it takes priority over the right to privacy. In other words you have to balance the right of privacy and the state’s responsibility of the life and limb of its citizens. But who is entitled to pay this
high price for guarantee the right of privacy? Even in the case that this guarantee could cost many lives. Hence the states hands are tied.[8]
It is difficult to answer on the question who is entitled to pay this high price. It will only success if the society makes an issue out of the problems and contradictions of the nothing to hide argument. Due to the fact that surveillance respectively control is indispensable and critics can be seen as circumvention, the countermovement is even under suspicion. The statement that the individual has no damage in case of surveillance leads to the reasons of the protest:
- The respectable citizen will protest but the nothing to hide argument clarifies that the fear is without merit
- The protesting citizen has something to hide and his protest should be used as a camouflage
That fits also to the debate of pattern-based data mining and its false-positive and false- negative results as well as the discussion about the collections of data by the signals intelligence agencies.[9] Though you could say on the one hand that these protests are unjustified because of the nothing to hide argument and the state’s obligations to protect their citizens. But on the other hand every citizen no matter if he protests or not will be under general suspicion. In other words the argument could be used as a charter for surveillance. Therefore the analysis of the nothing to hide argument shows that apart from its evaluation it creates uncertainty about electronic surveillance. However a previous court decision of for example data mining would be a first step to create trust in the acts of surveillance.
But as Solove concludes in his essay the nothing to hide argument would not be so strong in every direction if there were a clear definition about privacy with regard to the acts of surveillance. When it is confronted with the bunch of specific privacy issues, even the nothing to hide argument cannot win automatically against everything. However furthermore it is used as a rhetoric tool to suspect the critics. In this moment they have the burden of proof that they have nothing to hide and the respectable citizen has nothing to fear.[10] To sum up the argument does not occur the law but it avoids the consideration of privacy issues relating to surveillance and data mining. Though it has no legal power. However it has a wide influence on the legal practice. The fundament bases on the lack of clear rules on the procedures in the field of surveillance and data mining. Due to the assumption mentioned above the argument would not win in every case if there were no need for it. But the need is based on the lack of clear und trustworthy rules.
[...]
[1] Anup Shah, Global Issues, ‘War on Terror’ [2011] < http://www.globalissues.org/issue/245/war-on- terror> accessed 4 March 2012.
[2] Daniel J Solove, ‘“I've Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego L Rev 745.
[3] Mark Klamberg, PingPong, ‘Electronic Surveillance’ [2012]https://server.pingpong.net/courseId/50209/node.do?id=27592308&ts=1329221119140&u= 1600006021 accessed 1 March 2012 Official course material University of Stockholm.
[4] Daniel J Solove, ‘“I've Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego L Rev 745.
[5] Ibid.
[6] Mark Klamberg, ‘A Paradigm Shift in Electronic Surveillance Law’ in Dag Wiese Schartum (ed), Overvåking i en rettsstat (Nordisk årsbok i rättsinformatik, Fagbokforlaget 2010) 97.
[7] Daniel J Solove, ‘“I've Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego L Rev 745.
[8] Ibid.
[9] Mark Klamberg, PingPong, ‘Electronic Surveillance’ [2012] https://server.pingpong.net/courseId/50209/node.do?id=27592308&ts=1329221119140&u= 1600006021 accessed 1 March 2012 Official course material University of Stockholm.
[10] Daniel J Solove, ‘“I've Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego L Rev 745.
- Quote paper
- Dipl. jur. Sascha Klein (Author), 2012, "I've got nothing to hide", Munich, GRIN Verlag, https://www.grin.com/document/192766
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