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Thursday, May 16, 2019

Who Decides If You Have Nothing to Hide?

A classic defense for government encroaching on our integrity and privacy is that "if you have nothing to hide..." With the advancement of information and communication technology the question of "having nothing to hide" is again becoming relevant - especially since the libertarian movement is beginning to fold on the "nothing to hide" part.


Video surveillance was first introduced in mass transit systems, specifically subway and railroad stations, in the 1960s. The crudeness of the technology would cause many to laugh today, when a simple cell phone has a better camera than a costly, bulky video camera half a century ago. However, despite the crude technology used in those days, I remember actually reading about privacy concerns associated with the spreading of video surveillance: even at a time when you could barely make out the gender of a person being videotaped, there were those who were not happy with the prospect of being videotaped as you traveled through Trafalgar Square in London or Grand Central in New York. 

Since then, camera and video storage technology has made almost unimaginable progress. Today, I can store more video material on my iPhone than a high-end video recorder could do 50 years ago. I can record details with my simple phone camera that were unthinkable back then.

With technological advancements, proliferation and cost cuts, the privacy concerns have expanded accordingly. Today, cameras mounted in public places can be used to fine jaywalkers, as in Shenzhen in China, or they can be used to scan for criminals walking around in public places. From London, the BBC reports:
The Metropolitan Police have been trialling the use of facial recognition in different parts of London, using cameras to scan passers-by to find matches on watch lists. South Wales Police have used similar technology in more than a dozen trials. Some privacy campaigners say there is no UK legislation regarding facial recognition and it is being used without regulation. The Home Office has previously said facial recognition can be an "invaluable tool" in fighting crime.
In the video attached to the story, a group of police officers standing in the street right next to where the cameras are mounted, stop a man who does not want his face filmed. They forcefully take his picture and fine him 90 pounds sterling for trying to conceal his face.

The same video reports of arrests being made when the face-recognition cameras spotted people wanted by the police. 

A common argument in favor of the use of this technology is that it is only for the purposes of helping police enforce the law and catch criminals on the run. The punch line often thrown in by surveillance-technology advocates is the classic "if you have nothing to hide, you have nothing to be afraid of."

Those who advocate individualized data on highway travel, as part of a system for taxing us based on our driving habits, tend to lean in the same nothing-to-hide direction. For example, Adrian Moore, vice president of policy of allegedly libertarian Reason Foundation, is a forceful advocate of a miles-based tax system that necessitates the collection of individualized citizen data. While not explicitly saying "if you have nothing to hide...", Moore arrogantly ignores any argument that his system opens for deeply invasive violations of our privacy. 

Moore, a self-portrayed libertarian, seems to actually believe that if people have nothing to hide they have nothing to fear from being identified, monitored and recorded by their own government. 

His naive attitude is not new. In Germany back in the 1930s, the nothing-to-hide attitude was part of the defense of a surveillance technique that was fairly sophisticated for the time. Geheime Staatspolizei, Gestapo, had learned how to secretly monitor conversations in rooms with a landline telephone. They found a way to activate the microphone on the receiver (remember those old desktop telephones we had back in the day...) and quietly listen to what was being said in the room. When leaks of the program started to pour out and some voiced concerns, the prevailing argument was that "if you have nothing to hide, you have nothing to be afraid of."

We all have good reasons to raise our voices whenever this argument is being made in defense of mass collection of individualized citizen data (as opposed to anonymized data, such as monitoring traffic volumes on a highway). Be it our faces, our phone conversations, our library book check-outs or our highway travels, there is never a reason to motivate that amassing of information based on the nothing-to-hide premise. 

There are two reasons why this defense is unacceptable. First, let us listen to Bryan Clark, U.S. Editor at The Next Web. In an excellent piece from 2016 he explains plainly yet forcefully why we all have something to hide - and why that is perfectly fine and none of government's business:
The problem with the “nothing to hide” argument is: we’ve all got plenty to hide. Just today, did you pick your nose? Change clothes? Have sex? Take a shower? Go to the bathroom? Sing off-key in the car on the way to work? Or, maybe you sent an email or text message, a racy photo on Snapchat, or said something inflammatory about your boss. I bet, if pressed, you’d prefer that most, if not all, of these actions remained private. And that’s okay. Privacy is a key part of all our lives. But now that our lives are drifting into the online space, and more with each passing year, why the disconnect between offline and online privacy? The former is desired and expected, while the latter is lauded as wrong and sometimes even criminal. Separating the desire for privacy from the desire to do something illegal is where it all starts. Too often the two are interwoven into a blanket statement that all those who desire privacy online are doing so out of the necessity to hide nefarious actions. Arguing that only criminals desire privacy is a dangerous thought, as it’s suggesting that we are all worthy of suspicion. In the courts, we’re innocent until proven guilty. Online, it’s quite the opposite.
As mentioned earlier, the nothing-to-hide argument is much older than the online world. That said, Bryan Clark makes a good argument and in a sense actually anticipates the roll-out of public facial-recognition technology. When cameras placed in the street scan everyone's faces and runs them against an online database, the boundary between online and offline has already been breached. When, as in the Chinese example, the facial recognition system not only documents a violation - jaywalking - but also texts you a notification and, on top of that, debits your bank account, the line between the computerized world and our physical existence has been completely erased.

Privacy is no longer dichotomized into two different worlds. It is a continuum. Therefore, the practice of collecting individualized citizen data that identifies us by identity, must be subjected to the same privacy concerns as our homes, our cars - our private lives generally as we live them in the physical world.

But why? Surely, the things that Bryan Clark mention as examples of everyone having something to hide, are innocent enough? Surely they won't attract the interest of government, let alone law enforcement?

Yes, they would. Before we get to that point, though, let us note that any individualized citizen data can be used against someone, in situations and contexts that we may not foresee today. Suppose your city installs a public facial recognition system in the streets and stores the recordings so that police can use them as evidence when the system spots a wanted person. Suppose the city made that database available for other purposes as well. Imagine a man who is in a bad marriage drifting toward divorce. He is out walking with his new girlfriend and they are video recorded and facially recognized. Suppose now that the estranged wife's divorce lawyer asks the city for a printout of what the husband has been up to, as part of a divorce trial.

Surveillance advocates would of course counter with arguments such as "there would be legal barriers against improper use", etc. But what if the city is cash strapped and sees an opportunity to pad its pockets by selling the information to the lawyer? Or what if the state passes a law saying that adultery is a reason to lose certain government-provided benefits?

We don't even have to go that far. Suppose you are on unemployment benefits and your brother in law asks you to drive one of his delivery trucks for a couple of days while one of his employees is out sick. Suppose the public facial-recognition system spots you in that truck and you lose your benefits.

Still, the nothing-to-hide advocate will say: you did something you were not supposed to do. You have nothing to be upset about.

Which brings us to the second reason why the nothing-to-hide argument is unacceptable.

You are not the one who decides if you have nothing to hide. In Britain today, it is illegal to refer to a transgender person by a gender pronoun that the person in question has not chosen for him- or herself (or itself). What if the facial recognition system is paired with a system of microphones picking up conversations? You walk down the street with your buddy, and you refer to "that lady up the street who now thinks she's a man - I think she's still a woman." You now committed a punishable offense. The face-recognition system identifies you, and reports you to the police.

What if government outlaws the public display of the Christian cross, and the face-recognition system spots you wearing one as you walk down Main Street? You are now summoned to court and issued a fine.

In China, government agencies and private companies are collecting enormous amounts of data about e.g. an individual’s finances, social media activities, credit history, health records, online purchases, tax payments, legal matters, and people you associate with in, addition to images gathered from China’s 200 million surveillance cameras and facial recognition software. Data that indicates non-compliance with legally prescribed social and economic obligations and contractual commitments are flagged up and aggregated on a government-wide level to determine the trustworthiness of companies and individuals. Such a trustworthiness score can fluctuate based on actions—going up for good deeds such as donating to charity and can go down for negative actions such as getting a speeding ticket.
Who can you associate with and not get docked on points in the social credit-score system? If someone writes a pro-life comment on your Facebook page, or if you advocate reductions in government spending, are those reasons to take points away from you?

This is not an irrelevant question. Forbes again:
If an individual has a lower social credit score, they might find their ability to purchase what they want such as high-quality goods or a new home to be restricted. They might also be prohibited from buying airline and train tickets or renting an apartment. Some people with low social credit scores can expect to be blocked from dating sites and not be able to enroll their children in a school of their choice.
Whenever the argument for privacy-invasion technology is built on the nothing-to-hide premise, the counter question should always be: 

Who decides if you have nothing to hide?

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