Nothing to Hide: The False Tradeoff Between Privacy and Security.

• Author: Hartzog, Woodrow
• Position: Book review

NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY. By Daniel J. Solove. New Haven and London: Yale University Press. 2011. Pp. ix, 210. Cloth, $25; paper, $18.

INTRODUCTION

The resolution of a debate often hinges on how the problem being debated is presented. In communication, sociology, psychology, and related disciplines, this method of issue presentation is known as framing. (1) Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. (2) For example, people are more willing to tolerate rallies by controversial hate groups when such rallies are framed as free speech issues, rather than disruptions of the public order. (3)

Consider two questions: As guardians of civil rights, how should judges protect our privacy against the ever-increasing scope of government surveillance? When should judges defer to other branches of government that are better suited to understand when surveillance is necessary to ensure our national security? While these questions are constructed differently, disputes involving privacy and security can utilize either one. Yet the interchangeability of these questions should not be taken to mean that their construction is neutral. Indeed, the choice of which question to ask may predetermine the outcome of the dispute.

Judges, lawmakers, and the public all use and are influenced by frames. (4) This influence is particularly important in the battle for privacy and security. To date, the dominant frame pits security against privacy. Those who support government collection and analysis of personal information in the name of security often justify any accompanying threats to privacy with some form of the argument, "I've got nothing to hide." This statement implies that privacy is only needed if a person is concealing wrongdoing. By this account, privacy must yield to security measures because privacy appears less justified than security. (5)

In his important new book, Nothing to Hide: The False Tradeoff Between Privacy and Security, Daniel Solove (6) argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. Solove understands that privacy is far too vital to our freedom and democracy to accept its inevitable demise.

The central thesis of this Review is that Solove's polemic is a strong and desperately needed collection of frames that counterbalances the "nothing to hide" argument and other refrains so often used in privacy disputes. Nothing to Hide is succinct and accessible. In his ambitious quest to concisely respond to a wide range of problems, however, Solove risks leaving the reader unsatisfied, wanting more details about his proposals to untangle the tension between privacy and security. (7) Yet this critique does not detract from the importance of this book as a collection of frames to counter a popular narrative in the privacy and security debate.

Part I of this Review discusses the central arguments of the book by examining frames that are contrary to the commonly adopted narratives. Instead of reviewing the numerous arguments in the order in which they appear in the book, this Review consolidates the arguments into groups of frames, such as the "judges as guardians" frame, the "privacy as a societal value" frame, and the "fruitless focus" frame.

Part II addresses some of the "security side" arguments that deserve more attention, including the framing of proposed security measures as feasible or works in progress that must be deployed in order to be improved on. Part III proposes several additional frames that support the basic premise of Nothing to Hide, including confidentiality, obscurity, and the commonalities between privacy and security.

1. NOTHING TO HIDE

   Nothing to Hide attempts to address four main concerns and is organized accordingly in four parts: (1)how lawmakers and the public should assess and balance the values of privacy and security; (2) how the law should address matters of national security; (3) how the Constitution should protect privacy; and (4)how the law should cope with changing technology. The book is designed so that one can read the chapters independently of one another.

   This book has been published at a time when the debate regarding privacy and security seems more prominent than ever. Multiple privacy-related statutes have been proposed in Congress, (8) and Congress has held multiple hearings on the state of privacy. (9) The media have devoted substantial attention to the importance and erosion of privacy in the information age. (10) A number of high-profile privacy violations--including invasive body scanners at airports, the massive scope of government surveillance of internet and phone communications, and large-scale data breaches involving personal information-have impacted enormous segments of the American publicity. How people frame all of these issues affects how the issues are debated.

   1. A Brief Exploration of Framing

      Framing offers a way to articulate the "power of a communicating text." (12) According to Robert Entman, "To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described." (13) By increasing the salience of certain bits of information, frames enhance the probability that receivers will perceive the information in a certain way, discern a particular meaning, and process it accordingly. (14)

      While frames do not guarantee an influence on audience thinking, frames that comport with the existing schemata in a receiver's belief system can be particularly effective. (15) Daniel Kahneman and Amos Tversky offered what is now likely the most well-known example of how framing works by highlighting some features while omitting others. (16) In an experiment, the researchers asked test subjects the following hypothetical:

      Imagine that the U.S. is preparing for the outbreak of an unusual Asian disease, which is expected to kill 600 people. Two alternative programs to combat the disease have been proposed. Assume that the exact scientific estimates of the programs are as follows: If Program A is adopted, 200 people will be saved.... If Program B is adopted, there is a one-third probability that 600 people will be saved and a two-thirds probability that no people will be saved.... Which of the two programs would you favor? (17) Here, 72% chose Program A. (18) Kahneman and Tversky followed this experiment with another that offered mathematically identical options for treating the same situation, but the programs were framed in terms of likely deaths rather than lives saved:

      If Program C is adopted, 400 people will die .... If Program D is adopted, there is a one-third probability that nobody will die and a two-thirds probability that 600 people will die. (19) With this alternative framing, 22% chose Program C, even though 72% of the previous experimental group selected Program A, Program C's mathematical twin. (20) In short, the alternative framing resulted in a reversal of the percentages.

      In discussing this famous experiment, Entman stated, "As this example vividly illustrates, the frame determines whether most people notice and how they understand and remember a problem, as well as how they evaluate and choose to act upon it." (21) Perhaps one of the most important functions of frames is that by calling attention to particular aspects of a described reality, they, by construction, direct attention away from other facets. (22) According to Entman, this logical sleight of hand means that "[m]ost frames are defined by what they omit as well as include, and the omissions of potential problem definitions, explanations, evaluations, and recommendations may be as critical as the inclusions in guiding the audience." (23)

      The omissions of the current framing of the privacy and security debate are what motivate Nothing to Hide (p. 24). Framing the debate in terms of security versus privacy ignores many alternative aspects of the reality of the debate. Courts, legislators, scholars, attorneys, and the media fixate on questions of whether privacy should be protected, at the expense of novel approaches as to how privacy should be protected (p. 3). The more this narrative continues, the more entrenched it becomes. Thus, the framing of a debate is not an insignificant matter. (24) The choice of words and construction of frames can have significant consequences for legal disputes and, consequently, our civil rights. (25) Some frames, such as the "nothing to hide" argument, can take hold in certain contexts and can be very difficult to shake or balance (pp. 21-32). This is why alternatives to the current narrative, like those that Solove offers, are so important in the fight to frame privacy.

   2. Nothing to Hide's Framing of Privacy

      Solove's body of work displays a keen understanding of how the privacy-security debate deeply influences government collection and use of personal information. Nothing to Hide centers on a major problem of the debate, which is that privacy too often needlessly loses out to security (p. 2). One reason for this is that security is articulated as the need to protect "life and limb," while the notion of privacy rights is more amorphous. Solove finds that under the common narrative, people believe that they must sacrifice privacy in order to be more secure (pp. 21-24, 33). And advocates of certain security measures make powerful arguments to encourage others to accept this trade-off (p. 2).

      This is where framing theory comes into play. Solove notes that people have incorrectly framed the debate between privacy and...