Governments at the local, state, and federal level increasingly collect troves of sensitive information about where we go, what we read, who we know, what we buy, and more. Some people say they don't care about this silent and ever present surveillance. They have nothing to hide, they say.
But acquiescing to losing control over information about you is effectively rolling over and accepting the fact that untold numbers of people and institutions, not you, control your life. Information is power. When people behind closed doors possess information about your private life, usually unbeknownst to you, they have the ability to wield substantial power to control and manipulate you, often without your knowledge.
"I am not so interesting," you protest. Maybe you're right. The fact that unknown numbers of unknowns have the knowledge and therefore the power to hurt you doesn't mean they'll always use it (or that they'll use it against you). But do you want to run that risk? Is that a risk you are willing to concede about your children's privacy, or your parents'? Is that a risk you are willing to accept for the climate activists fighting dirty energy subsidies, or the young kids in your neighborhood getting shaken down by the police?
Even if you lead a quiet life, and don't meddle in politics or challenge powerful people (or are lucky enough to never have to deal with fracking on your neighbor's land, for example), are you willing to run the risk that someday you might end up in a power struggle--however big or small--with someone who controls or can access sensitive information about your private life? (If you have ever dated or would ever consider dating anyone who works in IT at a major tech company, or for law enforcement or in intelligence, you should be particularly wary.)
If you aren't doing anything wrong, what do you have to hide? Here is a very, very incomplete list:
- Sexual text messages (aka sexts) you send to lovers, partners, and spouses;
- Emails to lawyers containing information about ongoing litigation against any part of the government, or emails describing any impropriety like an affair or something as simple as playing hooky from work and calling in sick;
- Phone calls and visits to abortion clinics, sexual health centers, gun stores, LGBT community centers, union shops, domestic violence organizations, suicide hotlines, and journalists;
- Banking or credit card records showing that you purchased sex toys, gonorrhea medication, and four hundred dollars worth of stuff from a Furry website, or donated to non-profit organizations like the ACLU or Planned Parenthood;
- Internet metadata revealing your porn viewing habits and search terms, for example "herpes symptoms", "what to do if you think your boyfriend is cheating on you", "how to cheat on your boyfriend and get away with it", or "I wish I had never had kids."
As you can see, there's plenty of information floating around in the ether, held by private corporations and collected by government agencies (often without warrants!), that you want to remain private. You aren't breaking the law and you don't deserve to be violated, but this information is not under your control.
All it takes for your privacy to be violated in a way that could get you fired from your job, exiled from your community, in trouble with your friends or family, or kicked out of your house is for one of the potentially millions of people who have access to this kind of information to reveal it to someone you'd rather not see it. You might never even know what happened, but suddenly you are out of a job, or find yourself shunned by coworkers or friends.
If you think this is an impossible set of scenarios, read up on the history of the FBI under J. Edgar Hoover, a man infamous for his tyrannical obsession with embarrassing and slandering his personal and political enemies. The information he provided, in secret, to Joseph McCarthy's House Un-American Activities Committee got many law-abiding people fired from their jobs, and in far too many cases ruined their lives.
Some people say that privacy is obsolete because many of us blab on and on about our every waking thought on Twitter, Facebook, and other social media sites. But that assessment belies a fundamental misunderstanding about what privacy means.
Privacy isn't the same as secrecy. Privacy is about controlling information about you, including who knows what, under what circumstances, and when. Privacy is about being in control and in charge of your own life, and having the power to shape other people's perceptions of you. Today, we are effectively at the mercy of millions of unknown people who lord over us the power to destroy our reputations, relationships, and professional lives with the click of a button.
Do you still feel like you have nothing to hide?
See also this post on the "nothing to hide" argument by Jay Stanley.
This is an edited version of a post first published on the ACLU of Massachusetts' Privacy SOS blog.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.