This post was first published on MSNBC.com.
In the wake of recent news that the NSA is spying on Americans, I have been particularly struck by the argument that "if you've got nothing to hide, you've got nothing to fear."
At first blush, this argument might seem sound – after all, if the government is merely conducting anti-terrorism surveillance, non-terrorists shouldn't be affected, right? But if you look more closely, you'll see this idea is full of holes.
The "nothing to hide" argument mistakenly suggests that privacy is something only criminals desire. In fact, we choose to do many things in private – sing in the shower, make love, confide in family and friends – even though they are not wrong or illegal. Who would not be embarrassed if all of their most intimate details were exposed? Fences and curtains are ways to ensure a measure of privacy, not indicators of criminal behavior. Privacy is a fundamental part of a dignified life.
The "nothing to hide" argument also has things backwards when it suggests that we are all worthy of suspicion until proven otherwise. Our system of justice treats us all as innocent until proven guilty. That applies in everyday life – when the government wants to spy on our daily activities and private conversations – as much as it applies in court. The state bears the burden of showing there is a good reason for suspicion, not the other way around. The refrain "nothing to hide" should not be a license for sweeping government surveillance.
Even if you think you have nothing to hide, you may indeed have something to fear. You might fear for yourself. As Kafka so chillingly illustrates in "The Trial," the prospect of unwarranted government pursuit is terrifying. Or you might fear for our society. Living under the constant gaze of government surveillance can produce long-lasting social harm: if citizens are just a little more fearful, a little less likely to freely associate, a little less likely to dissent – the aggregate chilling effect can close what was once an open society.
Government surveillance can also have a direct harm on others – think of human rights workers or journalists who must work with people who fear government scrutiny, not because of wrongdoing but for political reasons. Imagine a liberal group arguing that in the wake of the recent IRS scandal, it has nothing to fear because the IRS is interested only in conservative groups. This argument would be myopic, missing the wider risks of government overreaching. (Need proof? The IRS has now admitted that it scrutinized liberal groups, too.)
Perhaps you remain unconvinced. You are sure that you have nothing to hide and you never will. You think my concerns about chilled speech and democratic accountability are overblown, and you think privacy concerns are exaggerated and unlikely to affect you or our society in any case.
But – and this is the biggest hole in the "nothing to hide, nothing to fear" argument – how can you know for sure?
In fact, you have no idea if you have something to fear or not, because you do not know what the government does with the data it collects. If the government keeps secret what it is collecting about you or why, you cannot correct potential errors. And if you know anything about our justice system, you know that errors are common. Transparency is partly about making sure the government's actions – its outputs – can be evaluated; but transparency is also about making sure the government's information – its inputs – is accurate.
When the government operates in secret, it is hard to know anything with confidence. There is, however, one thing you can say with 100% confidence: we need to know more.
We need to know more about what information the government is collecting about millions of innocent Americans. We need to know more about the secret legal interpretations that the government is relying on to monitor our communications. And we need to know more about what the government does with the trillions of bits of electronic data it is amassing in its files. We need these answers because, even if we have nothing to hide, that does not mean we want to live in a society where nothing is private.
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News & CommentaryDec 2024
Civil Liberties
National Security
Where Defense Secretary Nominee Pete Hegseth Stands on Civil LibertiesWhere Defense Secretary Nominee Pete Hegseth Stands on Civil Liberties
The ACLU has more than 100 years’ experience holding power accountable. As President-elect Donald Trump rolls out his cabinet picks, we analyze how his nominee for secretary of defense will impact civil liberties. -
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.