Stuntz Responds: Further Thoughts on Privacy and Transparency

stuntz1.jpgA few weeks ago, I wrote a post criticizing an essay by William Stuntz (law, Harvard) in The New Republic. Today, he has responded to my post in The New Republic Online.

I’ll reply briefly here to a few of Stuntz’s points in response. Stuntz observes:

What are the worst things governments do to their citizens, the abuses that most characterize despots and dictators? For my money, spying and snooping are pretty far down the list. I’d rank these much higher: torture and other physical abuse, harassment of political and religious dissidents, and (most of all) arbitrary punishment–prison sentences handed down not because the prisoners did some terrible wrong or caused some horrible injury, but because they got on the wrong side of some local party boss.

Stuntz seems to assume that privacy and transparency are separate issues from the ones he lists above, but I see privacy and transparency as integral checks to prevent the kinds of abuses Stuntz mentions.

Stuntz then writes:

Solove says that it’s “silly” to say that we’re better off if the government listens to lots of phone conversations rather than only a few. If so, then current law is silly–for as he knows, the law today and for some time has drawn precisely that line. That is why the police can set up roadblocks and stop every car to check for drunk drivers, even though the cops have no reason to suspect any one driver. In my view, the same principle should apply to phone calls, and to DNA tests. If I understand the news stories correctly, nearly all the members of Duke’s lacrosse team were tested in connection with the ongoing Durham rape investigation. That strikes me as a very good thing: DNA tests reduce the odds that the guilty will escape punishment, and also reduce the odds that innocents will suffer it. Does Solove disagree?

I am not an absolutist when it comes to protecting privacy. I believe that the police should have the power to conduct a variety of investigations; they should be able to conduct DNA tests; they should be able to wiretap and engage in surveillance. The issue isn’t whether or not they should be allowed to do these things; rather, it is what kinds of oversight and accountability do we want in place when the police engage in searches and seizures. The police can employ nearly any kind of investigatory activity with a warrant supported by probable cause. This is a mechanism of oversight — it forces the police to justify their suspicions to a neutral judge or magistrate before engaging in the tactic. Driver checkpoints are limited in the kinds of questions the police can ask; in what they can stop motorists for; in how long they can stop people; and so on. The law allows for wiretapping but only under judicial supervision, procedures to minimize the breadth of the wiretapping, and requirements that the police report back to the court to prevent abuses. It is these procedures that the Bush Administration has ignored by engaging in the warrantless NSA surveillance. The question is not whether we want the government to monitor such conversations; it is whether the Executive Branch should adhere to the appropriate oversight procedures that Congress has enacted into law or whether it should be allowed to covertly ignore any oversight.


Regarding the DNA tests of the Duke lacrosse members, there was a legitimate reason to suspect them of a crime, so they should be tested. Moreover, DNA presents very different considerations from surveillance. Because current DNA typing uses only parts of DNA and cannot be used to ferret out medical histories and conditions (at least not currently), it might not present as substanial a privacy risk. In one post a while ago, I examined whether everybody should be included in a DNA database. As my post indicates, I believe that with the right set of protections, DNA identification can be successfully used. The question is not one of yea or nay to DNA databases, but of whether they can be implemented in ways with the appropriate oversight and protections. Other forms of surveillance poste different problems, such as the NSA surveillance, which is far more troublesome because of the kind of information it can reveal.

Turning to transparency, Stuntz argues:

As I understand American political history, we once had a political culture in which the legislative and executive branches operated much like appellate courts. There were public debates and votes that produced public decisions. But before those debates and votes, a good deal of discussion and analysis happened behind the scenes, outside public view. Not coincidentally, that style of governing seemed to accomplish more than the transparent government we usually see now. I’d like to return to that older style. For the life of me, I can’t understand why that makes me an enemy of freedom.

I disagree with several premises. I’m not so sure that we have progressed from a golden era of a highly functional government to the dark ages of a disfunctional one. The government has had its high points and low points in history, and I don’t think that transparency is the problem. The problems, as I see it, are excessively divisive partisan politics and a government that isn’t responsive enough to the people — it serves the interests of the rich and powerful, the big corporations, or the highly vocal interest groups. Closed doors facilitate the kind of Washington lobbying and special influence culture that often makes the government out of touch with the people it governs.

Finally, Stuntz observes:

Limits on government power that look wise when the other side holds the reins sometimes look foolish when your side is in charge. Better to put aside today’s partisan debates and think about the long term. Not all civil liberties are created equal; some matter more than others. If we protect the wrong ones too much, we’re liable to protect the right ones too little.

I have several responses. First, it doesn’t strike me as inevitable or likely that by protecting some civil liberties that we won’t protect others. If anything, Stuntz’s logic works better when it comes to particular security measures. We have limited money and resources, and thus we have to choose which security measures to adopt. In my view, we should be focusing on tracking down loose nukes and other serious threats; securing our ports; and so on. Engaging in random subway searches or spending millions of dollars on data mining systems that have no proven track record of actually working strike me as making the wrong security choices. Privacy and transparency force some debate into the mix when it comes to these measures, and this debate might steer the government away from some very poor security choices.

Second, limits on government power are especially important when one side controls many of the branches — whether it is your side or not. Stuntz may have legitimate gripes about a government that is not working as efficiently and intelligently as it should be, but the cause isn’t privacy or transparency. It is a two-party system that doesn’t adequately represent the views of many citizens. It is the constant game-playing and partisan rancor that persists in Washington. It is a system that faciliates gerrymandering to keep incumbents in power and less accountable for their actions. It is the profound influence of money in politics. It is politicians voting for measures not because they’re good for the country, but because they help out local interests or companies that make robust financial contributions. There’s a lot that is wrong with government, but it surely isn’t privacy and transparency.

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7 Responses

  1. Law Student '06 says:

    I think it’s too easy to look back to the “good old days,” making false assumptions about how the system worked, and how responsive the government was to its citizens. All the way back to the days of the Founders, politics involved various forms of negativity, muckraking, and corruption. Indeed, if one examines newspapers and political materials from the Revolutionary period forward, one sees that they are peppered with personal attacks, and forms of “yellow journalism.”

    Additionally, it would be unreasonable to expect that our government used to be impervious to lobbying and corporate influence. Just remember the Teapot Dome scandal, and President Harding’s administration. It was probably actually easier for “special interests” to exert influence over the political and governing process before the advent of new forms of media. I think there is a strong argument to be made that the political system is more open now than it ever has been. With the Internet and the constantly 24 hour cable news cycle, it is virtually impossible for reporters to miss something that happens. Additionally, any interested citizen can relatively easily find a wealth of information about the government’s operations by using a computer. Compared to one or two daily newspapers and a 30 minute television broadcast, we have access to more information now than ever.

  2. Adil Haque says:

    I’m puzzled by the following statement of Stuntz’s:

    “Legal incentives matter. At the margin, we would see more policing if policing were less expensive–and policing would be less expensive if the law regulated police evidence-gathering less extensively. While more policing, with more searches and seizures and more monitoring of city street corners, would represent a loss to individual privacy, it would be a great boon to the residents of poor city neighborhoods, who suffer both from too much crime and too much punishment. Good police work prevents crimes from happening, hence lowers the number of arrests, prosecutions, convictions, and prison sentences. We should want those things. I sure do.”

    In his original essay, Stuntz indicated that police monitoring of street corners in poor neighborhoods is both a problem in itself (because it skews arrests along racial and class lines) and a symptom of the differential incentives created by Fourth Amendment law (because rich people commit their crimes in their homes and poor people commit their crimes out in the open — his claims). Now he seems to be channeling the Kahan/Meares line that poor communities should welcome diminished constitutional protection in exchange for more crime suppression.

    Another puzzling thing is that no constitutional provision has been interpreted to limit police monitoring of city streets, so the example is a bit of a straw man. But an important one: Stuntz’s bottom line is that “[g]ood police work prevents crimes from happening.” Policing the streets prevents crime by creating a visible deterrent. By contrast, searches and seizures prevent future crime by detecting past crime, and increases rather than decreases the number of arrests, convictions, etc.. So the straw man bears virtually the whole weight of Stuntz’s argument.

    Finally, what would it mean to conduct “more searches and more seizures” in poor neighborhoods? Does this mean, as Kahan and Meares argue, that police should be free to randomly search apartments in public housing projects without individualized suspicion? Suspicionless stop-and-frisks? Perhaps in the long run such policies would reduce crime, arrests, etc. But if Stuntz is truly concerned with bringing disparate numbers of poor people and racial minorities to prison, would he really rather bring the prison to them? I can’t say, but I don’t know what else Stuntz can possibly mean.

  3. Dissent says:

    First: thank you to both you and William Stuntz for sharing your perspectives in such civil fashion.

    Second: I continue to have problems with Stuntz’s tendency to confuse correlation with causation. If government accomplished more when there was less transparency and less focus on privacy rights (and I’m not sure that this premise is even correct), then it is possible that yet another factor is responsible for all of those observations: that the government enacted legislation that would have the support of the judiciary (if not also the majority of the public). At the present time, we have the legislature passing legislation that is then essentially nullifed by the Executive via either signing statements or willful ignoring of the spirit and letter of the law. Under such conditions, it is entirely reasonable — and I think necessary — that both the public and the legislature insist on more transparency, not less.

    This administration had great support from the Congress and the public. It lost the support by not being transparent, not by being too transparent. When faced with an administration that neither the public nor the legislature trusts, the only response that makes sense is for greater — not less — insistence on respect for privacy rights and civil liberties.

    So I think Mr. Stuntz has it backwards and this administration could have gotten exactly what it wanted — and with good will — if it had not resorted to the tactics it used.

    If Stuntz were to have his way right now, I also suspect we’d see more laws restricting privacy-related rights without any real gain in national security. As an empiricist by training, I want to see data showing the cost-benefit ratio. If you want to tap my phone or monitor my email, show me how many terrorist attacks you have prevented because of your strategy — and show me how we got the most ‘security bang for our buck’ by using that strategy. Reducing privacy rights and transparency does not automatically translate into better government or better national security. In the case of this administration, the lack of transparency about the administration’s determination to go to war in Iraq and its desperation to find excuses led to Congress being misled about the intelligence in the run-up to Iraq. The war in Iraq may even stand as the greatest rebuttal to Stuntz’s argument that less transparency is better.

    In any event, we still don’t know what data the NSA has collected on each of us and what they have done with the data. And until I know, I will not trust this government as far as I can throw them.

  4. With the Internet and the constantly 24 hour cable news cycle, it is virtually impossible for reporters to miss something that happens.

    With all due respect, Lawstudent06 is smoking the fine crack.

    Reporters missed Bush’s trip to Iraq; the TSA’s deal with the CDC, the utter failures of the administration to report what CIA was saying, etc, etc, ad naseum.

  5. Mark says:

    I continue to have problems with Stuntz’s tendency to confuse correlation with causation.

    I think you’ve hit the nail on the head. What Stuntz seems to do quite a lot of–I see this in both the TNR piece and in his Harvard Law Review piece on criminal procedure (the one Orin Kerr keeps plugging)–is to 1) identify some element of current law he doesn’t like, 2) identify some social problem, and 3) assert a cause-effect link between 1 and 2.

    What he does not do, even with a very lengthy law review article, is support his assertion empirically. All he does–I noticed this especially in that TNR piece–is support his generalization with more generalizations.

  6. Law Student '06 says:

    With all due respect, Lawstudent06 is smoking the fine crack.

    Reporters missed Bush’s trip to Iraq; the TSA’s deal with the CDC, the utter failures of the administration to report what CIA was saying, etc, etc, ad naseum.

    To clarify, what I meant by my comment was that given the 24 hour news cycle, and the incredibly large number of people in the media industry today (certainly much larger than it was 50 years ago, much less 100 years ago), many fewer stones are left unturned. It is undeniable that there is much more news reported, even if much of it borders on the mundane.

    That said, the media obviously cannot know something that is kept secret. Additionally, just because the media does not focus on something, as long as something is public, the information is out there. It might not be plastered all over, but it’s there.

    No crack here, buddy.

  7. Kyle says:

    This, the end of the final paragraph: “Stuntz may have legitimate gripes about a government that is not working as efficiently and intelligently as it should be, but the cause isn’t privacy or transparency. It is a two-party system that doesn’t adequately represent the views of many citizens. It is the constant game-playing and partisan rancor that persists in Washington. It is a system that faciliates gerrymandering to keep incumbents in power and less accountable for their actions. It is the profound influence of money in politics. It is politicians voting for measures not because they’re good for the country, but because they help out local interests or companies that make robust financial contributions. There’s a lot that is wrong with government, but it surely isn’t privacy and transparency.”

    …says, fairly concisely, what I think most Americans feel, a lot of Americans don’t understand, and what the Democrats should be saying as we near the midterm elections.

    This was my first time reading your post. It won’t be my last.