William Stuntz’s Misguided Theory of Privacy and Transparency

stuntz1.jpgWilliam Stuntz (law, Harvard) has long been advancing thoughtful provocative ideas about criminal procedure. I’ve always found Stuntz to be insightful even when I disagree (and I have disagreed with him a lot). Stuntz’s recent essay in The New Republic entitled Against Privacy and Transparency has me not just disagreeing, but doing so rather sharply.

Stuntz begins with an interesting historical generalization. He argues that privacy and transparency (open government) “seem like quintessentially liberal ideas,” although historically they had long been conservative ideas. Stuntz notes that the call for greater government transparency “flowed from pro-business conservatism” because it made it hard for an activist government to alter the status quo. He argues that privacy helped make it hard to regulate big business during the progressive movement in the early 20th century. Stuntz observes: “Privacy, once the right’s favorite right, became the left’s friend thanks to the civil rights movement. In a time when J. Edgar Hoover was spying on Martin Luther King Jr. and Southern sheriffs were enforcing America’s own version of apartheid, police snooping had a decidedly right-wing cast.” As for transprency, “Vietnam and Watergate made the left suspicious of government power generally and executive power in particular. When liberals looked for a way to make Richard Nixon’s imperial presidency a little less imperial, they stumbled on weaponry that Taft’s Republicans had used against Harry Truman: force the president to disclose as much as possible.”

The historical picture is far more complicated than the one Stuntz paints. Justice Louis Brandeis, one of the leading liberals in the early 20th century, was one of the main proponents of privacy and transparency, and he was strongly in favor of New Deal politics. Indeed, it was Brandeis who wrote the famous article, The Right to Privacy in the Harvard Law Review that gave birth to the privacy torts; it was Brandeis who penned the powerful dissent in Olmstead v. United States, 277 U.S. 438 (1928) where the Court held that the Fourth Amendment didn’t cover wiretapping; and it was Brandeis who wrote the famous line in favor of transparency, “Sunlight is said to be the best of disinfectants.” Stuntz is right when he acknowledges that privacy and transparency have strong roots in conservative thinking. But they also have strong roots in liberal thinking, and they are not concepts that have been passed like a baton from the conservatives to the liberals.

But this is not the part of Stuntz’s essay that makes my blood boil. It is his main thesis, where he argues:

Today, the danger that American democracy faces is not that rulers will know too much about those they rule, nor that too many decisions will be made without public scrutiny. Another danger looms larger: that effective, active government–government that innovates, that protects people who need protecting, that acts aggressively when action is needed–is dying. Privacy and transparency are the diseases. We need to find a vaccine, and soon.

Huh? The problem with our government stems from privacy and transparency? To justify this startling conclusion, Stuntz argues that:

[D]ifferent forms of evidence-gathering are substitutes for one another. Anything that raises the cost of one lowers the cost of all others. The harder it is to tap our phones, the more government officials will seek out alternative means of getting information: greater use of informants and spies, or perhaps more Jose Padilla-style military detentions with long-term interrogation about which no court ever hears, or possibly some CIA “black ops,” with suspected terrorists grabbed from their homes and handed over to the intelligence services of countries with fewer qualms about abusive questioning. In an age of terrorism, privacy rules are not simply unaffordable. They are perverse.

Stuntz’s logic seems to be that we should let the government invade our privacy to a significant degree, because if we don’t, the government will resort to even worse things. The argument that if you stop somebody from doing something bad, they’ll do something even worse can be used in almost any situation to defeat almost any law or regulation. Using this logic, one might argue that we should let thieves steal, because if we don’t, then they’ll resort to even worse crimes. The argument proves way too much, and as a result, winds up proving nothing in the end. Moreover, the kinds of information gathering techniques Stuntz lists as examples of “alternatives” rest on very uneasy legal and constitutional ground. Perhaps one of the reasons they have occurred is because of a lack of adequate transparency and a lack of sufficient checking of the Executive Branch. But Stuntz, however, sees transparency as part of the problem.

Stuntz has many more arguments which are worth responding to.


He argues that transparency makes it harder for government officials to do something, and doing something is better than doing nothing: “For most officials most of the time, the key choice is not between doing right and doing wrong, but between doing something and doing nothing. Doing nothing is usually easier–less likely to generate bad headlines or critical blog posts.”

Is this really true? Government officials often always try to do something — the problem is that the “something” they try to do isn’t the result of an informed and thoughtful policy analysis but often a cheap gimmicky solution that will grab headlines. Stuntz frequently complains (correctly, in my opinion) of the excessive increase in criminal laws, and in this essay, he writes that “American criminal codes have metastasized.” Why has this happened? It’s not the result of the government doing nothing. It is because of the strong sentiment that the government must do something, and it’s easy to enact more criminal laws. So the choice for officials isn’t between doing something or nothing — it’s between doing something symbolic versus doing something meaningful but more nuanced and complicated. When it comes to security, the symbolic measures often have high civil liberty costs with very little security payoff. Left unexplored are the many more meaningful alternatives where the benefits might outweigh the costs. Perhaps transparency and privacy are just what the doctor ordered — they make it harder for government officials to resort to quick easy measures and force them to think harder and consider measures that will have a security payoff that outweighs the costs. I have blogged a lot about these issues in connection with the NYC subway searches:

* NYC Subway Searches Upheld: A Critique of the Court’s Decision

* Rational Security vs. Symbolic Security

* Subways, Searches, and Slippery Slopes

Stuntz goes on to argue that we shouldn’t restrict government information-gathering but should focus on restricting the use or disclosure of information after the government gathers it. Stuntz begins by observing:

Every year, tens of millions of Americans fill out their tax returns, giving the IRS a tremendous amount of information about their finances. The affront to privacy mostly goes unnoticed. Why? Because anonymity matters more than privacy.

I don’t think that the issue here is anonymity. It’s confidentiality. There are strict rules and strong expectations that tax information will be kept confidential. Also, filing tax information is mandatory. Even if a person cares deeply about her privacy, if she doesn’t turn over tax information to the IRS, she’ll wind up in jail. So I don’t know what Stuntz’s proposition about filing tax returns really proves other than the fact that people don’t want to go to prison.

Stuntz then states that two “key propositions follow” from this insight into our filing our taxes as required by law:

First, the more people whose lives the government invades, the better. When targets are few, anonymity disappears. If there were 100 tax forms filed instead of 100 million, the IRS might do more snooping than is healthy. The more phones are tapped, the less freedom is threatened.

So we should want the government to invade our privacy more in order to protect it? Stuntz’s argument may sound like a profound paradox, but it is really little more than doublespeak. This statement might have been true in the days long before computer technology and before Herman Hollerith invented the punch card machine. But in today’s day and age, we have sophisticated computer technology that can analyze zillions of bits of data in nanoseconds. As Bob O’Harrow notes in his book No Place to Hide (2005), the database company ChoicePoint has “more than 250 terabytes of data regarding the lives of about 220 million adults.” (p. 145). Modern data mining techniques make it much less likely that a piece of data will exist as a needle in a haystack. So I find it almost silly when Stuntz says that more wiretapping and more invasive information gathering equals less of a threat to freedom.

Stuntz goes on to argue:

Second, the initial invasion of privacy isn’t the problem; subsequent disclosure is. The true image of privacy intrusion is not some NSA bureaucrat listening in on phone calls, but rather Kenneth Starr’s leaky grand jury investigation, which splashed a young woman’s social life across America’s newspapers and TV screens. That is the nightmare worth protecting against. The best way to stop the nightmare from happening is to limit not what information officials can gather, but what they can do with the information they find.

Why isn’t the initial invasion of privacy the problem? Stuntz mentions the leaks from Kenneth Starr’s investigation as the big problem, but what about calling Monica’s mother to testify, which outraged many? What about the subpoenas to Kramerbooks for Monica’s book purchases? There were many dimensions of Starr’s investigation that struck people as problematic — they brought attention to the extremely powerful tools currently in a prosecutor’s arsenal. Moreover, there are many forms of problematic government information gathering. Would J. Edgar Hoover’s dossiers have posed no problem so long as he couldn’t leak them? Why not put a surveillance camera in all of our homes so long as the government is limited in its use and disclosure of that data? It is certainly true that the Fourth Amendment focuses heavily on government information gathering and little to none on how the government uses the information once it has been collected. But why not regulate both collection and use?

Stuntz argues that a better approach to transparency is to “require limited disclosure: say, to the key congressional committees and to any courts designed to supervise the relevant process.” This is what the law does with regard to foreign intelligence gathering — the Foreign Intelligence Surveillance Act (FISA) requires a court order from a secret court to engage in surveillance. The Bush Administration, however, has violated the FISA and has authorized warrantless wiretaps by the NSA. And it has done so through a lack of transparency. It is only now that the information about the NSA surveillance has been released that the public has the opportunity to analyze the merits of the Bush Administration’s actions. As for congressional oversight, recent events make me skeptical of Congress serving as a meaningful check on the Executive Branch. Perhaps when Congress is controlled by a different party than the Executive it can function as a better check, but one of the lessons we’ve been learning over the past decade or so is that Congress doesn’t care to do much checking when the White House is occupied by the same party.

Stuntz concludes his essay by observing: “We have too much privacy, and those who govern us have too little.” Unfortunately, Stuntz has it exactly backwards.

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21 Responses

  1. cdj says:

    This is America. It’s not that doing something wrong is a problem – it’s that it gets publicized.

    Americans clearly don’t want an America any longer – the responsibility of freedom is too much for them. That’s the only explanation for the popularity of rightwingerism

    It was a good experiement tho – who could’ve predicted in advance that Americans would be so craven as to advocate against their own rights?

  2. swamp dweller says:

    Not suprised to see Stuntz selling his nonsense in the New Republic. His notion that it’s better to have the government doing something rather than nothing might have some merit if it wasn’t for the fact that BushCo Inc. happens to be our government at the moment.

    Oy…

  3. Ti-Guy says:

    I see the generalised American rightwinger disease of being unable to differentiate between sophistry and reason reaches all the way up to Harvard these days.

    You guys are so doomed.

  4. Dissent says:

    Stuntz asserts:

    Every year, tens of millions of Americans fill out their tax returns, giving the IRS a tremendous amount of information about their finances. The affront to privacy mostly goes unnoticed. Why? Because anonymity matters more than privacy.

    To which you reply, “I don’t think that the issue here is anonymity. It’s confidentiality. There are strict rules and strong expectations that tax information will be kept confidential. Also, filing tax information is mandatory.”

    I disagree with you both (but with Stuntz moreso than you). I don’t think the underlying issue with respect to filing detailed tax returns is either anonymity or confidentiality. I think that the majority of Americans recognize and accept the legitimate role of government in raising revenues through taxation. We recognize it and accept it because it was hammered into our heads in school about “No taxation without representation,” and most of us view our current system as legitimate and consistent with the intention of the Founding Fathers. Warrantless wiretaps, however, do not appear to be the intention of the Founding Fathers or of Congress, and hence are rejected by many conservatives and liberals.

    Stuntz’s premise is wrong and so are his resulting propositions that the more lives that are invaded, the better, and that we shouldn’t try to limit information-gathering but simply limit disclosure.

    http://www.pogowasright.org/dissent/dissent.html

    Chronicles of Dissent

  5. I’m presently taking criminal procedure using Stuntz’s casebook and his TNR article follows a track I’m now familiar with–Stuntz has yet to meet a counter-intuition he won’t embrace. His argument that the 4th Amdt is inherently classist in providing more protection to the rich who can afford to be less visible to the police is ridiculous–when in history have the poor ever been on equal footing as the rich in terms of privacy of this sort? But blaming the 4th Amdt for pre-existing socio-economic realities is either intellectually dishonest or just stupid. It’s like blaming hospitals for sickness.

    His rationale for justifying more gov’t secrecy is that gov’ts are inherently stagnant in the ‘idea factory’ sense, and a system where gov’t could operate less transparently would allow it to be more bold, creative and efficient because it would no longer be forced to defend bad decisions, since the governed wouldn’t know of them. This argument is a lot scarier than the privacy argument. Stuntz relies on deeply flawed presumptions about human nature and how it confronts power. Benevolence is not a byproduct of consolidated power and secrecy.

    While it’s true that much debate over gov’t activity becomes a who-knew-what-when debate–sadly drifting away from the substantive debate–permitting the gov’t to avoid who-knew-what-when debates will not result in ‘better ideas’ (Although Stuntz’s example of ‘which energy lobbyists were in the room with Cheney’ is telling because Stuntz obviously can’t even see that the question of whether oil companies had so large a hand in crafting our energy policy IS substantive rather than procedural).

    The current administration is not engaged in tangential non-substantive debate as a result of its shyness or lack of ideas. Indeed, it’s precisely its *bad* ideas that have forced it into such tangential debate, as Stuntz defines it. More secrecy would merely permit bad ideas to flourish like undetected cancer–bad ideas will merely become worse ideas, as links back to the public are removed and power is further consolidated.

    While he doesn’t explicitly saying so, Stuntz seems to be suggesting a repeal of both the 4th and 5th Amdts based on the ‘9/11 changed everything’ rationale, and replacing those Amdts with a ‘Trust Us’ model. Stuntz isn’t clear on how this would work out, but he seems to believe that if we allow the gov’t to invade our privacy more, and become less transparent, the gov’t can somehow be limited as to the ways in which it could use it, or would have less incentives to use it. This stands reason on its head. Our Constitution wisely doesn’t trust politicians, and neither should we, knowing what we know at this point in time.

    No doubt many on the right will take comfort in Stuntz’s article–Big Brother is fine if he’s part of your family. But this particular administration, whose reign has been consistently marked by obsessive secrecy, Constitutional power grabs, and actual invasions of actual privacy, is a living lab experiment on just why Stuntz couldn’t be more off base. It’s bad enough we have to watch Gonzalez appear before the Senate every few days to reinterpret the White House’s eroding Constitution model. Based on what we’ve seen so far, there is no reason to believe that when expressly handed the power it seeks, it would act benevolently, competently, or wisely.

  6. It was a good experiement tho – who could’ve predicted in advance that Americans would be so craven as to advocate against their own rights?

    The founding fathers could have — and did. Repeatedly.

  7. Zwack says:

    Dissent said…

    We recognize it and accept it because it was hammered into our heads in school about “No taxation without representation,”

    Well, if that was the case then legal immigrants wouldn’t have to pay taxes. I’m a legal permanent resident. I pay taxes. I don’t get to vote.

    Not being able to vote makes some sense. Foreign countries can’t influence elections by just dumping a boatload of tourists at the polling station… but if you truly believe that I should have representation then you should be campaigning for it.

    The other alternative is equally attractive to me. I wouldn’t mind not paying taxes. I’m not sure what federal services I use for my tax dollars, but surely you could just raise taxes on those people who get to vote to cover it… or increase the national debt. It would probably have less of an effect on the economy than the war on terror/Iraq.

    I pay taxes because it is one of the conditions of living here, not because I expect it to pay for services, or because I like the government, but because it is expected.

    Z.

  8. winsnomore says:

    You are dead wrong about Tax issue.

    The biggest abuser of tax filings is the government. They are routinely used by FBI in background checks.

    Once the data exists, there can be NO privacy. Actually most folks confuse what privacy means and I think you are one of them.

  9. Hasan says:

    Z,

    Is there a country in the world where there’s tax discrimination based on citizenship? I don’t think so. Like you, I’m a foreigner. I recognise the government requires revenues to carry out its programmes, however horrible they are. I’d be more comfortable if the US merely changed its spending priorities.

  10. Alastair says:

    Modern data mining techniques make it much less likely that a piece of data will exist as a needle in a haystack. So I find it almost silly when Stuntz says that more wiretapping and more invasive information gathering equals less of a threat to freedom.

    Agree totally. In fact, it is the truth of this statement that Stuntzs’ argument depends on. If we can’t find the terrorists in the proverbial haystack of personal information, what is the point of collecting the personal information in the first place?

    Maybe Stuntzs believes that technology can only be used to locate bad guys, and that good guys are rendered magically “anonymous”? (as you note, Stuntzs confuses anonymity with confidentiality) If so he is seriously mistaken.

  11. fishbane says:

    Another error Sutntz makes is confusing the government with the governed. I may be old fashioned, but there was this defining moment back in the day, about the time the U.S. was formed…

    Assuming government will act in the interests of the country is silly. An overlapping set of interests all act self-interestedly, and set terms of rule enforce short sightedness.

    If data will be collected, then it should be public. Afterall, such a windfall of data will certainly enable new businesses, which wil finance even wider wars against whatever threat is being talked up today (not to mention the industries of Wars On Whatever past).

  12. Too scared to say says:

    Hasan,

    Your implication that few if any countries have tax discrimination based on citizenship is correct. But America should – you would think – know better. It was built from stuff like ‘no taxation without representation’. It is one of the few nations – maybe the only nation – that clearly articulates a belief in liberty as an unalienable right.

    The problem is, it seems to have forgotten that. It’s not clear it any longer has the “right” to claim to be the Land of the Free. Increasingly, it’s just like the sad old European democracies.

    Such a shame.

  13. Reid Orsten says:

    “…and set terms of rule enforce short sightedness.” (fishbane)

    Perhaps the easy solution to that is to eliminate second terms. If there were no need to fight for a second term, maybe policy decisions would extend beyond the first.

  14. Tim Patterson says:

    Tim Patterson

    13482 US Hwy # 6,

    Plymouth, Indiana 46563

    574-784-3310 tjpclp@att.net

    This is in response to Professor William J. Stuntz’ offering in your April 17th issue, as submitted to TNR this day.

    The burden of Government is to manage the entire body politic (Stuntz’ analogy) and not just the diseases and injuries that must be continuously overcome. To excuse poor leadership because of the ‘disease’ of privacy, dismisses the remaining tenets of liberty and is a misdiagnosis. To characterize transparency in Government as an impediment to effective leadership is to accept political laziness that avoids the full measure of our Social Contract.

    Any threat to the body, whether complex or visceral, internal or external, must not be made an ally to reduce the Government’s burden of constitutional responsibility to the People. The same constitution also tasks the People to bear the burden of scrutinizing our Government’s performance, not the inverse.

    Thus, while leading well and constitutionally, during war, is an Executive burden, the People, Congress and Supreme Court also bear an equal responsibility to hold the Executive accountable, publicly, and without tolerating a cover of darkness, conveniently justified by national security.

    Scrutiny always illuminates, tests our democracy and helps discover the latent cancers of dictatorship and fascism from which we have no special immunity, save through the preservation of dissent and liberty.

    Professor Stuntz’ expectations of Government are too lenient.

  15. Joan Deibert says:

    Very interesting article. Reason it was found, looking at articles regarding my cousin Jose E. Stuntz (COL.USAF Ret)., and saw this one authored by William Stuntz (name of my cousins youngest son). Thus with the name of Stuntz – we must be related. My grandfather was John Edward Stuntz who died in November 1957. He and his wife moved from Havana, Cuba in 1954 but he was originally from Ohio.

  16. Joan Deibert says:

    Very interesting article. Reason it was found, looking at articles regarding my cousin Jose E. Stuntz (COL.USAF Ret)., and saw this one authored by William Stuntz (name of my cousins youngest son). Thus with the name of Stuntz – we must be related. My grandfather was John Edward Stuntz who died in November 1957. He and his wife moved from Havana, Cuba in 1954 but he was originally from Ohio.

  17. Joan Deibert says:

    Very interesting article. Reason it was found, looking at articles regarding my cousin Jose E. Stuntz (COL.USAF Ret)., and saw this one authored by William Stuntz (name of my cousins youngest son). Thus with the name of Stuntz – we must be related. My grandfather was John Edward Stuntz who died in November 1957. He and his wife moved from Havana, Cuba in 1954 but he was originally from Ohio.

  18. Donna Stuntz Gacek says:

    My brother commented that he had looked on the internet and had found several Stuntz names and I was just curious to see if somehow we were related. Our father was Howard Stuntz, who was the son of Charles and Mary Stuntz from Germany. My brother also sent me a copy of the Department of Commerce-Bureau of the Census Fourteenth Census of the United States listing their information.

    I printed off your article of Misguided Theory of Privacy and Transparency and will read it. Thanks for your time and if you have a moment, please email me.

    Donna Stuntz

  19. Donna Stuntz Gacek says:

    My brother commented that he had looked on the internet and had found several Stuntz names and I was just curious to see if somehow we were related. Our father was Howard Stuntz, who was the son of Charles and Mary Stuntz from Germany. My brother also sent me a copy of the Department of Commerce-Bureau of the Census Fourteenth Census of the United States listing their information.

    I printed off your article of Misguided Theory of Privacy and Transparency and will read it. Thanks for your time and if you have a moment, please email me.

    Donna Stuntz

  20. Tom Renda says:

    I think that Professor Stunz has an interesting point when he says that “privacy” (and by implication civil liberties) are not inherently liberal values (or at least, leftist values). If one looks at Europe, the left does not generally agitate for freedom from government oversight. It’s the right that does so.

    On the larger issue, I also agree that the gathering of large amounts of data by government should not be viewed as an affront to civil liberties. Nor should mine that data, when circumstances require doing so for security reasons.

    This issue was brought home in a Frontline episode on data mining conducted to stop a suspected terrorist attack on Las Vegas in 2003. As usual, the ACLU types got their knickers in a twist that the FBI was poring all over everybody’s hotel registrations, car rental records, flight data, and the like, looking for patterns that might lead them to a terrorist. As it tuned out, it was a false alarm. And no individuals were arrested (or even interviewed) by the FBI as a result of their investigation. Nevertheless, this supposed “invasion” of our privacy was held up as some horrid violation.

    Bull!

    What is particularly amusing is that most (if not all) of the Las Vegas data WAS NOT PRIVATE. If I choose to register at a hotel with Suzie the Floozie, that is not a private act. I might not like it, but it is a public act. The hotel lobby is public. The hotel has my name. They can do with it as they please. Usually, they sell it to a mass marketing list. But if the FBI asks for it, hey, too bad.

    Don’t like it? Or maybe you don’t like the security cameras that record public acts (and protect us when we identify criminals caught on camera)?

    Fine. You have the right.

    To stay home.

    You have the right to stay home.

    As for utilizing non-public data, I believe there is no reasonable expectation that data gathered by one branch or agency of government will not be used by another. Capone was investigated by the FBI for running gambling, prostitution and liquor rackets. But he was prosecuted with tax records from the IRS.

    No criminal has a right to expect that one branch of the government will not obtain, and utilize, information from another branch of government. It’s not in the constitution, and it does not serve our interest.

    Anyone who feels otherwise clearly has not watched enough Star Trek.

    “The needs of the many outweigh the needs of the few.”

  21. Scott Edmiston says:

    Mr. Solove, A thoughtful and sharp reply to the late great Stuntz; however, I think your comment misreads him. Stunz was surely attempting to be provocative (as appropriate for TNR) when he wrote that “privacy and transparency are the diseases”, however, his intent was not to do away with all notions of privacy and transparency but rather to argue against overreaching applications of privacy that hinders effective action that helps society. In the immediately preceding sentence of the excerpt you quoted, Stuntz wrote “Another danger looms larger: that effective, active government–government that innovates, that protects people who need protecting, that acts aggressively when action is needed–is dying.” I write this in 2013, some 7 years after the original post, because I see threats both to individual privacy AND over/perverse -applications of privacy alike, the latter of which often receives less attention. This is the spirit in which we should read articles like Isaac Kohane’s “Why you should demand more surveillance” (WBUR CommonhealthBlog). At first, it seems crazy to ‘want’ surveillance; however, when you read more in depth, Kohane’s intent is to underscore the importance of surveillance in the public health research context (not to be confused with surveillance that might result in arrest) — provocative, to be sure, but important because overly ‘protecting’ privacy can often prevent data sharing in the public interest – i.e. finding new therapies and interventions. Counterproductive, even perverse, interpretations of privacy interests often hinder the public interest. Kohane notes that privacy can be exercised by us to share and make our health information available to scientists, rather than restrict it, in the interests of ends that might benefit us. This is not to diminish important security and confidentiality safeguards designed to prevent misuse and other violations, but these must be tailored to the circumstance so as both to protect individuals while not foreclosing innovation, health, protection of the vulnerable and other public goods we cherish. Also, I think it’s an open question — how Brandeis would have framed the confidentiality interests that Stuntz identified/associated with executive privilege.