William 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.