Judge Richard Posner took the occasion of the Boston bombing to remind us of his view that privacy should lose out to other values. Privacy, argues Judge Posner, is largely about concealing truths “that, if known, would make it more difficult for us to achieve our personal goals.” For instance: privacy helps the victims of domestic violence achieve their personal goal of living free from fear; it helps the elderly achieve their personal goal of staying off of marketing “sucker lists;” and it helps children achieve their personal goal of avoiding sexual predators online.
To be fair, Judge Posner acknowledges that some concealment is fine and that privacy laws may even “do some good.” He worries rather about civil libertarians who would limit the expansion of surveillance to the point that we can neither deter, nor apprehend terrorists like the men responsible for bombing the marathon. “There is a tendency to exaggerate the social value of privacy,” Judge Posner believes, and it just might get us killed.
Judge Posner is a founding member of the law and economics movement and, as such, it would seem fair to analyze his claim from the perspective of incentives. Does video surveillance deter crime in general? Empirical evidence suggests that cameras merely displace crime, and Judge Posner concedes that picking terrorists out of a crowd before they act is impracticable. Does video surveillance help with identification? Sure. But the quick identification of the Boston bombers from private footage suggests we have enough surveillance. Moreover, hardened terrorists have proven willing to die in an attack, making identification moot.
Then there are the unintended consequences—a mainstay of economic analyses of the law. The fact that an act of terrorism will be caught on video and spread to every screen in America greatly enhances its intended impact, which in turn makes the option more attractive to our enemies.
One can quibble with my data points. But any honest, empirically-informed cost-benefit analysis of additional surveillance will yield at best a mixed picture. I submit that Judge Posner’s argument yesterday is dead wrong by the terms of the very movement he founded.