Judge Posner’s Surveillance Argument Would Not Withstand An Economic Analysis

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.

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10 Responses

  1. anon says:

    I don’t think that we can infer that we have enough surveillance from the fact that we caught the Boston bombers using private footage. Sure, this was the type of event where numerous private individuals were using cameras. But that likely will not be the case with every location targeted by terrorists (e.g., Times Square on a routine day).

    Also, Posner makes the important point that even if we can’t prevent the initial attack, we might use surveillance to quickly apprehend the terrorists before they can attack again.

    Personally, I agree with Posner – I have no problem being extensively monitored as I go about my business in public places. It does seem that the harm to the individual is overstated.

  2. Ryan Calo says:

    Says the anonymous comment…


  3. anon says:

    I remain anonymous for reasons very different from those at stake when I am walking down the sidewalk.
    I do care about my privacy, which is why I do not shout out to the world all of my thoughts as I walk down the street. It is also why I do not have a Facebook account.
    The virtual sidewalk that is the Internet allows me to have my cake and eat it too – share some personal thoughts while enjoying the safety of anonymity and not having to put my reputation at stake with every comment. I don’t think there is anything wrong with this so long as people retain principles of civility.

  4. Ryan Calo says:


    I can appreciate the distinction, although I’m not sure it does as much work as you think. The very fact that a particular person was at a particular place (a protest, an abortion clinic, a gay club) can create meaning. Anyway, thank you for your comment and I apologize for teasing you.


    PS: http://www.earthcam.com/usa/newyork/timessquare/

  5. anon says:


    Thanks for the interesting posts! I have been enjoying them, and don’t mind being teased for my (paranoid?) decision to remain anonymous.

    Thanks also for the link – but it makes me wonder whether I should worry about government surveillance of public areas when private actors like the operators of Times Square Cam are already closely monitoring my stroll down the city sidewalk. Haven’t I already lost any claim to privacy that I might want to assert?

  6. Anotheranon says:

    Judge Posner has pretty extreme views about privacy. He sees it as a way to keep information out of the “market”–and extends that concept to everything. In his paper “The Economics of Privacy,” for example, he writes, “The analysis can easily be generalized, moreover, to other markets … in which private information is concealed. An example is the marriage “market.” … The extended courtship that remains typical of the marriage market may be due in part to the efforts of prospective spouses to conceal their deficiencies from each other.” Courtship as concealment, rather than revelation, is a pretty unique perspective. And, of course, the “may be due” makes this just a–what–hunch?

  7. Orin Kerr says:

    “[T]he quick identification of the Boston bombers from private footage suggests we have enough surveillance. ”

    I don’t follow this. First, the question of whether we have enough surveillance is answered not by whether there was sufficient identification in a single case, but rather whether there will be sufficient ID across a range of future cases. In this case, the bombing happened to occur at an instant when a lot of people were taking pictures and video; it’s not clear that this was a typical set of facts. Second, even with respect to this one case, my understanding is that the inadequate ID of the Boston bombers from private footage is what led to the risky publish disclosure of what the government knew so far. Given that, I suspect reasonable people would disagree about whether the footage was adequate.

    “Moreover, hardened terrorists have proven willing to die in an attack, making identification moot.”

    Some are, but some aren’t — which seems to unmoot the question, no? And even if the terrorists die in the attack, being able to ID them ex post is extremely valuable. To better counter the threat, we need to understand the threat; to understand the threat, it’s helpful to know who was involved in past attacks.

    Of course, none of this means that Posner’s position is right. But if we’re just trying to rule out arguments that are indisputably wrong, I don’t think we can rule out that more surveillance might be a good thing based on the kinds of limited information we have.

  8. Orin Kerr says:

    FWIW, this just in: “Americans overwhelmingly favor installing video surveillance cameras in public places, judging the infringement on their privacy as an acceptable trade-off for greater security from terrorist attacks, according to the latest New York Times/CBS News Poll.”

  9. A.J. Sutter says:

    To Orin’s point: I suggest that Americans’ expressed tolerance for surveillance is based on their assumptions that (i) the footage will be used only for terrorist threat assessment and (ii) they will never wrongly be accused of being a terrorist. This isn’t simply a privacy vs. terrorism issue, there are also questions of how much we can trust those who have access to the surveillance information, esp. to be restrained in their use of it. While I’m hardly a libertarian by any stretch of the imagination, even I have questions about whether our Nobel Peace Prize-winning administration merits that trust. Restraint is not a word that springs to mind when reflecting on the use of power by the executive branch during the past decade or so.

    This is also apposite to the original point of the post. Maybe the deeper problem with Judge Posner’s analysis is that it’s too reductive for omitting the trust issue, and perhaps other dimensions other commenters can point out.

    OTOH, basing your critique on cost-benefit analysis is a risky rhetorical tactic. That technique was designed to make any argument whatsoever seem plausible, as Theodore Porter, Frank Ackerman and others have pointed out. Perhaps anything you can come up with, Judge Posner might be able to trump. It’s very difficult to establish any CBA as definitive — the only limits to costs or benefits of a policy are in the advocate’s imagination.

  10. Ryan Calo says:

    Thanks for all of the great comments.

    Orin, my analysis concerns incentives, and my conclusion is that a cost-benefit analysis presents at best a mixed picture.

    I’m not saying that the apprehension of the bombers proves one way or the other whether we have enough surveillance in general. (I use the word “suggests.”) But if you’re a criminal, what’s your takeaway from seeing other criminals apprehended when they were caught on video? That you’ll get away with a crime unless there is more surveillance? And, similarly, if you’re a law enforcement official facing resource constraints, which way does the availability of private footage in this high profile instance cut?

    I take your point about the value of identifying dead terrorists after the fact.