Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens — their email, documents, phone conversations, nearly everything they say or do — regardless of whether they are suspected of any wrongdoing or not. Posner’s argument is quite startling and troublesome. Posner writes:
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.
So, taking Posner’s argument to the extreme, there’s no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on — so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people’s speech and freedom? Posner ignores these things.
Posner goes on to write: