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Reed Hundt calls for alternatives to framing surveillance issues in terms of privacy versus security, but the hard fact is that we cannot avoid tradeoffs. We have to assume that at least some surveillance programs do thwart plots and save lives. That leads to a hard question: whether we as a society will preserve privacy knowing that innocent people will die. Will we trade some lives for some privacy? At times, the answer to that question should be yes.
Hundt’s proposals reflect the dangers of not posing hard questions. He offers three solutions for reconciling privacy and security: greater transparency, enabling American citizens to take privacy into their own hands, and ensuring that the collection and use of data is governed by the rule of law. His first and third solutions are too vague to guide policy: all sides can agree on some level of transparency, privacy, and rule of law. He doesn’t provide solutions to the challenges of implementation, such as how to respond to Tor, a technology that protects democracy activists and terrorists alike, or offer a principle that would help us make that decision.
The only way to get to such a principle is to ask the hard questions, beginning with the one about trading privacy for lives. Hundt steers us away from that by framing the tradeoffs in misleadingly absolute terms:
If I were asked to relinquish my privacy and put my right of self-expression under some constraint in return for protecting my family from harm, I would agree. I would not enjoy the trade. But I would rather take the risks of losing privacy than put my family in danger. Almost everyone would make the same choice.
His framing of the tradeoff implies that we should think about privacy as though we know for certain that our families will be harmed if we opt for it. That is not the situation we face: we will never have that kind of certainty. It is much more a question of odds, and often very low odds at that.
It also is not true that “almost everyone would make the same choice.” The men who drafted our Constitution didn’t. The Fourth Amendment outlaws “general warrants” that do not “particularly describe the place to be searched, and the persons or things to be seized.” That Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The founders must have recognized that, at some point, these restrictions would prevent authorities from thwarting a crime or saving someone’s life. But they believed liberty was worth that price.
Every day, we make decisions that weigh lives against other goods.
There is a famous claim, attributed variously to presidents and Supreme Court justices, that the Constitution is not a suicide pact. But to some extent it is. It was drafted by men who risked their lives and their family’s lives for liberty in a war against the world’s most powerful empire. They chose liberty over security when the liberty in question was sufficiently important. They chose losing their lives over sacrificing their privacy in certain ways.
This argument may seem dramatic or a reductio ad absurdum of pro-privacy positions. It is not. Every day, we make legal and regulatory decisions that put lives up against other goods. The U.S. Department of Transportation values a life at $9.1 million. We make tradeoffs with drugs—the FDA determines whether additional tests, which might protect people from unsafe drugs, are worth the cost to the drug manufacturers (in dollars) and to potential early users of the untested drugs (in their well-being). The people who make these decisions are not callous or insensitive to the value of human lives. They merely recognize that there are many goods out there, things that make lives worth living.
Privacy is one of those goods. We need it for all the reasons that Hundt points out—to stay safe from false accusations, to protect freedom of expression and thought—and others too. Sometimes, even these goals aren’t worth a substantial sacrifice in our security, but sometimes they are. To determine when, we need to ask the hard questions.
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