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    Op-Ed at Salon: Why “security” keeps winning out over privacy

    George Washington University Law Professor and Concurring Opinions creator Dan Solove has published an opinion column at Salon concerning privacy rights:

    Far too often, debates about privacy and security begin with privacy proponents pointing to invasive government surveillance, such as GPS tracking, the National Security Agency surveillance program, data mining, and public video camera systems. Security proponents then chime in with a cadre of arguments about how these security measures are essential to law enforcement and national security. When the balancing is done, the security side often wins, and security measures go forward with little to no privacy protections.

    But the victory for security is one often achieved unfairly. The debate is being skewed by several flawed pro-security arguments. These arguments improperly tip the scales to the security side of the balance. Let’s analyze some of these arguments, the reasons they are flawed, and the pernicious effects they have.

    The All-or-Nothing Fallacy
    Many people contend that “we must give up some of our privacy in order to be more secure.” In polls, people are asked whether the government should conduct surveillance if it will help in catching terrorists. Many people readily say yes.

    But this is the wrong question and the wrong way to balance privacy against security. Rarely does protecting privacy involve totally banning a security measure. It’s not all or nothing. Instead, protecting privacy typically means that government surveillance must be subjected to judicial oversight and that the government must justify the need to engage in surveillance. Even a search of our homes is permitted if law enforcement officials obtain a warrant and probable cause. […]

    The Pendulum Argument
    In times of crisis, many security proponents claim that we must swing the pendulum toward greater security. “Don’t be alarmed,” they say. “In peacetime, the pendulum will swing back to privacy and liberty.”

    The problem with this argument is that it has things exactly backward. During times of crisis, the temptation to make unnecessary sacrifices of privacy and liberty in the name of security is exceedingly high. History has shown that many curtailments of rights were in vain, such as the Japanese-American internment during World War II and the McCarthy-era hysteria about communists. During times of peace, the need to protect privacy is not as strong because we’re less likely to make such needless sacrifices. The greatest need for safeguarding liberty comes during times when we are least inclined to protect it.

    Read the full article for more from Solove.

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