Think you have nothing to hide from surveillance? Think again.

People often say that they don’t think government surveillance is such a big deal because they have nothing to hide. They post on Facebook or Twitter, their life is an open book.

What they don’t realize, as this excellent article points out (h/t Chase Madar), is that they might very well have something to hide. And the reason they don’t realize that is that they—like all of us—have no clue as to just how extensive the federal criminal code is.

The US criminal code is scattered across 27,000 pages. And that doesn’t include the roughly 10,000 additional administration regulations the government has promulgated. So extensive and sprawling are these laws and regulations that the Congressional Research Service cannot even count how many federal crimes there are.

This can have grave consequences: not for your privacy but for your immunity from government harassment and coercion.

As Justice Breyer puts it:

The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

And as the author of the piece goes onto comment:

For instance, did you know that it is a federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.

If the federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet.

The selective invocation and application of criminal prosecutions and penalties is one of the oldest tools of repressive government. (Anyone wanting a refresher should consult Otto Kirchheimer’s classic discussion of “patterns of prosecution” in his Political Justice: The Use of Legal Procedures for Political Ends. As Kirchheimer writes, “Modern administrative practices create infinite ways to become liable to criminal prosecution.”) The sheer sprawl of federal (and don’t forget state and local) law—and the surveillance of men and women that now accompanies that sprawl—only enables this furhter.

8 Comments

  1. spork_incident June 14, 2013 at 10:15 am | #

    “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” — Cardinal Richelieu

    .

  2. spork_incident June 14, 2013 at 10:16 am | #

    “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” — Cardinal Richelieu

    .

  3. Glenn June 14, 2013 at 5:03 pm | #

    We are naked before the government.

    Some say we are the government.

    What, then, are we hiding from ourselves?

    We have no secrets, nothing to deny; the denial anything would be the crime of lying to authority anyway.

    Nude Parades.

  4. Anonymous? June 15, 2013 at 9:28 am | #

    Who was it who said ‘give me six lines from the most honest person, and I’ll find something for which he’ll hang’? The law is not common sense, and citizens aren’t taught it, so how can we obey?

    Bruce Schneir, an expert on technology and security, makes some very good points about the ‘if you have nothing to hide’ argument. He lists the obvious rebuttals: ‘If I’ve nothing to hide, why do you need to surveil me?’ ‘I may be innocent now, but the government might change the law in the future’ etc. He likes such arguments, but notes they are premised on the fallacy that privacy is inherently bad. In fact, there’s nothing wrong with privacy. Humans need privacy to test the status quo, to think the unthinkable, without fear of persecution, otherwise we can make no further progress.

  5. Glenn June 15, 2013 at 12:21 pm | #

    We need privacy to step away from the believers, to doubt, and then to engage in doubt’s consequent, thoughtful discourse.

    Suppression of doubt is named heresy in religion and un-Americanism in this political theological deified state.

  6. mike June 16, 2013 at 2:21 pm | #

    I would quote tacitus freely (but I haven’t translated his quote directly and I don’t want to get in trouble in this group…):

    the more the laws, the more corrupt the government.

  7. jonnybutter June 16, 2013 at 8:14 pm | #

    The complexity of modern federal criminal law….make(s) it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

    This is definitely by design, of course. It means that anyone can be arrested at any time and charges needn’t be false or ‘trumped up’. So handy!

  8. RMR June 30, 2013 at 1:56 pm | #

    I’d just say that the issues seem a little different to me–having read too much Foucault, the first question isn’t, “What does such information repress?” but, “What do these knowledges produce?” In other words–putting people on trail isn’t the issue. Producing a certain new definition of people is.

    Again, it’s pretty much straight Foucault. If “the invention of modern man,” relied on the notion of an interior, private space and these technologies empty that out, well, what have you got then?

    I am not saying privacy, schmivacy. I’m asking about what happens when a whole concatenation of such surveillances appears, and gets integrated into subjectivity at every level? After all, as often pointed out–AmEx knows more about you, including not just what you buy but where you buy it, than the NSA does.

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