Marc Rotenberg on Security vs. Privacy

Nice essay:

In the modern era, the right of privacy represents a vast array of rights that include clear legal standards, government accountability, judicial oversight, the design of techniques that are minimally intrusive and the respect for the dignity and autonomy of individuals.

The choice that we are being asked to make is not simply whether to reduce our expectation of privacy, but whether to reduce the rule of law, whether to diminish the role of the judiciary, whether to cast a shroud of secrecy over the decisions made by government.

In other words, we are being asked to become something other than the strong America that could promote innovation and safeguard privacy that could protect the country and its Constitutional traditions. We are being asked to become a weak nation that accepts surveillance without accountability that cannot defend both security and freedom.

That is a position we must reject. If we agree to reduce our expectation of privacy, we will erode our Constitutional democracy.

Posted on May 8, 2009 at 6:41 AM20 Comments


Tom Olzak May 8, 2009 7:19 AM

He makes an excellent point. Although I believe there are instances in which privacy is limited (workplace systems), the rule of law must prevail whenever there is a conflict. It is our legal framework which maintains focus on common sense and human rights for activities deemed necessary for the common good.

bethan May 8, 2009 8:15 AM


It’s something that most people don’t think about – the tradeoff between illusory security and the erosion of civil liberties.

an individual’s security comes with his right and ability to safeguard himself and his privacy.

Eric May 8, 2009 8:25 AM

I find it interesting to think about privacy as “personal security”. This turns the debate closer to an apples-apples thing, i.e., community security vs. personal security.

It then also becomes easier to suggest that we explode the fallacy that we have to compromise one for the other and work toward solutions that strengthen the interests of both.

sooth sayer May 8, 2009 8:27 AM

I am not sure privacy makes Democracy stronger or weaker. These are orthogonal “items”.

You can have all the privacy (like half the population not even showing their face in public) but hasn’t yielded a society with superior human rights.

bethan May 8, 2009 8:41 AM

@sooth sayer

culturally or legally mandating that women cover their face/self in public is hardly a society that is protecting privacy or civil rights.

privacy is the right to be left alone. if those women took off their veil at the market in their town, would they be left alone? no. but they would if they did it in chicago.

HJohn May 8, 2009 8:46 AM

One thing I always find amusing is how many who advocate strict adherence to the Constitution (and I agree with that) also refer to the US as a “Democracy,” which is not the form of government the Constitution. Makes me chuckle a bit, but I do agree with much of his concerns.

When cars were invented and the highway transportation system was born, the authorities, so it argued, needed a means to identify travelers, which has privacy concerns. Society in turn argued about their liberties, which leads to concerns over anonymity and identification. So, rather than printing our names and addresses on vehicles, we have license plates, providing a reasonable balance between the citizen and the authorities.

While similar in someways and clearly different in others, I think we need a serious dialogue on how to provide the best balance in the relm of technology.

Michael Ash May 8, 2009 9:38 AM


That “we’re not really a democracy!” argument is getting a little old. Surprise surprise: the meaning of the word has changed since the time of ancient Athens. In the 21st century the word “democracy” generally refers to popularly-elected republics such as is commonly found in the “West”.

Pronto May 8, 2009 9:50 AM

For anyone even remotely interested in privacy, I strongly recommend reading Daniel J. Solove’s book “Understanding Privacy”.

I discovered the book right here in a post, and it has been on my reading list for the last few weeks.

It has so far redefined the way I see privacy, it has changed my view when reading such news bits and it is an excellent effort, as was noted in the original post.

Jack May 8, 2009 1:34 PM

This is one of the hottest topics and is undergoing vigorous debate. However, once again the element of technology is missing. It cannot address the implications of technology which is yet unknown, but the introduction of which is perhaps imminent. It will change everything, for both good and bad.

JamesR May 8, 2009 1:37 PM

Feels like this battle is lost, given we have no control over our information. What we need is a way to create a shadow/proxy digital representation of ourselves, and use that for everything … and only we can map back to ourselves given the shadow.

Jason May 8, 2009 2:13 PM

Don’t forget to read the counterpoint article here

With points like:
“Privacy expectations are also unreasonable when they are premised exclusively on establishing independently-derived “probable cause” prior to monitoring any electronic records even in those circumstances where the data itself may be the first — or only — available evidence of suspicious behavior, and where it would be wholly consistent with the Fourth Amendment to investigate or monitor such behavior under alternative standards, such as “reasonable suspicion.” For example, privacy expectations are unreasonable where they would preclude programmatic monitoring of suspected terrorist communication channels or the routine surveillance of explosives purchases.”

are awesome. All police need to do is suspect terrorism and any and all protections should magically fall away with no repercussions if they are wrong.

Pat Cahalan May 8, 2009 2:23 PM

@ HJohn

re: strict adherence to the Constitution

I don’t want to hijack the thread here, so I started an observation about this principle on my own blog. Critical analysis is welcome 🙂

G.I. Joe May 8, 2009 2:42 PM

I’d be interested in seeing some posts with perspectives on this from those residing outside the U.S.A.

Ares May 9, 2009 1:52 PM

Have we become so lazy that we must depend on others to protect our own families? If the people don’t protect themselves, no one else will. Security is a “trigger” word that the government uses to sell us whatever they want. WAKE UP, AMERICA!

Anonymous May 9, 2009 4:30 PM

While I liked the linked article, I feel cheated by ivory tower words, although I thank EPIC and EFF for their positive actions.

The sad fact is that the only security that is left, is by negotitation to break the system.

Privacy is a cruel joke, and only affirmative defences, and cost based negotiation.

The result is an appeasement listed society, and exploited duo-monopolies.

Technology without proper selective availability, and regulated oversight, is where the human cringes in the few remaining shadows, and only partially recovers from the blinding brightness, that only allows purposeful incomplete shadows as a mask. Security vs privacy? Complex issues, that get ignored when technology blindly changes fragile power balances.

John Campbell May 10, 2009 12:38 PM

Wasn’t it Adlai Stevenson who said “A free society is one where it is safe to be unpopular”? I suspect that is especially true if you are also safe from the “collective” (the government, such as it is).

This does kind of tie into “personal security” versus “community security”, but, as long as the personal variety does not compromise the community’s…

What is it about the tyranny of the majority that makes it “OK”? And who is the majority? Aren’t Silent majorities usually “inferred” as empowering some moron with too high a power-to-brain-cell ratio?

HJohn May 11, 2009 8:59 AM

@Michael Ash: That “we’re not really a democracy!” argument is getting a little old. Surprise surprise: the meaning of the word has changed since the time of ancient Athens. In the 21st century the word “democracy” generally refers to popularly-elected republics such as is commonly found in the “West”.

Fair enough, but let me quote two of our founding fathers:

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” — John Adams.

“Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” — Benjamin Franklin

I didn’t mean to open a can of worms (but the original post did say “Constitutional democracy”). Pat linked to a interesting blog on the topic, and the Franklin quote did say we need liberty. Unfortunately, Bruce is right that our liberties are aroding (often in the name of good intentions). Privacy is a pillar of liberty–otherwise, all of us eventually do something that can be unjustly used against us.

Happy Monday. 🙂

Shane May 12, 2009 12:30 PM

If all it took were some fanciful R&D-style documents to prove a basic human truth that our forefathers have been preaching about for 250 years now, we’d have been done with this argument centuries ago.

It’s quite obvious that no one of consequence (read: no one in power) seems to be listening. Perhaps that’s a better place to start.

Frankly, I think the best arguments have already been made for privacy and freedom, many times over, throughout our history. That they still have a place on the debate floor is a testament to our sorry state of evolution, which is also apparently still on the debate floor… case in point.

The spire on top of the mountain of human knowledge breaks on through into the heavens, but unfortunately for those of us up in the stars, the bulk of our mass is an immense glacial blob holding fast to the surface, thousands of miles below, and it doesn’t like heights.

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