So let me take naked pictures of you
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One of the most common (and infuriating) responses to any indignation about the government’s surveillance and wiretapping programs is: “I’ve got nothing to hide, I don’t care”. A fundamental underpinning of this argument is that a little bit of intrusion protects our national security, so it’s okay.
I see similar arguments from those not of the criminal defense bent in regards to some basic Constiutional protections: “Well, if I’ve done nothing wrong, then why should it matter that the police didn’t have a warrant.” It underlines the notion that the Fourth Amendment is a “technicality”.
Only criminals need the protection of the 4th, because they have done something wrong or have some to hide. If they hadn’t, they wouldn’t be where they are in the first place.
It’s also why many wonder why there needs to be a criminal defense bar at all, or that hiring a lawyer is a sign of guilt.
Because it could never happen to us – and we have nothing to hide.
Dan Solove, at Co-Op, has a new paper exploring this notion, further fleshing out the different kinds of invasion of privacy and makes an attempt at formulating an effective response to it. It’s a bit lengthy, but I recommend reading it.
Just because I havenothing to hide, doesn’t mean I want everyone to know everything about me.
[The title of this post is a paraphrasing of a comment Solove received to a post soliciting responses to the "I've got nothing to hide" argument. I don't really want to see you naked, much less take naked pictures.]
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Of course, if I’ve done nothing wrong I’m not helping the police by not requiring them to get a warrant – I’m wasting their time by allowing them to perform a search that won’t turn anything up.
This is one of my absolute biggest pet peeves. I have no patience for people who imply that those of us who are interested in protecting our Constitutional rights are doing something wrong.
Thanks for sharing the Solove paper.
The people you speak of, those that believe the 4th Amendment exists only to protect drug dealers, are the same people who become obnoxiously indignant when they are given a speeding ticket.
In my experience, the people who say “I have nothing to hide” are those who have the MOST to hide.
Great post! The people you speak of seams to read the IV Amendment as if it said:
“The right of the people [who has something to hide]…”.
Sorry for my English.
AB
Another problem is knowing when you have something to hide. To quote Tom Lehrer, “when correctly viewed, everything is lewd”. If police are suspicious of someone to the point of wanting to make a search, or seeking a warrant, they expect to find SOMETHING — and what they find may not be something you expected.
Are you 100% sure there’s no illegal images on your computer? That you didn’t accidentally click a link that had an imbeded image that’s hidden in some thumbnail file on your computer, or your kids, or someone in your office didn’t do so?
Are you absolutely sure that every knife and tool in your house and car comply with CT’s somewhat open-ended weapons laws? (Read 53-206 and think about how many kitchen and camping knives can fall within it.) (For your house, you may have a residence/abode exemption, but that can get complex.)
Are you sure that there’s no detectable trace of narcotics in your house? Do you recall the cases dealing with trace cocaine on currency?
How confident are you that police won’t make a good-faith mistake in a DNA match, or a fingerprint match, or some other forensic test? And if they do that you’ll get your reputation back if they did make an error?
Do you really think it is a good idea to come down to the station at the officer’s request and be interviewed or interrogated. And have the record of that be the officer’s memory and notes, not a recording? If you don’t believe me when I say that’s dumb, check out some of these folks:
Kassin, On the psychology of confession: Does innocence put innocents at risk?, 60 American Psychologist 215 (2005)
Kassin & Fong, “I’m Innocent!: Effects of training on judgments of truth and deception in the interrogation room, 23 Law & Human Behavior 499 (1999).
Kassin, Goldstein, & Savitsky, Behavioral confirmation in the interrogation room: On the dangers of presuming guilt, 27 Law & Human Behavior 187 (2003)
Kassin & Norwick, Why People Waive their Miranda rights: The power of innocence, 28 Law & Human Behavior 211 (2004)
Leo, Miranda’s Revenge: Police interrogations as a confidence game, 30 Law & Society Review 259 (1996)
To paraphrase The Prisoner — I am not a subject, I am an American citizen. I will not be searched, surveilled, sampled, or questioned — my life is my own.
I really want to read the first Kassin paper you referenced. Can’t find it online. Is it available on Lexis?
Most of Kassin’s papers are here:
http://www.williams.edu/Psychology/Faculty/Kassin/research/confessions.htm
There’s a link to email him for copies of the ones that aren’t directly available.
I once (only once) spoke on Law Day at a jr. high with a prosecutor who told the kids they should ALWAYS let the police search if the police asked. I came unglued. I was not invited back. It seems so fundamental to me that it is WRONG that someone can detain you, or search your vehicle, or whatever, on a whim.
Hah. I do exactly the opposite. I tell anyone who will listen that they should not talk to a cop or let them search you or your house/vehicle.
I guess, in an ideal world, sure, we’d want cops to be able to do the right thing and “solve the crime”. But this isn’t an ideal world.
The “nothing to hide” argument is one of the most effective and coercive there is, developed for the sole purpose of overcoming the free will and intelligence of the suspect while comporting with Supreme Court precedent.
And really, isn’t that what justice is all about?
funny you mention that, because that’s a close approximation of the language used in supreme and federal court precedent on the voluntariness of confessions.
What people don’t seem to realize is that our constitutional rights have two related purposes: protecting a person’s freedom and a check on government power.
As for national security wiretaps, that’s an interesting issue. Functionally, given Katz, when phone calls cross international boundaries, the wiretap is the functional equivalent of a border search, which can be pretty intrusive. The real protection for the national security wiretaps is the sheer volume of calls. Yeah, the bozos are going to listen in on phone sex and what have you (something for which jail time ought to happen), but there is enough anonymity to give us protection.
Hello Gideon,
You’re absolutely right, it’s infuriating as heck. Especially when people say “Well, I don’t mind….” Gee, do you think nobody else might possibly (1) be affected, (2) object and (3) count for anything?
The interesting thing is, people tend to exercise selective attention, often along political lines. Many of the same folks who are suspicious of tax agents’ or regulators’ powers – particularly to search and seize business records and assets – have no problem with giving unlimited discretion to cops on the street.
(And unfortunately, many of our civil liberties allies turn around and blindly trust government officials on “mere” business matters. It’s a sad commentary on our times that you can tell who’s a liberal and who’s a conservative by looking to see which constitutional amendment they consider important – the First or the Second. Or which part of the Fifth.)
Cheers,
Jeff Deutsch