Richard Posner: Privacy is “Mainly” About Concealing Guilty Behavior

If
you were ever wondering how federal judges feel about limiting the
state’s ability to surveil you for whatever reason they want as
long as they sprinkle the fairy dust of national security
in the air, wonder no more! The short answer? The state has every
right to do pretty much whatever it wants!

Here’s Judge Richard Posner, erstwhile pioneer of the
law-and-economics movement and member of the U.S. Court of Appeals
for the Seventh Circuit, opining on the matter:

“Much of what passes for the name of privacy is really just
trying to conceal the disreputable parts of your conduct,” Posner
added. “Privacy is mainly about trying to improve your social and
business opportunities by concealing the sorts of bad activities
that would cause other people not to want to deal with you.”

Congress should limit the NSA’s use of the data it collects—for
example, not giving information about minor crimes to law
enforcement agencies—but it shouldn’t limit what information the
NSA sweeps up and searches, Posner said. “If the NSA wants to
vacuum all the trillions of bits of information that are crawling
through the electronic worldwide networks, I think that’s fine,” he
said.

In the name of national security, U.S. lawmakers should give the
NSA “carte blanche,” Posner added. “Privacy interests should really
have very little weight when you’re talking about national
security,” he said. “The world is in an extremely turbulent
state—very dangerous.”

Posner criticized mobile OS companies for enabling end-to-end
encryption in their newest software. “I’m shocked at the thought
that a company would be permitted to manufacture an electronic
product that the government would not be able to search,” he
said.

Say it ain’t so, judge!
Posner’s comments,
quoted by PC World, came at a conference privacy and
cybercrime. There is something incredibly—even wilfully—naive in
giving the NSA or any other agency “carte blanche” to collect data
and then expect the powers that be to limit their use of it to
legitimate purposes. Here’s a banal example that is both shocking
and indicative of how well that menality works:
NSA “interceptors” routinely recorded and swapped phone sex
exchanges between soldiers in Afghanistan and their loved ones back
home.

It’s not exactly clear, either, what sorts of procedural
safeguards Posner thinks are legitimate these days. Does the
government need to get individual warrants for specific data and
information? Or is a blanket warrant good enough for government
work?

Posner has long been one of the most influential jurists of the
past 50 years. Read a
2001 Reason interview with him here and
then scroll these pieces about him that chart his gravitation
toward giving the government more and more power in the name of
fighting terrorism and protecting the status quo (including secret
trials, expanding copyright laws to protect newspapers’ ROI, and
worse).

Although appreciated by libertarians for bringing cost-benefit
analyses and other economics-related tools to applications of the
law, Posner doesn’t believe in limitations on state power from a
philosophical angle. If a policy is likely to produce what he
figures is the maximization of social welfare, let ‘er rip. In an
age of terrorism where
threat inflation is the coin of the realm, such a perspective
ineluctably leads to characterizing privacy as more of a problem
than an expectation.