« Opening: Technical Services Law Librarian, Widener Univ. School of Law, Delaware | Main | Brief and Directly to the Point: Advice to Law Students and New Grads on Achieving a Successful Transition to "Real World" Legal Research »
June 29, 2011
Privacy and Security, Not Privacy or Security: Solove on how to make progress in debating the issues
"Daniel Solove is one of America's leading experts on privacy law. In this engaging book, he explains why privacy is everyone concern; it is a crucial social value that must be integrated into our national security policy rather than simply balanced against it.” — Jack M. Balkin, Yale Law School.
Daniel Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School and an internationally-known expert in privacy law, which means you don't have to listen to my 2-cents opinion that I try to read every book and law review article Dan writes on the issue of privacy because I think his scholarship is the best published in the field. However "reading Solove" is not an easy thing to do for this aging and decrepit law librarian, at least not in as timely a manner I would like. Dan is without a doubt one of the most productive privacy law scholars addressing the new normal in this field. Hell, his new work was written while his wife was pregnant and now that they are the proud parents of an 8-month old son perhaps Dan will take a break so I can catch up on my reading.
The book Professor Balkin and I am referring is Solove's latest work, Nothing to Hide: The False Tradeoff between Privacy and Security (Yale UP, May 31, 2011)[Link to Amazon]. "Nothing to Hide" is certainly Dan's most accessible book. In the Preface, Dan writes
I have written this book for a general audience, avoiding legal jargon and wonky policy analysis. I've presented more detailed policy proposals in my law review articles, but for this book, I focus on general arguments and principles rather than technical minutiae. Of course, the details are important, but even more important are the basic concepts and themes of the debate.
This does not mean that Dan's new book is privacy-lite. From the Introduction:
The privacy-security debate profoundly influences how .. government [surveillance] activities are regulated. But there's a major problem with the debate: Privacy often loses out to security when it shouldn't. Security interests are readily understood, for life and limb are at stake, while privacy rights remains more abstract and vague.
The debate between privacy and security has been framed incorrectly, with the tradeoff between these values understood as an all-or-nothing proposition. But protecting privacy need not be fatal to security measures; it merely demands oversight and regulation. We can't progress in the debate between privacy and security because the debate itself is flawed.
As Georgetown law prof David Cole writes:
Daniel Solove takes on the two biggest challenges to privacy in the twenty-first century: the rapid development of technology that gives the government the ability to track our decisions, choices, discussions, and movements in real time; and the threat of catastrophic terrorist attacks, which demand increased security measures. In clear, measured prose, Solove shows how the law of privacy has failed us in addressing these twin challenges, and proposes an innovative way forward.
There is, or at least, there should be a way to balance personal privacy with national security interests in the 21st Century. For example, I, for one, have accepted the "reality" that even if I had something to hide, I don't worry about it because I have no way to stop on-going government surveillance, particular in the Patriot Act era. I've take as a given that government security interests has already trumped personal privacy interests. However, Dan's central premise is that the argument isn't privary vs. security; the debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. From the book description:
Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.
Highly recommended. And not just for law libraries or adoption for law school advance courses or seminars on the policy issues presented. This is a work that also should be acquired by public libraries.
I tend to view legal developments as snapshots of our society's cultural history with policy arguments as glimpses into where future legal history may be made. If you are like me, and have an interest in an accessable general legal and cultural history of privacy, see Frederick Lane's American Privacy: The 400-Year History of Our Most Contested Right (Beacon Press, Hardcover, 2009; Paperback, 2011) [Link to Amazon] for a broad overview of the right of privacy from colonial postal routes, telegraph wires, the widespread use of mailing postcards, to today's technology. The work traces "the lineage of cultural norms and legal mandates that have swirled around the Fourth Amendment since its adoption," quoting from the product description. About "American Privacy: The 400-Year History of Our Most Contested Right," Dan Solove writes "Frederick Lane’s American Privacy is a highly readable history of the right to privacy in America. It brings to life the people, debates, and events that have shaped our current protections of privacy."
At the moment, I'm flipping between the two works, yes pBooks, but I hope to finish both during this year's Independence Day extended holiday weekend.
Note to FTC. No review copies provided for either featured work. Both acquired by me. Once I've finished reading them, both titles will be donated to our little county law library's collection; ever some of our practitioners take time out of their practice because they are interested in matters like these. [JH]