Section 2: The Moral Imperative of Privacy
Chapter 4: When Privacy Is Criminalized. Only Criminals Will Be Private
by Wendy McElroy
What Do You Have to Hide? Everything! (Chapter 4, Part 1)
I grew up with the understanding that the world I lived in was one where people enjoyed a sort of freedom to communicate with each other in privacy, without it being monitored, without it being measured or analyzed or sort of judged by these shadowy figures or systems, any time they mention anything that travels across public lines.
– Edward Snowden
I want my tombstone to read: “I lived. I died. Now mind your own damned business.” What do I have to hide? Everything! Which is to say, any information I am required to reveal is data I decline to disclose.
Privacy is the single most effective way to preserve freedom against encroaching government. In his book Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, the political scientist James C. Scott commented on the role of one form of data inventory played in the rise of the modern state: the census. Scott wrote, “If we imagine a state that has no reliable means of enumerating and locating its population, gauging its wealth, and mapping its land, resources, and settlements, we are imagining a state whose interventions in that society are necessarily crude.” Data is power, both for individuals and for governments.
The privacy of cryptocurrency offers the brightest hope for individuals to preserve their financial autonomy. And the need for privacy has never been more urgent; with the digital age, the collection of data has become a bonanza of which past governments could only dream. But crypto-users who want to control their own wealth confront cultural assumptions that strongly favor government control rather than individual freedom.
Some of the strongest assumptions include:
• The presumption of innocence belongs to government, not to individuals;
• a double standard of morality is applied to government and to individuals;
• the political meaning of “privacy” is inverted by a sleight of hand; and
• Orwellian doublespeak has become normal discourse.
The Presumption of Innocence
The legal term “presumption of innocence” is sometimes expressed by the Latin phrase “ei incumbit probatio qui dicit, non qui negat,” which means the burden of proof is on the accuser and not on the accused. The accused is presumed to be innocent until he or she is proven guilty. The legal doctrine rests on the belief that most people are not criminals and, so, criminality cannot be presumed; it must be demonstrated. The doctrine also acknowledges a fundamental principle of logic: namely, since it is impossible to prove a negative, the burden of proof correctly rests with whomever makes a positive assertion.
The presumption of innocence is a cornerstone of individual rights and a wall against arbitrary prosecution by governments. It is a defining feature of a free society rather than a totalitarian one. The renowned British barrister Sir John Clifford Mortimer-best known as creator of the beloved fictional character, defense barrister Horace Rumpole — was far from alone in viewing the presumption as “the golden thread” that wove justice together.
The golden thread has unraveled.
The government has been handed a “right” to surveil and to demand information from the masses, who no longer have a presumption of innocence even though they are accused of no crime. Border guards fingerprint, physically molest, interrogate, and bark out, “Your papers!” to the passing hordes; those who refuse are viewed as obviously guilty because they must have something to hide. Police officers arrest people for refusing to produce ID, whether that arrest is legal or not. After all, police officers are “the good guys,” which means only “the bad guys” will not comply. The violation of rights is justified or even encouraged by the allegedly noble motives of government agents, who are said to provide security or enforce the peace. The presumption of innocence has been transferred from individuals to government agents.
The underlying assumptions of innocence have also been reversed. Instead of considering most people to be non-criminal, everyone is suspected of being guilty until their innocence is established. How? Government-issued ID and compliance with reporting requirements are the bedrock of evidence demanded. As well, the logical principle of being unable to prove a negative has been reversed; the logical fallacy known as “the argument or appeal from ignorance” has taken its place (Here, “ignorance” refers to a lack of contrary evidence). Stated over-simplistically, one part of the fallacy asserts “that a proposition is true because it has not yet been proven false.” And, so, the possible criminality of an individual is true because it has not yet been disproven.
Again, the presumption of innocence has been transferred to the government and away from the individual. It is difficult to overstate the importance of this. It is not only the death knell of justice, which cannot exist without due process, it is also a direct slide into totalitarianism. That’s the political meaning and consequence of the question “What do you have to hide?” People are no longer innocent and allowed to mind their own business in peace.
Double Standard of Morality
The presumption of innocence of government and its agents is enabled by the fact that a double standard of morality is at work in society—one for individuals, and one for government.
No voice rang out more clearly against a double standard of morality than that of the libertarian-publishing giant, Raymond Cyrus Hoiles, who began creating the media chain known as Freedom Communications in the 1950s. Hoiles believed the double standard was more destructive to society than any other concept, and his attacks upon it were a common theme in his newspapers.
In an editorial entitled “The Most Harmful Error Most Honest People Make” (December 17, 1956), which appeared in his flagship newspaper, the Santa Ana Register, Hoiles explained the error. It “is the belief that a group or a government can do things that would be harmful and wicked if done by an individual and produce results that are not harmful, unjust and wicked. It is the belief that a number of people doing a thing that is wrong for an individual to do, can make it right and just.” Hoiles most often critiqued the error in terms of taxation. If it was wrong for a neighbor to steal your goods, then it was equally wrong for a group of neighbors or their appointed representative (government) to do the same.
The critique of double standards did not start with Hoiles, of course. A 1657 pamphlet (ascribed to the rebel Colonel Titan) argued, “What can be more absurd in nature and contrary to all common sense than to call him Thief and kill him that comes alone… and to call him Lord Protector and obey him that robs me with regiments and troops? as if to rove with two or three ships were to be a pirate, but with fifty an admiral?” And, yet, this absurdity is what the state enforces when it acts in a manner that would not be tolerated from individuals.
What applies to taxation applies no less to the violation of privacy. If it is wrong for a neighbor to pat down your naked body and that of your child, then it is wrong for a government agent to do so. If it is wrong for a neighbor to tap your phone, to record your financial transactions, and to peek through your windows, then it is equally wrong for the government to do so. A group does not relinquish personal responsibility by acting in someone else’s name because actions are always the personal responsibility of the acting party. Gang rape is no less rape even if it serves a cause that a particular society applauds, such as ethnic cleansing.
A key reason government remains an engine of coercion is because so many people buy into a double standard that exempts it from moral responsibility. If government agents, from the president to post-office workers, were bound to the same standards of decency and legal responsibility as other individuals, then the current government would crumble.
A Sleight of Hand on Privacy
“Privacy” has been redefined as “concealment,” which is a sleight of hand. In his excellent essay, “’I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy,” Professor Daniel J. Solove explained the metamorphosis of privacy into concealment:“The argument that no privacy problem exists if a person has nothing to hide is frequently made… When the government engages in surveillance, many people believe that there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private.” Oddly enough, people who make the “nothing to hide” argument also hang curtains on their windows. They do not give their wallets or purses to strangers to rummage through. They close the door before having sex, and they object to naked photos being posted online. What are they hiding? As Solove commented, privacy is “not about anything to hide, it’s about things not being any one else’s business.”
The “nothing to hide” position trivializes and criminalizes the right to privacy. It also destroys the incredible value true privacy provides to society and to individuals. Consider just one example of each benefit:
The value of privacy to society: When a government monitors general communication, people do not interact freely. This is especially true of dissenters, the aberrant (however innocuously so), writers, whistleblowers, critics of government, skeptics, defense attorneys, artists… The bleak, gray society in the Soviet Union and other communist states provide cautionary tales of how fear and caution crush creativity and discussion.
The value of privacy to individuals: Privacy is part of a healthy, creative and self-reflecting life. Since childhood, for example, I’ve kept a diary into which I pour hopes, confusion, disappointments, and desires. When I read pages from the past, I viscerally feel who I was at ten years old, which makes me understand far better the person I am today. These diaries are private, not because I am ashamed of them, but because they are very personal.
Everyone has areas of privacy to protect. Some wear lockets with photos of dead relatives; others harbor a forbidden love; some lock the door to luxuriate in a hot bubble bath; or, they hide a sexual preference that confuses them. These are lines. No other human being can properly cross them without an invitation. Slam the door in the face of anyone who says differently!
We Are Orwell
In his dystopian novel 1984, George Orwell introduced the concept of doublespeak. This refers to the reconstruction of language in order to deliberately distort or reverse the meaning of words for political gain. For example, “war is peace” justifies the invasion of nations that have initiated no force due to a noble goal–peace. “Liberty is obedience” allows authority to compel the compliance of peaceful people for “their own good” in the name of security. “Questioning is violence” means censorship is justified to preserve social order. Now, “privacy is concealment.”
Cryptocurrencies face a steep cultural climb to take their place as a privacy tool. Fortunately, they already occupy the high ground of freedom.