Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated

from the and-he's-wrong dept

Judge Richard Posner is probably one of the most well-known and quoted appellate judges around. He’s an excellent writer as well, and I enjoy many of his books and his rulings, though when he gets things wrong, he seems to get them so very, very wrong. When he’s on, he’s great. For example, his recent attack on copyright trolling and defending the public domain was great. He’s also been good on patents. But… on surveillance he seems all too eager to side with the government.

Given that, there was little surprise that at a recent conference on cybercrime, Posner unloaded with some of his more ridiculous beliefs, essentially saying that the NSA should be able to spy on whoever they want because “national security” is more important than privacy (or the 4th Amendment, apparently):

?I think privacy is actually overvalued,? Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

?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.?

Ah, the old “if you’ve done nothing wrong, you’ve got nothing to hide” trope. If that’s true, then it does make you wonder what Posner himself is hiding. As Dave Maass pointed out, Judge Posner has redacted the name of his trust on his financial disclosure form.

Posner doubled down on this by claiming that if someone looked at his mobile phone, they’d just find pictures of his cat and nothing too important:

?If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,? he said. ?What?s the big deal?

?Other people must have really exciting stuff,? Posner added. ?Do they narrate their adulteries, or something like that??

No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

Or to just embarrass them. To take an example that Judge Posner might actually relate to, his fellow appellate court judge (and about equal in “famous judge” stature) Alex Kozinski. Back in 2007, a disgruntled lawyer figured out a way to reach a personal web server that Judge Kozinski used to store random “funny things” he found online, including some “racy” images. The press picked up on the story and went crazy about this judge who apparently was keeping “obscene” images, including one that the press repeatedly claimed showed “bestiality.” This was all over the press, including the LA Times. If you want to see the “bestiality” video, you can view it here on YouTube.

The point being, Kozinski wasn’t really doing anything “wrong” (other than not properly securing his own personal web server). And yet someone (a lawyer unhappy with Kozinski) was able to take what he found on that web server, which was basically some jokey videos and pictures, and turn it into a big (and misleading) deal in the mainstream media, leading to a panel of federal judges having to do a full investigation. Yes, eventually they cleared Kozinski, but the point remains: if someone wants to make your life hell, and can get access to stuff you wanted kept “private,” they can often do so. Even if you’re a famous, big shot, appellate court judge.

Even worse, as Glenn Greenwald reminds us, Judge Posner is a complete and total hypocrite on this issue — in a 2011 case concerning whether or not citizens have a First Amendment right to film the police, Posner was suddenly worried about the police’s right to privacy:

JUDGE POSNER: Once all this stuff can be recorded, there?s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O?Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Apparently it only applies to those in power, though. If there’s any better demonstration of the privilege of the rich and powerful, it’s difficult to think of an example that beats Judge Posner poo-pooing the idea that the public should be concerned about the NSA and its surveillance powers.

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Comments on “Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated”

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That One Guy (profile) says:

Re: Re: Re: Re:

Just. Once.

You’re right, just once I would love to see those endorsing the idea that ‘Anyone who wants privacy has obviously done something wrong’ put on the spot and forced to either follow their own argument by handing over their phone/computer for others to dig through, or admit their argument is full of crap.

I don’t care if it would be ‘rude’, or ‘uncalled for’ or ‘out of line’, if someone is trying to undermine my privacy, then they deserve to find out what it’s like from the other side.

Anonymous Coward says:

as always, this is providing he isn’t on the receiving end! if everything he did was documented, from the time he had a crap in the morning to the time he banked his checks, he would have a very different attitude, i’ll bet!! what is even worse is that the USA was supposed to be the pillar of freedom! look at what it is now! not a single security force, that is in existence to ‘protect and serve’ does so. each one is more concerned with having as many people thrown in jail as possible, providing they haven’t been shot fatally because they couldn’t get to pay their parking tickets on time!!

Mason Wheeler (profile) says:

No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

You know, when you say “suggest” like that, it carries this unspoken air of a false suggestion, a malicious slander through innuendo.

When you then present as a backing link the case of a man who, for all the good that he did, actually was cheating on his wife left, right and center, and who famously died of something that was most definitely not suicide, doesn’t it kind of undermine your point?

Anonymous Coward says:

Re: Re:

No, not at all. Just because someone doesn’t succumb to the pressure applied by unethical government agents to commit suicide based on their spying, whether the evidence they used to apply that pressure was credible or not doesn’t mean that privacy is overrated.

The fact that the FBI made such a “suggestion” based on their spying is what supports the point. MLK could have died of old age and the fact that the “suggestion” was made still supports it.

Allegations don’t have to be true to be believed and ruin a person’s life. If they happen to be true, it doesn’t make blackmail or the spying justified either.

Anonymous Coward says:

The real problem with lack of privacy

The real problem with a lack of privacy isn’t always because you have something to hide. It is due to how people react to what you do, what you have, what you believe. These days, everybody expects everybody else to be just like them and they flip out when they find out they aren’t.

ltlw0lf (profile) says:

Re: The real problem with lack of privacy

It is due to how people react to what you do, what you have, what you believe.

Look no further than teachers being fired from work due to what they choose to place (or what others choose to place) on their Facebook pages. Stuff that is outside of work, that has absolutely no impact what-so-ever on work, and in many cases is really nobody elses’ business.

When we, as a society, have to worry about how someone, anyone, may mistake, confuse, or react to what we consciously (or what others consciously) place in the public or semi-private forum, we’ve all lost. It isn’t about taking responsibility for your actions, it is about taking responsibility for that what the most dense, most intellectually challenged, and/or most willing to jump to illogical conclusions based on limited evidence among us may possibly infer by it.

Anonymous Coward says:

“If Judge Posner really believes what he’s saying about privacy, and if it’s really true that he personally has nothing to hide – he just has some cat videos and some pictures of his grandkids – then he should prove that with his actions. Every day, he should publicly post online all of the emails he sends and receives, along with transcripts of his telephone and in-person conversations. Or just put a recording device in his office and on his person, and upload the full audio every day. He should also put video cameras in all the rooms in his home and office, and stream it live on the internet 24 hours a day. If there’s a specific reason for excluding a particular conversation – say, something relating to attorney/client privilege – he can post a log identifying the metadata of the withheld communications. If he agrees to this framework, I’d work hard on a campaign to raise the funds to do this, and have no doubt the money could be raised very quickly.” – Greenwald


Anonymous Coward says:

Corrupt Judge

Poser is a dirt bag… its a shame that anyone prepared to teach him his folly would get into trouble.

I bet the moment someone hacks into his private data and shows it to the world he will be screaming like a girl wanting the person responsible in jail.

You keep things private from people because they judge you for it. Even things you eat and drink can get you picked on. Humans are just that way… and the government is ran by humans… of course often of the type attracted to the power and usually the ones you should trust the least not the most!

OldMugwump (profile) says:

Privacy IS overrated...

But the one critical aspect of privacy that Posner misses is that it can be used to hide dissent. And that is crucially important to any free, liberal society.

Political freedom is meaningless without the freedom to conspire for a change of government, in favor of opposition candidates, for changes in laws, in general to work to overturn the powers-that-be…without those powers-that-be knowing about it.

I’m with David Brin in thinking that privacy is, in general, overrated – so long as officials and those in power are willing to be equally transparent (which they aren’t).

But this one crucial aspect of privacy is absolutely critical to any semblance of democracy.

Anonymous Coward says:

Re: Privacy IS overrated...

The problem with the idea that privacy is overrated is that such a determination is necessarily subjective.

The privacy of closeted gay people or of people with legal, but unpopular interests or habits or of people with social/nervous/mental disorders that make their private lives a refuge from having to keep up appearances of “normality,” is by no means overrated for them. Neither you, nor I, nor Judge Posner has a right to tell them that their privacy is overrated if extreme privacy is how they want to live or feel they have to live.

Share whatever you want about yourself, but don’t pretend everyone else should be okay with the same level of sharing (or involuntary data collection by the NSA).

Pragmatic says:

Re: Privacy IS overrated...

Old Mugwump, you said “Liberal,” and that’s where you lose the argument with those right-wingers who have usurped conservatism and changed its meaning to “Idiocy.”

Many of them have convinced themselves (and each other) that democracy is a liberal value and should therefore be abolished and replaced with a society based on voluntary trading. Result: rule by the rich, but they refuse to accept this would happen.

Political — and social — freedom depends on our willingness to stand against the partisanship that is tearing the country apart.

I’m generally more friendly with liberals because they tend to be more reasonable, even though I don’t always agree with them.

What scares me, though, is the idea that words like “liberal” and “conservative” have become so toxic that we can’t have normal conversations any more, and that each side considers the other to be the enemy. Have you seen that ciasavedlives website? That’s the kind of thing I’m talking about.

The idea that a liberal society is anathema to these people is what frightens me the most.

Cal (profile) says:

Re: Privacy IS overrated...

I agree with everything you say except for this, “But this one crucial aspect of privacy is absolutely critical to any semblance of democracy.”

There is a very good reason that the Pledge of Allegiance refers to our country as a Republic, and there is a very good reason that our Declaration of Independence and our Constitution do not even mentioned the word “democracy”. America is not a democracy, she has never been a democracy, nor will she ever be one. She is a Constitutional Republic. The Founders were extremely knowledgeable about the issue of democracy and feared a democracy as much as a monarchy. They understood that the only entity that can take away the people’s freedom is their own government, either by being too weak to protect them from external threats or by becoming too powerful and taking over every aspect of life.

In a Republic, the sovereignty resides with the people themselves. In a Republic, one may act on his own or through his representatives when he chooses to solve a problem. The people have no obligation to the government; instead, the government is a servant of the people, and obliged to its owner — We the People.

A Constitutional Republic has some similarities to democracy in that it uses democratic processes to elect representatives and pass new laws, etc. The difference lies in the fact that we have a Constitution that limits the powers of the government, spells out how the government is structured, creates checks on its power, plus balances that power between the 3 different branches; reserving that authority which was not authorized to the federal government to the people and the states. Politicians, like all public servants, take an oath to serve, defend and uphold the Constitution of the United States. They don’t pledge allegiance to a political party, and ideology or and a specific group or individual yet we constantly see them putting our legitimate government in the background while they support the factions (parties). That is a felony, and is perjury.

Anonymous Coward says:

Well, if that’s how he feels he needs to resign his position. He swore and oath:

“I, Richard Posner, do solemnly swear (or affirm) that I will [B]support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion[/B]; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”

Cal (profile) says:

Re: Re:

It is a felony to break the Oath, plus perjury.

The requirement for all Federal and State Civil officers to give their solemn and binding Oath is established in Article VI, Section 1, Clause 4.

Federal law regulating oath of office by government officials is divided into four parts along with an executive order that further defines the law for purposes of enforcement.

5 U.S.C. 3331, provides the text of the actual oath of office the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take before assuming office.

5 U.S.C. 3333 requires the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law.

18 U.S.C. 1918 provides penalties for violation of oath of office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.

5 U.S.C. 7311 which explicitly makes it a federal criminal offense for anyone employed in the United States Government to “advocate the overthrow of our constitutional form of government”.

The definition of “advocate” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311.

Executive Order 10450 provision specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate “the alteration … of the form of the government of the United States by unconstitutional means.”
Our form of government is defined by the Constitution of the United States.
Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331 which alters the form of government other then by amendment, is a criminal violation of the 5 U.S.C. 7311.

Webster’s 1828 Dictionary says for “Constitution”: “…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”
If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other Branches, or failing that, the States or the people, must overrule them”.

But who is constitutionally charged with enforcing the US Constitution and each state Constitution and all laws of our land that are in Pursuance thereof the US Constitution?

“We the people” are as the trained Militia of the several states. But until we bring the militia back, and start training we have no one who is lawfully assigned those duties.

The Preamble to the US Constitution; starts with:
“We the People of the United States do ordain and establish this Constitution”,

By those words it is saying that “We the People” are the source of any and all legal status of the state and federal governments. “We” created them for specific purposes, and it was NOT to destroy our lives, control us, spy on us, track us, or murder us. Basically all public officials – state and federal representatives, state and federal law enforcement, state and federal judges, the multitude of state and federal bureaucracies – are called “public servants” for a reason – they are literally our hirelings.

Each state’s Militia is made up of “We the People” protecting our own interests, homes, states, nation, and enforcing our governments. The Militia has as its constitutionally assigned duties to:

Enforce the US Constitution and each state’s Constitution,
Enforce and keep the “Laws of the Union” (which is constitutional laws ONLY),
Protect the country against all enemies both domestic and foreign, and
“to suppress Insurrections and repel Invasions”.

The US Constitution guarantees to each state its own “Republican form of government”. It is every state’s Militia that is the ONLY Constitutionally assigned force to “counter Invasions” and “Domestic Violence” within our nation.

Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American…The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

Richard Henry Lee: “A militia, when properly formed, are in fact the people themselves …”

George Mason, Co-author of the Second Amendment: “I ask, Sir, what is the militia? It is the whole people except for a few public officials. To disarm the people is the best and most effectual way to enslave them.”

“Constitutional rights may not be infringed simply because the majority of the people choose that they be.” Westbrook v. Mihaly, 2 C3d 756

”The Legislature, either by amending or otherwise, may not nullify a constitutional provision.” Rost v. Municipal Court of Southern Judicial District of San Mateo (1960)

There can be no sanction or penalty imposed upon one because of his exercise of Constitutional rights.” Sherar v. Cullen, 481 F. 946

“Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them.” U.S. Supreme Court in Miranda v. Arizona, 380 U.S. 436 (1966)

“State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights.” Gross v. State of Illinois, 312 F 2d 257; (1963).

“Decency, security, and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a Government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Crime is contagious. If government becomes a lawbreaker, it breeds contempt for the law it invites every man to become a law unto himself and against that pernicious doctrine, this court should resolutely set its face.” Olmstead v U.S., 277 US 348, 485; 48 S. Ct. 564, 575; 72 LEd 944 U.S. versus Verdrigo-Urquidez, 110 S. Ct. 1056, 1060-61 (1990)
South v.Maryland/Bowers v. DeVito

Andyroo says:


The only way this Judge will be taken seriously is of he allows all his phone calls and private residences to be monitored by the public , just in case he is guilty of a crime and a danger to the country.

Every person he contacts by any means must also accept their communications and all their records to be made accessible to the public. All his family and friends must be open to being monitored.

this Judge is a person hired by the people to do a very hard job I am sure he has nothing to hide but it would be stupid not to prevent him from being abused and his power being abused in any way the only way to stop this is to monitor every communication he has.

I am sure he will not have any problem with this as he believes if you have nothing to hide then you should not fear being monitored……or is he going to admit he has something to hide by refusing my request. Maybe then we should have the FBI investigate him and monitor all his communications.

ECA (profile) says:


Yes, I like that..
But FIRST, let us access all the information we can on our elected officials, those surrounding them, and how about Our corporations..
RELEASE those first, and I will get back to you about MY PERSONAL info..

Also Judge,
Do you know how Corps and thieves use personal info? Would you like to give us your Credit card number? How about your Social sec number.. With either 1 of those we could steal your Identity..
IF you didnt know..

TruthHurts (profile) says:

You first Posner

After we wire you up for 24x7x365.25 live video, audio, eeg, ekg and every other sensor we can figure out, you can live your life in the public, with absolutely no privacy ever.

You’re a public servant, in office at our whim. Your job is to uphold the Constitution above all else, then the piss-poor laws enacted by our feeble minded Congress critters.

You do not take orders from the Executive branch, and you absolutely do not take orders from the corporate thieves that currently tell you what to do.

Pull your head out of your excrement hole and do the job you were put into office to do, quit being a Constitutional Terrorist and quit wielding Weapons of Constitutional Destruction.

Marlowe says:

The NSA, Privacy, Information Asymmetries, and Heuristic Biases

If privacy is not a right, it is merely a transaction cost. This dichotomy may be a bit extreme, but it provides a pragmatic starting point to furthering the discussion.

Before going any further, I must ask you to accept three premises:

1) Promoting the well being of the greatest number of people is good;
2) The efficient allocation of limited resources allows for the greatest promotion of general welfare;
3) Information asymmetries negatively effect the efficient allocation of resources.

I agree with Posner in the sense that the more information available, the better. Unfortunately, this assumes that information will be rationally acted upon to derive the best possible outcome; and here is where Posner’s position falls flat. Instead, the information will be: 1] asymmetrical; and 2] exploit heuristic biases of decision-makers.

Asymmetrical Information that would otherwise be protected by privacy rights

Imagine two candidates applying for a cryptography position at the NSA. There are pictures online of Candidate A in which he appears to be smoking an illegal substance. Candidate B has no online pictures which would indicate any illegal or socially frowned-upon behavior. Candidate B may get the position merely because they have dedicated significant time and resources to linking all their online persona information to fictitious accounts or otherwise scrubbing their online persona clean. These represent opportunity costs in which Candidate B could have otherwise been reading more about cryptography: its history, its economic implications, and so forth. Candidate A took that same time to further his erudition in cryptography. Candidate B has dedicated his free time to gaming the system and is a worse cryptographer for it -all the same he is likely to get the job.

The Takeaway

1. The lack of privacy has created an information asymmetry based on Candidate B’s scrubbing his online persona.
2. Candidate B’s strategic behavior allowed him to get the job when Candidate A was better qualified -this is inefficient.
3. Society is worse off because Candidate B is better at gaming the sysemt, while Candidate A is a better cryptographer.

Heuristic Biases

Heuristics are cognitive hiccups in our Darwinian brains that reduce complex mental tasks into simpler, inaccurate ones. One of these is called “availability”, which places a disproportionate value on information that we can recall easily from memory.

Let’s continue with the above example regarding candidates “A” and “B”

Candidate A’s situation has not changed -there are a few photos online in which he appears to be smoking an illegal substance. However, Candidate B has been exposed -there is information regarding his cheating on an undergraduate exam.

The candidates are otherwise equal in all respects -so who do you pick?

The Cheater or the Reefer-smoker?

Let’s say that the decision is ultimately left to a three-member board to better ensure disinterest.

Here is a breakdown of the three board members

‘Board Member 1’ believes the decision is simple. The cheating is an intellectually dishonest act; it not only begs questions regarding ethics, but Candidate B’s intellectual chops. In contrast, Candidate A merely used a recreational drug which is now legal in Washington and Colorado, with more states likely to follow.

‘Board Member 2’ also believes the decision is simple. Board Member 2 has a nephew who smoked marijuana when he was eighteen and by his early twenties had graduated to heroin. His nephew is now experiencing life through intermitted states of rehab and recovery. There is no doubt in Board Member 2’s mind that marijuana is a gate way drug -despite a sample size (one) that is not statistically significant from which to draw any inferences about marijuana usage.

‘Board Member 3’ believes the decision to be much more complicated. He agrees with the first board member’s position on cheating; however, he recently watched a television report on Fox News regarding the detrimental effects of marijuana use. The young, striking Fox News reporter (a former personal trainer) reported that a new study has empirically demonstrated that marijuana greatly diminishes a user’s causal reasoning skills.

Notwithstanding the study was funded by a pair of billionaire conservative brothers and likely had political machinations, Board Member 3 easily recalls the story during the decision-making process. The National Institute of Health even issued a statement undercutting the veracity of the study -but this was reported on page seven of the New York Times (not even a color photo!).

Board Member 3 vividly recalls this news report (he missed the Times article) and the reporter’s beautiful skin tone when he chooses Candidate B.

The Takeaway

1. Information that would have otherwise been protected by privacy rights, led two decision-makers to heuristically flawed conclusions regarding the best possible outcome.
2. Board member’s 2 & 3 heuristic biases led choosing a candidate with a lower probably of success.
3. The inefficient decision detrimentally effects the well-being of society.

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