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.

Filed Under: 4th amendment, alex kozinski, nsa, privacy, richard posner, surveillance

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  1. identicon
    Marlowe, 26 Dec 2014 @ 7:05am

    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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