Commentary & Opinion
3:49 pm
Tue May 1, 2012

Stephen Gottlieb: What’s Wrong with Spying?

 

The AP recently revealed a spying operation by the New York City police on Muslims and Muslim institutions. What should we think about that?

Several years ago I arranged to teach a course on Privacy Law because I wanted to figure that out. I read, studied, corresponded with experts in the field and chaired a committee to come up with solutions. Here is some of what I’ve come up with.

First, the American people do not see the problem with having to reveal information – they figure if you’ve done nothing wrong you have nothing to hide. They are flat wrong about that because of the ways that information is circulated and misused. People are put on no fly lists or removed from voter lists without warning or an opportunity to be heard until long after – if they can figure out who has what information on them and how it was used to deny them what they had a right to. Much of what happens is out of sight, careless and arbitrary. So yes, information can be dangerous even for people who are completely law-abiding.

Second, partly because most Americans don’t understand the problem, it has become very difficult to convince the public that spying by police and other official agencies should be curbed at all. So we need to think about these problems in new ways that may have a chance with the public and therefore a chance of working.

Third, I think you have to differentiate between acquiring information and what happens with it. Arguably merely getting information, by itself, if nothing else happens, doesn’t do anyone any harm. Of course breaking and entering to get it is a harm. Stealing is a harm. Stopping people on the highway or the street because of the color of their skin, keeping them from going on their way, scaring the wits out of them, are harms. In one case stopping a physician and his wife on their way to Church and literally in their Sunday best because the police claimed they were in too nice a car for African-Americans and they suspected drugs, and then leaving them at the side of the road with a disassembled car, that is a harm. Subjecting anyone, Muslim, Black, Hispanic, or just teens, anyone, to coarse and disrespectful treatment because they happen to be the wrong color or faith or age or any similar non-reason, is a harm. Individually and collectively these can be serious harms. The harms are in the ways the information is acquired and the ways it is not secured, and the ways that it is misused for illegitimate purposes, or illegitimately even if the officers think they are pursuing a good purpose. But just knowing?

There are well documented examples of investigatory agencies using information for extortion or to embarrass people politically. Photographs of women caught unclothed, or who agreed to remove clothing to reveal an injury, have been passed around like so much porn, coming to light because some of the people who saw the photos were people the women knew. These aren’t idle fears. It’s not because the officers are government – it’s because they are people and could not be trusted with the opportunities they had to misuse and abuse.

So, if the police were only getting to know the folks in the neighborhood, including the mosques or other places of worship, and they had good controls against misuse of the information, I would relax about it.

It’s because I know they don’t have good controls, and because they resist every effort to hold them accountable, that I conclude that if they were so innocent they’d have nothing to hide.

 

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

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