The Bush/Obama Privacy Doctrine: Privacy for the Government; For The Rest Of Us, Not So Much

By Mike Dorf

Consider the juxtaposition of the trial of Bradley Manning--and more generally, of the Obama Administration's vigorous pursuit of leakers/whistleblowers and journalists facilitating leaks--with the Administration's simultaneous efforts to mine phone and internet records of millions of presumptively innocent private parties.  Taken together, these policies suggest what I'll tentatively call the Bush/Obama Privacy Doctrine, under which the government is entitled to privacy but individuals are not.

Of course I recognize that the foregoing is not entirely a fair comparison.  The government and private individuals are not identically situated.  They have different interests in maintaining privacy/secrecy and the sorts of reasons that may be advanced for overriding privacy/secrecy may be different.  Thus, it is at least possible that each of the actions is justified: the prosecution of Manning; surveillance of journalists in order to ferret out leakers; mining of Verizon customer data; mining of Apple, Facebook and Google data of foreigners overseas; etc.  Nonetheless, the overall pattern that emerges from the programs in the news--and from programs dating back to the Bush Administration that have been continued or intensified under Obama--does fit the pattern I have just described.

Is there anything wrong with that?  In a word, yes.  Again, notwithstanding the possibility that any particular zealous protection of government secrecy or intrusion on individual privacy might be justified, even in times of national security threats, a constitutional democracy ought to begin with the following baseline: Presume that the business of government is open unless there is a good justification for secrecy and presume that the lives of individuals are private unless there is a good justification for snooping.  Mounting evidence suggests that over the last decade and change, those presumptions have been, if not quite reversed, at least substantially altered.

Joint consideration of the respective reasons justifying privacy for government and individuals proves instructive.  Let's consider a few of them.

1) Avoiding Embarrassment

Individuals value privacy in part to avoid disclosure of embarrassing details of their private lives.  Much that people do in private would be embarrassing if revealed to the wider public, or even to a few government snoops, even though it is wholly innocuous.  Intrusions on privacy that lead to embarrassment--or intrusions that lead people to worry about embarrassment--are thus costly.

By contrast, the government has no interest in the avoidance of embarrassment as such.  Quite the contrary, some of what may embarrass the government--such as cronyism, venality and corruption--should be disclosed to the public precisely because it is embarrassing.  The aphorism "sunshine is the best disinfectant" finds its roots in the notion that government officials will be less likely to abuse the public trust if they know that they are subject to public scrutiny.

To be sure, the government has interests that, in some ways, look a lot like an interest in avoiding embarrassment.  For example, it was embarrassing to the State Department when Wikileaks revealed cables showing that U.S. diplomats had made disparaging remarks about world leaders in their internal communications.  But the reason why that information would have been better kept secret is not that the government has some generalized interest in not having its "thoughts" communicated to the objects of those thoughts.  The reason was that the revelations could have undermined the ability of the State Department to conduct diplomacy in a dignified way while still having frank discussions internally.

2) Frank Discussion

Accordingly, the interest in avoiding embarrassment, when asserted by the government, is really an interest in something else.  In many circumstances, that means an interest in frank and open discussion.  Claims for executive privilege are often couched in such terms--and I give them considerable credit.  In a wide range of circumstances, sensitive matters can only be discussed openly in a small group if it is understood that the content of the discussions will not be widely disseminated.  People who fear such disclosures will fear to give frank advice or even to appear to consider potentially unpopular options.

The interest in frank discussion applies to all organizations.  In my own experience, it is particularly important in personnel decisions, and any enterprise of any size makes such decisions.  Note, though, that individuals have a similar interest, although it is probably subsumed in larger privacy interests.  People living under totalitarian regimes worry about being shipped off to the gulag, which while very stressful in itself, also makes open discussion of a range of topics impossible.

3) Security

The government's strongest interest for secrecy is, of course, security.  Details, or even the existence, of ongoing operations can tip off the target of a criminal investigation or a military plan.  This is why, even in an opinion that was, for its time, quite protective of speech, the Supreme Court said in Near v. Minnesota that "no one would question but that a government might prevent  . . . the publication of the sailing dates of transports or the number and location of troops." Fair enough.  Yet note that the most famous cases of whistleblowers/leakers do not directly involve operational details of this sort.  What makes people like Manning and Daniel Elsberg so interesting is that they have plausible arguments that they are whistleblowers "embarrassing" the government in a way that serves the public interest and the government has a plausible, albeit amorphous, claim that the leak harms national security.

Nonetheless, there are circumstances in which leaks can unambiguously damage national security and one can fairly argue that once the government has classified information on national security grounds, people like Manning and Elsberg oughtn't to have the freedom to decide on their own that the benefits of disclosure outweigh the risks.

Is there a comparable interest in security at stake for the privacy claims of individuals?  There could be. We can imagine that the disclosure of the fact that Edith has been writing nasty comments in her diary about her estranged ex-husband Frank might lead Frank to do violence to Edith.  Etc.  For the most part, however, when we say that people value privacy for reasons of "security," we mean something more like "peace of mind."  That is a very important interest, but not really the same sort of interest as the one the government advances under the heading of "national security" and the like.

4) Dissent

Finally, individuals have an interest in privacy for their conversations so that they may dissent.  By "dissent," I do not necessarily mean the making of public statements.  Someone might be willing to post "the governor is a jerk for signing this bill" on a Facebook page shared only with friends, even though she would not say such a thing at a press conference.  Or, for someone more savvy about how easy it is for electronic communications to go viral, to say "the governor is a jerk for signing this bill" when talking on the telephone to a friend.  But knowing that the NSA or the FBI may be listening to our conversations will undoubtedly have a chilling effect on speech, especially dissenting speech.

There is a comparable concern with respect to the government but it cuts in both directions.  On the one hand, as noted above, a regime of too-much disclosure of internal deliberations can chill the openness and frankness of those internal deliberations.  But meanwhile, a regime in which leaking is punished severely will chill whistleblowing.  Even if one thinks, as I do, that the Mannings and Elsbergs of the world should not have carte blance to decide when they get to leak for the public interest, there is at least some place for whistleblowing.  As Steve Coll noted recently in The New Yorker, prior to the Obama Administration, one way that the government acknowledged this place was by laying off of the press: Elsberg was fair game, but not the NY Times and the Washington Post.  And (to move the issue to the day's news) not--one would have hoped--millions of people who happen to be customers of Apple, Facebook, Verizon, or Google.