Academic journal article Michigan Law Review

The Fight to Frame Privacy

Academic journal article Michigan Law Review

The Fight to Frame Privacy

Article excerpt

THE FIGHT TO FRAME PRIVACY NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY. By Daniel J. Solove. New Haven and London: Yale University Press. 2011. Pp. ix, 210. Cloth, $25; paper, $18.


The resolution of a debate often hinges on how the problem being debated is presented. In communication, sociology, psychology, and related disciplines, this method of issue presentation is known as framing.1 Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion.2 For example, people are more willing to tolerate rallies by controversial hate groups when such rallies are framed as free speech issues, rather than disruptions of the public order.3

Consider two questions: As guardians of civil rights, how should judges protect our privacy against the ever-increasing scope of government surveillance? When should judges defer to other branches of government that are better suited to understand when surveillance is necessary to ensure our national security? While these questions are constructed differently, disputes involving privacy and security can utilize either one. Yet the interchangeability of these questions should not be taken to mean that their construction is neutral. Indeed, the choice of which question to ask may predetermine the outcome of the dispute.

Judges, lawmakers, and the public all use and are influenced by frames.4 This influence is particularly important in the battle for privacy and security. To date, the dominant frame pits security against privacy. Those who support government collection and analysis of personal information in the name of security often justify any accompanying threats to privacy with some form of the argument, "I've got nothing to hide." This statement implies that privacy is only needed if a person is concealing wrongdoing. By this account, privacy must yield to security measures because privacy appears less justified than security.5

In his important new book, Nothing to Hide: The False TradeoffBetween Privacy and Security, Daniel Solove6 argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. Solove understands that privacy is far too vital to our freedom and democracy to accept its inevitable demise.

The central thesis of this Review is that Solove's polemic is a strong and desperately needed collection of frames that counterbalances the "nothing to hide" argument and other refrains so often used in privacy disputes. Nothing to Hide is succinct and accessible. In his ambitious quest to concisely respond to a wide range of problems, however, Solove risks leaving the reader unsatisfied, wanting more details about his proposals to untangle the tension between privacy and security.7 Yet this critique does not detract from the importance of this book as a collection of frames to counter a popular narrative in the privacy and security debate.

Part I of this Review discusses the central arguments of the book by examining frames that are contrary to the commonly adopted narratives. Instead of reviewing the numerous arguments in the order in which they appear in the book, this Review consolidates the arguments into groups of frames, such as the "judges as guardians" frame, the "privacy as a societal value" frame, and the "fruitless focus" frame.

Part II addresses some of the "security side" arguments that deserve more attention, including the framing of proposed security measures as feasible or works in progress that must be deployed in order to be improved on. Part III proposes several additional frames that support the basic premise of Nothing to Hide, including confidentiality, obscurity, and the commonalities between privacy and security. …

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