by Daniel J. Solove. New Haven: Yale University Press, 2011. 256pp. Cloth. $25.00. ISBN: 9780300172317.
Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. Rkessler [at] sulross.edu.
Daniel Solove’s basic contention is that, in post-9-11 America, the legal balance has tipped too heavily to the security side at the expense of privacy. The goal is to respond to those who argue that major sacrifices in privacy are necessary for national security. He argues that such deep sacrifices in privacy are not really necessary to preserve security. The balance does not have to be viewed as a zero-sum game. His aim is to “refute the recurrent arguments that skew the privacy-security debate toward the security side” (p.3). Solove believes that the question should not be whether privacy can be protected; it should be how it can be protected without unnecessarily sacrificing security. It is contended that the law, especially the Fourth Amendment needs to be re-focused in a manner that will better protect privacy. As readers might expect, the book deals almost exclusively with the U.S. Constitution, the case law thereon, and federal statutes.
Solove is John Marshall Harlan Research Professor of Law at George Washington University of Law School. Some of the material is adapted from the author’s numerous law review articles. In contrast, the intended audience here is a general one. However, the average reader may find some discussions of the law difficult to follow. Readers of this review should be aware that this reviewer is not a member of the intended audience.
The 21 short chapters are organized into four parts. Only selected issues will be covered in this review. The first part discusses how we should assess and balance the values of privacy and security. The second part deals with how the law should deal with that balance in times of national crisis. Part Three covers how the Constitution should protect privacy. The final part discusses how the law should deal with rapidly changing technology.
In the Introduction there is a brief review of the history of the law attempting to balance privacy and security. Included is the famous 1928 quote from Justice Brandies, dissenting in OLMSTEAD v. U.S. The Founding Fathers “conferred, as against government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” (p.7).
The “Nothing to Hide Argument” is discussed in chapter Two. Whenever privacy issues are raised, many argue that they, and other law-abiding persons, [*515] have nothing to hide. Only those who are engaged in wrongdoing have something to hide. Privacy protects only wrongdoers, and they do not deserve privacy. Solove contends this argument is based on faulty assumptions. First of all, everyone has something to hide. In today’s complex legal world, if the government dug hard enough it could probably find some crime to pin on most everyone. Secondly, most people justifiably hide many lawful personal activities. Finally government collection of even basic data can be cumulated and used by government to make decisions about people, without giving people the ability to participate in the use of the information. Solove argues that even if a person isn’t doing wrong, he may still want to keep his records, conversations, and so on hidden from government officials who might draw faulty, negative inferences. He may not want to have to be concerned that many of the things he does will be wrongly interpreted by anxious government snoops. “He might not want to have a computer flag him as suspicious because he has an unusual pattern of behavior” (p.29). Although Solove presents no examples, the government’s secret suspected terrorist and no-fly lists, and the problem of false positives, come to mind (e.g. American Civil Liberties Union, 2011). Another example would be proposed legislation giving the U.S. Attorney General discretionary authority to deny the right to purchase firearms to those suspected (but not yet arrested, charged or convicted) of being terrorists (Lautenberg, 2011)
In chapters Three and Four, Solove argues that the choice is not between a security measure and nothing, but between security measures at the discretion of government and those which are subject to judicial challenge on the basis of constitutional violations. Courts should not be so deferential to the executive. Courts should demand evidence that there are potentially real security gains that can justify compromising privacy rights.
The argument that privacy isn’t merely an individual right is treated in chapter Five. Solove raises a number of interesting philosophical and legal issues. He argues that privacy is not just an individual interest; it is also an important societal interest. Thus, the balancing must go beyond individual interests. He criticizes communitarian and other philosophies which tend to view individual rights as being in conflict with the greater social good. Solove argues that privacy promotes civility and order in society, and encourages the exercise of constitutional rights.
In the chapters in the section on civil liberties in times of national crisis, Solove makes a number of interesting arguments. He argues against the assumption that privacy is automatically entitled to less protection in times of crisis. In times of crisis, we should be more vigilant, not less vigilant in safeguarding rights. He points out that in “times of crisis, the government – often with support of a majority of the public – is far too willing to make sacrifices. These sacrifices often involve the rights and liberties of minorities and dissidents” (pp.56-57). When people say they are willing to give up rights in time of crisis, they are usually not talking about themselves. [*516]
In Part II, Solove argues that courts make it too easy for government to argue state secrets, war powers and national security to prevent the public and courts from finding out what government is really doing. That situation and a number of other factors are seen as leading toward weakening the rule of law.
Part III deals with Fourth and First Amendment issues. Solove criticizes the general decline in Fourth Amendment protections in recent decades. He notes how little protection current law gives to the technology used by millions of people. Part of the fault is with defining a ‘search’ in terms of a reasonable expectation of privacy. The Supreme Court has narrowed the expectation of privacy to limit Fourth Amendment coverage. The focus should be a more pragmatic one – the real-world effects on real people. However, his test, whether the government activity “causes a problem of reasonable significance” (p.116), remains vague as it is not adequately elucidated. Further, he criticizes suspicionless searches, and argues for a broader requirement for warrants. Readers with some legal background may find some of this Part vague and want more detail and clarity.
Perhaps surprisingly, Solove argues against the exclusionary rule. “Despite the rules' virtues, its vices now strike me as too significant to tolerate.” (p.139). He argues that it should be used only when courts find knowing, bad faith violations. However, he fails to note that with various types of “good faith” and other exceptions to the rule, the Supreme Court is already largely doing this (Del Carmen 2010, pp.102-113). Like the U.S. Supreme Court majority in HUDSON v. MICHIGAN (2006) and other cases, he argues that the social costs outweigh the deterrent effects, and that other remedies are more effective.
Because invasions of privacy often chill exercise of First Amendment freedoms, Solove argues that the First Amendment should become a much larger part of the law of this legal landscape. He argues that when the First Amendment is implicated, the gathering of information should be upheld only when it is narrowly tailored to serve a substantial government interest.
New technologies are the topic of the final part of the book. Among these issues are internet and e-mail privacy, public video surveillance, data mining, and biometric IDs. Solove argues that government must make more effort to avoid dragnet approaches and minimize the gathering and use of electronically acquired information. Second, information gathering should be confined to those about who the government has a reasonable suspicion of criminal activity. Thirdly, such data gathering should be scrutinized by legislatures and courts.
With regard to the growing use of video surveillance in public places, Solove argues against current Fourth Amendment doctrine which declares that people have no reasonable expectation of privacy in public. He argues that people do in fact have some privacy interests in public activities, and contends that we need more protection for such activities.
Overall, Solove makes convincing arguments that we need to refocus the debate and make more effort to protect [*517] privacy, Fourth Amendment and First Amendment rights. This can be done without seriously damaging national security. For instance, if the law demands some evidence that the government activity has some real-world benefits for security; we can discard unnecessary invasions that fail to further security interests. This is a very timely and thought provoking book. Being so short, some readers might find it wanting in details, examples and explanations. However, this work is one very, very, good place to start.
American Civil Liberties Union. 2007. “Terrorist Watch List Attacked for Size, Ineffectiveness.” http://www.aclu.org/national-security/terrorist-watch-list-attacked-size-ineffectiveness-house-committee-grills-governme . Accessed June 18, 2011.
Del Carmen, Rolando. 2010. CRIMINAL PROCEDURE: LAW AND PRACTICE. Belmont CA: Wadworth.
Lautenberg, Frank. 2011. “Denying Firearms and Explosives to Dangerous Terrorists Act of 2011.” http://lautenberg.senate.gov/assets/terrorgap.pdf . Accessed June 18, 2011.a
OLMSTEAD v. U.S., 277 U.S. 438 (1928).
HUDSON v. MICHIGAN, 547 U.S. 586 (2006).
© Copyright 2011 by the author, Raymond G. Kessler.