At a recent conference on cybercrime, Judge Richard Posner, a well-known federal appeals court judge and one of the founders of the “law and economics” movement, said that the needs of national security trump a supposed right to privacy. The NSA spying programs should be allowed to proceed unimpeded by the wishes of people to keep their private activities from the public.
Posner said, “I think privacy is actually overvalued. . Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. . .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.. . If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,What’s the big deal?. . .. Other people must have really exciting stuff. . .Do they narrate their adulteries, or something like that?” Posner’s comments are taken from this account.
Posner has wrongly posed the main issue at stake in the NSA programs. It is not national security versus an untethered right to privacy, but people’s natural rights to life, liberty, and property versus assaults on these rights by the government. As Judge Andrew Napolitano, a jurist far better grounded in moral theory than Posner, points out in his outstanding new book Suicide Pact, “security” is a derivative good that cannot be balanced against inherent rights. The government has no right to examine telephones against the wishes of their owners. The choice we face is not between national security and privacy, as Posner imagines, but rather between respect for rights and an Orwellian police state.
