Chicago Law Professor Claims No Privacy In Your Emails, As Long As The Content Isn't Used To Detain Or Harass You

from the oh-really? dept

Mon, Nov 18th 2013 7:26am — Mike Masnick

Eric Posner, a law professor in Chicago and a full-blown supporter of extreme authoritarian governments (he's even written a book about why the US presidency needs more power and less respect for the Constitutional separation of powers), is, not surprisingly, a big fan of the NSA's surveillance efforts. In the past, he's mocked Snowden and Manning, and talked up why a government that keeps secrets is better than one that's actually accountable to its public. In other words, he's the perfect stooge to try to come up with a justification for Rep. Mike Rogers' ridiculous claims that your privacy isn't violated if you don't know about it.

His latest article isn't directly a justification for that statement -- in fact, it doesn't even mention it -- but it's clearly cut from the same cloth. He makes the argument that the NSA should keep spying on all foreigners in part because they spy on us (and also because he thinks we're good at it). However, he also has a rather unique interpretation of privacy:

Mass surveillance—where emails and other communications are vacuumed up, stored in databases, and then searched for keywords—doesn’t harm anyone in itself. The problem only arises when the information is used to detain, interrogate, or harass people.

He's using this bizarre and laughable line of argument to suggest that it's okay when governments spy on citizens in other countries because their "intelligence agents do not have the time or inclination to harass random Americans, nor the capability as long as Americans remain in the United States." So, in his mind: no privacy violation happens.

He doubles down on this thinking later, arguing again that if there's no known "harm" to the individual, there's no privacy issue at all.

Suppose that the NSA collects the emails of foreigners and conducts searches of them for keywords. Occasionally a false positive turns up, and an analyst reads someone’s email to his lover, therapist, or doctor, ascertains that the email contains no information that identifies terrorists or other security threats, and deletes it. The writer of the email never finds out, and the analyst of course has no idea who this person is. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears a snatch of personal conversation on the bus.

Of course, how hard is it to reword that paragraph just slightly, to demonstrate the insanity of Posner's claim?

Suppose that some hackers collect the emails of Eric Posner, and conducts searches of them for keywords. Occasionally a really embarrassing one turns up, and the hacker reads about Posner's sexual proclivities, financial difficulties, medical problems or similar such things, ascertains that the email contains no information that identifies crimes that Posner is planning to commit and deletes it. Or maybe he saves it for use at a later date. Or to share with a friend. Or a lot of friends. Posner never finds out, and even though the hacker knows who Posner is, he'll never see him in person. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears Eric Posner talking on a bus.

Posner's basic assumption is flat out crazy. He's arguing that there's no privacy violation until something bad happens with the information, not when it was seized, and not even when it was perused by human eyes -- but only when something nebulously bad happens with it. That makes no sense. The violation comes much earlier. There is real harm in having your information exposed, even if you don't know about it.

Beyond the fact that Posner is simply wrong about when the privacy violation occurs, even if we accept his wacky argument, he's still wrong. That's because he's making two giant assumptions. First, that such information isn't abused. He pretends that "national borders" protect spying on foreigners because you can't do something legally to a person in another country. I would imagine that people killed by US drone strikes might disagree with that assessment. He also argues it's unlikely that there would be many abuses of this information, because any abuses would harm the spying country and its spies once they came out. Pretty much all of civilized human history suggests that's wrong. Give people power, as Posner is aching to do, and they abuse it. Over and over again. But, I guess he's okay with that, just as long as he never finds out about it. Dictatorships and ignorance are bliss!

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Filed Under: emails, eric posner, nsa, privacy, surveillance

39 Comments

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That One Guy (profile), 18 Nov 2013 @ 6:03am

As the saying goes: 'Put up or shut up'
I'll take these kinds of people, those who claim that there's nothing wrong with the NSA and similar agencies spying on everyone because it's not really that bad(honest!) seriously when they back their words up with action and start making public their emails, phone calls, medical information, purchasing history, and other private information.

In this case the one doing PR duty for the NSA has even given himself an easy way to demonstrate that he believes what he's saying, all he has to do is make public his email account, in case anyone is curious as to who he's talking to and what they're saying. By his logic, as long as no one uses his private communications to 'detain, interrogate, or harass' him, then no violation of his privacy has occurred.

Of course I'm sure he'd consider even asking for such a private thing would count as 'harassing' him, but that would just showcase his hypocrisy even more, so win-win either way.
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out_of_the_blue, 18 Nov 2013 @ 7:42am

So same position as Google.
It's Not A Surprise That Gmail Users Have No Reasonable Expectation Of Privacy

http://www.forbes.com/sites/gregorymcneal/2013/08/20/its-not-a-surprise-that-gmail-users-have -no-reasonable-expectation-of-privacy/
"The new Google privacy policy is: You have no privacy."

03:42:28[d-765-1] [ This is necessary to suppress the kids here from fraud of using my screen name. ]
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Anonymous Coward, 18 Nov 2013 @ 7:51am

And the Stupid....
Continues to BURN!
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Anonymous Coward, 18 Nov 2013 @ 7:53am

"The problem only arises when the information is used to detain, interrogate, or harass people."

Nope, wrong. The problem arises when information can be used to target, threaten, attack, or use against someone else when it normally wouldn't be.

If it's stored, that means (surveillance data) has no value right now. If it has no value right now, it shouldn't have value in the future.
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weneedhelp (profile), 18 Nov 2013 @ 7:54am

Guy looks like he should have a pedo bear in every picture:
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SolkeshNaranek (profile), 18 Nov 2013 @ 7:54am

Law professor
Just goes to show that even a law professor can be as full of shit as a well fed goose.
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Rikuo (profile), 18 Nov 2013 @ 7:56am

Re: So same position as Google.
How is it fraud to use your handle? Fraud is a legal term and no-where have I ever heard it said that using an online handle that someone else uses is fraud. If you were to use the handle Rikuo (obviously not the account here on TD, since that has a password) that would not be fraud on your part. I would not claim such.
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That Anonymous Coward (profile), 18 Nov 2013 @ 7:58am

So release all of your "metadata" to me Prof.
I PROMISE I won't use it to harass you.

Wanna buy a bridge?
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Anonymous Coward, 18 Nov 2013 @ 8:03am

Re: So same position as Google.
yup, I can't for the life of me understand why anyone would use a cloud-based mail service (especially if it's abroad, like gmail for me. Especially^2 if it's in the US).

However, there's a difference between not being able to use one company's service because of privacy concerns, and not using an entire communication medium. It's easy to set up e-mail, it's easy to secure it to a reasonable level. It's quite hard to make sure the mail never routes through some specific other countries.
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Designerfx (profile), 18 Nov 2013 @ 8:04am

2 posner's
Who is this crazy guy? Oh, the son of Richard Posner? I guess bad apples don't fall far from the tree, so to speak. Why he got his son into law is anyone's guess, but clearly not the right decision.

How much does this guy pay to clean up his wikipedia profile? It seems like a lot of money, given how magically non-controversial it is (in comparison to his claims). http://en.wikipedia.org/wiki/Eric_Posner
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Anonymous Coward, 18 Nov 2013 @ 8:06am

Re: So same position as Google.
It's Not A Surprise That Gmail Users Have No Reasonable Expectation Of Privacy

http://www.forbes.com/sites/gregorymcneal/2013/08/20/its-not-a-surprise-that-gmail-users-have -no-reasonable-expectation-of-privacy/

Of course, if blue actually read TechDirt, he'd know that's not what Google said. At all. But this is blue and blue doesn't do facts.

http://www.techdirt.com/articles/20130814/14262524177/
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Zakida Paul (profile), 18 Nov 2013 @ 8:07am

So he thinks the government need more power? He clearly has never heard of Edmund Burke who quite correctly stated "The greater the power, the more dangerous the abuse".

Honestly, I would expect a law professor to know better.
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bgmcb (profile), 18 Nov 2013 @ 8:11am

Eric Posner is writing about law professor David Cole.

I don't know what Eric Posner is other than a tool.
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Anonymous Coward, 18 Nov 2013 @ 8:15am

He's arguing that there's no privacy violation until something bad happens with the information,

The problem is that it might take many years before something bad happens. Storing the data make what was an accepted point of view now a reason for bad things when a government changes form.
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DannyB (profile), 18 Nov 2013 @ 8:21am

If he likes extreme authoritarian governments so much...
If Eric Posner likes extreme authoritarian governments so much, why doesn't he just move to one?

There are a number of candidate countries that would qualify, and at least one of them must be to his liking.

It seems like this would be so much easier than trying to turn the US into an extreme authoritarian governments -- even though it seems to be happening anyway.
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Anonymous Coward, 18 Nov 2013 @ 8:25am

Mass surveillance
Mass surveillance�where emails and other communications are vacuumed up, stored in databases, and then searched for keywords�doesn�t harm anyone in itself.

� The Berlin Wall was erected beginning in 1961.
� Eric Posner was born in 1965.

So Eric Posner was born into a world where the Berlin Wall had stood already for four years. In those four years, JFK had come to Berlin and gone, and the first wire fence cutting off Berlin had been improved. The improved wire was replaced with concrete beginning in 1965, perhaps around the time Eric was conceived.

When Eric Posner was about ten years old�
The "fourth-generation wall", known officially as "St�tzwandelement UL 12.11" (retaining wall element UL 12.11), was the final and most sophisticated version of the Wall. Begun in the year 1975 and completed about 1980, it was constructed from 45,000 separate sections of reinforced concrete, each 3.6 metres (12 ft) high and 1.2 metres (3.9 ft) wide
The Wall stood until�
In 1989, a series of radical political changes occurred in the Eastern Bloc, associated with the liberalization of the Eastern Bloc's authoritarian systems and the erosion of political power in the pro-Soviet governments in nearby Poland and Hungary. After several weeks of civil unrest, the East German government announced on 9 November 1989 that all GDR citizens could visit West Germany and West Berlin. Crowds of East Germans crossed and climbed onto the wall, joined by West Germans on the other side in a celebratory atmosphere. Over the next few weeks, a euphoric public and souvenir hunters chipped away parts of the wall; the governments later used industrial equipment to remove most of the rest. The physical Wall itself was primarily destroyed in 1990.
Eric Posner was about 23 or 24 years old when the Wall crumbled.

�

Mass surveillance of a population corrodes the fabric of a society, coursening the people. It strikes fear into people �they censor themselves� limiting not just the things they dare to write and say out loud, but going so far as to limit the range of thoughts they dare to think.

�
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Anonymous Coward, 18 Nov 2013 @ 8:27am

I suppose this authority brown noser won't mind if I dig through all his personal communications then, right?

Oh wait what, he won't give me his password? Thought so. Practice what you preach, mate.
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P., 18 Nov 2013 @ 8:36am

Postcard
Email is as private as a postcard. Treat it as such. Anything you write in one could be read by any server between you and the recipient.

If you must send sensitive data through email, encrypt it.
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sorrykb (profile), 18 Nov 2013 @ 8:37am

Posner asks:
Has a human right been violated?

Well, yes.
Universal Declaration of Human Rights, Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
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Anonymous Coward, 18 Nov 2013 @ 8:40am

delete?
Occasionally a false positive turns up, and an analyst ... ascertains that the email contains no information that identifies terrorists or other security threats, and deletes it.

I've haven't heard that there's deleting going on. Everything I've read indicates that any accidental records that get scooped up are fair game for future scavenger hunts (with no justification required).
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Anonymous Coward, 18 Nov 2013 @ 8:42am

Re: If he likes extreme authoritarian governments so much...
An authoritarian government is no place for another authoritarian to migrate to, they will have no power as an immigrant. It is much safer for a would be authoritarian to proclaim their views in a country that still has a degree of free speech. Under an authoritarian regime it is only reasonably safe to make one views known if you are part of the power elite. Anybody outside the elite, even if they have similar views, becomes a competitor for power if they speak out.
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Not an Electronic Rodent (profile), 18 Nov 2013 @ 8:44am

Oops, I think I spot a slight gaping hole there...
"intelligence agents do not have the time or inclination to harass random Americans, nor the capability as long as Americans remain in the United States."
Well that part of the statement might almost be true... except for 1 tiny thing that seems to have been overlooked.
The NSA has shown itself more than willing to share the information with other law enforcement bodies in the United States (as well as out), and they do have "the time, inclination and the capability to harass random Americans in the United States."

So I'm sorry Mr Posner but, like the man wearing cellophane shorts, I can clearly see you're nuts.
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Bengie, 18 Nov 2013 @ 8:45am

Obvious
Of course he's a lawyer, but he may want to take a look at a history book once in a while.

My guess is his reading comprehension is not that good, but that won't ever stop a lawyer because they make up their own interpretations of text.
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out_of _the_blue, 18 Nov 2013 @ 8:55am

Re: So same position as Google.
03:42:28[d-765-1] [ This is necessary to suppress the kids here from fraud of using my screen name. ]

Like this?

_________________________________________________________________________
8:00:85 My posts aren't complete unless I put in lines
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Spaceman Spiff (profile), 18 Nov 2013 @ 9:02am

Making a point...
Just the fact that our personal communications are intercepted can, and should be, viewed as harassment and an invasion of our privacy. This is illegal, unconstitutional, and just plain obnoxious! Just "metadata" be damned! I want these asshats thrown into durance vile for their crimes!
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roarshock44, 18 Nov 2013 @ 9:04am

your privacy isn't violated if you don't know about it

actually, i am very pleased with this line of reasoning.� it means i can slip into someone's home, find the lady's panty drawer and learn what she likes, visit that bedside drawer, and maybe enjoy myself a little bit, and i did nothing wrong if no one but me knows about it.� and i have a national representative and maybe a chicago law prof to back me up.

excuse me, please, i have some preparations i need to get started on.
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John Fenderson (profile), 18 Nov 2013 @ 9:06am

What about harm to society?
The greatest harm with massive surveillance is not individual affronts. It is the harm to society at large. The worst abuses of the past were of the sort that specific individuals under surveillance were often unaware of: for example, the information gathered can be used to steer organizations away from the individual in terms of employment, publishing, etc., because of the individuals private political speech or associations. There is also the massive chilling effect on private speech -- if everyone knows for a fact that the government is listening, then people will not speak their minds freely with each other.
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TANSTaaFL (profile), 18 Nov 2013 @ 9:15am

CREEPY
According to Posner's logic:
"never finds out, and the analyst of course has no idea who this person is. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm"

So then as long in his world:

--A college guy having sex with a passed out girl who never finds out (as long as she isn't pregnant or has contracted a disease)is neither a "violation" nor "an affront to human dignity".

--Peeping Toms do not violate privacy as long as they never reveal what they are doing and the target never finds out.

--Any corporation/agency/organization can put spyware on your comp, cameras in your house, and GPS tracking on your car and monitor all your activity as long as you never find out and they don't actually "use" it.

This is a creepy line of thinking even if we ignore the naievete of trusting the government never to use it. Allowing the collection of data without seeing its inevitable "use" and abuses is like saying a death threat isn't a violation until the knife point breaks your skin.
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Anonymous Coward, 18 Nov 2013 @ 9:26am

Of course the glaring asterisk in that statement is attached to the word 'person' because as soon as they determine you are of interest to them with your emails and who you talk to on the phone you're no longer a person to them and therefor your human rights can't be violated.
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Dirkmaster (profile), 18 Nov 2013 @ 11:55am

I have two very simple questions for Eric Posner:
1) Did you take Logic 101 in college?
2) Did you pass?
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art guerrilla (profile), 18 Nov 2013 @ 12:14pm

Re: 2 posner's
no shit, the posner family is FULL of authoritarian, status-quo shills...

i *think* probably related to a well-known jfk k-k-k-konspiracy 'debunker', called gerald posner, who is an authoritarian slimeball, too...

again, when i think of anti-american propagandists like the posner klan, i think: *someone* has to be the shills on the spook's payroll...

(make no mistake, i think there are PLENTY of mis-guided, mis-informed, mis-human beans who carry the water of authoritarians without being paid a dime, because that is what the unthinking asshats actually believe; but i am certain there are more than a few who get some lucre for the job...)
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Anonymous Coward, 18 Nov 2013 @ 12:17pm

Re: delete?
Technically, the NSA claims that they're required to delete your emails if: a) they know that you're an American citizen, and b) they don't plan to use the evidence against you.

Of course, it turns out that they have been using the evidence against people for plenty of things unrelated to terrorism or security threats. For instance, they'll happily pass information to the IRS or the DEA -- but when they do, they instruct the recipients to lie about where they got the information, and tell them to construct a false
chain of evidence.

At the very least, that's a clear violation of the Sixth Amendement rights to be "informed of the nature and the cause of the accusation" and to be "confronted with the witnesses" against you; depending on where you draw the line, it may also be a violation of the Fourth Amendment via the exclusionary rule.

In other words, some of the information collected by the NSA can be and is already being used to "harrass, interrogate, and detain people" in violation of their constitutional rights. If they choose not to use your information to harrass, interrogate, or detain you, with the understanding that they'd lie about doing so later, then yes: they're required to delete your emails.
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art guerrilla (profile), 18 Nov 2013 @ 12:21pm

Re: CREEPY
i might add that his 'reasoning' is also flawed in one huge aspect of the 'awareness' aspect: apparently he has no problem when the day comes (VERY SOON) when virtually undetectable nanobots slither into every orifice of his home, body, and brain, and reports back EVERYTHING: bodily functions, blood constituents, 'anomalous' EKG readings, etc, etc, etc, ad infinitum, ad nauseum...

if he has nothing to hide...
*snicker*

seriously, the day of nanobots is not far off, and then -since they are effectively unnoticeable crawling our brains- there shouldn't be any problem with that, richtig ? ? ?

dick...
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DannyB (profile), 18 Nov 2013 @ 12:35pm

Re: Re: If he likes extreme authoritarian governments so much...
Ah, so he's only a fan of extreme authoritarian governments if he's one of the "inner party" (to borrow '1984' language).
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Anonymous Coward, 18 Nov 2013 @ 12:44pm

If that's the case what's wrong with hacking someones email just to read for the lulz?
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Doug (profile), 18 Nov 2013 @ 1:06pm

Re:
Wanted to mark this comment insightful for the first comment. I think that is the crux of the argument on many fronts. Of course, there are lots of things that are OK if we trust the people doing them to behave. Lots of our constitution (i.e. the bill of rights) exist in order to protect against times when people won't behave, and most of our laws serve to protect us against people who don't behave.

So to argue all this surveillance is ok because "trust us" misses the point. It's not ok because it can be used to "target, threaten, attack" etc. Perhaps not now, but later. That's the problem with dragnet surveillance.

You have to imagine what happens if really bad (or just really greedy, or even just really lame) people get into power.
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Doug (profile), 18 Nov 2013 @ 1:19pm

Re: Re:
Oh, forgot to say, your second statement is wrong. Legitimate surveillance on a legitimate target may not have value now, but could have value in the future. Example: you find a target talking to what seems like a wrong number. Later turns out that wrong number was another key suspect. *If* you have a legitimate surveillance interest, then storing the data makes a lot of sense.

But that's the problem with dragnet surveillance, too. Things that seem innocuous now can be "reinterpreted" later when those in power change their opinions. (Think McCarthyism.)
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Anonymous Coward, 18 Nov 2013 @ 1:26pm

Re: Re: Re: If he likes extreme authoritarian governments so much...
Are their any other fans of an extreme authoritarian government?
/rhetorical
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John Fenderson (profile), 18 Nov 2013 @ 2:44pm

Re:
I imagine his answers are:

1) No.
2) Yes.
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