Ari Ezra Waldman | J. Edgar Hoover | Law - Gay, LGBT | News | NSA | Privacy

The NSA, Data Privacy, and Gay Rights

By ARI EZRA WALDMAN

130606-NSA-headquarters-tight-730aYou don't have to be a libertarian to get angry at the jaw-dropping revelations that the American intelligence apparatus has been mining data from various U.S. Internet companies. Many of us are aware that private and public entities know quite a bit about us; data mining, after all, is how the Google banner, Amazon book recommendations, and Facebook sidebar ads work. But few -- outside those of us who study digital privacy -- realized the scope of the NSA's reach. 

The government's intelligence gathering program -- called PRISM -- is ostensibly trying to achieve the worthy goal of preventing terror attacks. But the Kafka-esque bureaucracy it's creating could turn dangerous in the wrong hands. We've seen it before, during red scares that targeted Jews, blacks, gays, intellectuals, and other liberals; so let's not fall into the abyss of complacency by passing off the NSA's behavior as just something that makes us feel safer.

These kinds of privacy invasions have a less direct relationship to the gay community than raids of gay bars or anti-gay employment discrimination or bans on the freedom to marry. But even if it is true that the government only targeted foreigners abroad and did not discriminate on whose data it was gathering, the sweeping nature of NSA data gathering and this troubling example of the lag between our technology and our privacy protections should especially worry traditionally victimized groups.

Privacy law and the gay community have a long history. The explicit elucidation of a constitutional right to sexual privacy in the 1960s helped give us important precedents like the right to access contraception, the right to choose to terminate a pregnancy, and the right to engage in private, consensual sex with someone of the same sex without being thrown in jail. Yet, over the years, our privacy has been invaded to stop the dissemination of gay-related political or cultural speech through the mail, to force us to disclose our memberships in community organizations that advanced gay rights, and to fire us from our jobs when our personal sexual orientation becomes known. 

Privacy is essential for the full realization of gay rights. Why? It's not because we need to hide who we are or hide our sexual conduct.

Let's discuss AFTER THE JUMP...

To watch the news over the past few days is a lesson in oversimplification. CNN and MSNBC anchors consistently returned to the theme of "individual privacy versus security," referring explicitly to the trade-off 38 times in 3 hours on Friday morning. FOX, of course, politicized the story, mentioning the "IRS" or the "DOJ" or even "Benghazi" immediately after 93% of its NSA mentions in 2 hours. Predictably, the ACLU went overboard, claiming on MSNBC that the government "can literally see our ideas as they form." Rudy Giuliani, a CNN guest, predictably and illogically supported the data mining while criticizing President Obama and absolving President Bush.

It would also be an oversimplification to argue that privacy matters to traditionally disadvantaged minorities, in general, and the gay community, in particular, because of the need to hide. Privacy is only partly about the right to keep secrets, from our sexual behavior to our half-naked photos to our community affiliations. Justice Brandeis said it was about the "right to be let alone." Justice Brennan called it "the most central of human needs." One the most well-known privacy scholars said privacy "ensures personal autonomy even when you have nothing to hide." 

The NSA's information gathering is not problematic because it's political. Nor is it of chilling concern because we face a false choice between freedom and security or because there's something sinister in the phone numbers we've been dialing. It should be a matter of bipartisan outrage because of its near limitless, unregulated reach for an undefined purpose. Government power is not in itself a bad thing; limitless power, however, is always a bad thing.

JedgarFederal and state governments have, over the last century, been authorized to spy on whomever in order to "maintain order" or "prevent crime" or "restore public morality." Such broad statutes hand over unprecedented discretion to implementing authorities, whether they be the NSA, which may very well only be spying on foreigners, the FBI, which under J. Edgar Hoover (pictured), spied on anyone and anything that Hoover didn't really like, or local law enforcement, which sometimes takes it upon itself to regulate public streets and private bedrooms. The goals are not always evil, just the cavalier way in which we let government reach those goals.

Then again, sometimes the goals are laden with personal prejudice. Congress once authorized the Post Office to search through the mail to prevent the spread of "homosexual literature." Joseph McCarthy and the closeted Roy Cohn used Gestapo tactics to force confessions and sent teams of spies to follow alleged gays in the State Department. At one point, 38 states permitted police to search private homes for evidence of "sexual perversion." So, when a conception of privacy does not exist, our rights are at risk.

The articulation of a right to privacy has, therefore, coincided with greater protections for individual liberty for the gay community. Privacy rights were essential to the kind of sexual liberation that culminated in the decriminalization of same-sex sodomy in Lawrence v. Texas. And, privacy means that gay culture can flourish out in the open rather than be marginalized underground.

The erosion of a concept of individual privacy in favor of limitless governmental authority to snoop does violence to those principles of freedom because it challenges the very notion that power has limits. That is not to say that privacy should always win out; privacy, like others rights, has to be balanced against other rights and obligations. But we should not be lulled asleep and shirk our responsibilities as citizens in a republic simply because we don't have anything to hide. We don't, but we have a democracy to maintain. 

NOTE: From time to time, I will return to the concept of privacy and gay rights. Stay tuned for more probing and specific columns on the subject.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. The 2party system is out of control with their eradication of civil liberties, lie-based wars, pollution, and poverty.

    When will LGBTs wake up and move past the Democrats who have moved so far to the right?

    LGBT mega groups and media must stop giving a free-pass to the Democrats and look beyond the 2-party system charade.

    Posted by: Jeff 4 Justice | Jun 7, 2013 2:35:06 PM


  2. It' not just liberals, look at the IRS and the Tea Party. While I shed no tears for them, what it comes down to is access to personal information and how it can be abused.

    Posted by: GB | Jun 7, 2013 2:53:42 PM


  3. Is anyone seriously surprised? Honestly, I just assumed that our intelligence apparatus (and/or someone else's) was already doing this.

    Posted by: The Milkman | Jun 7, 2013 3:15:11 PM


  4. Facebook already 'knows' who is gay whether you are out or not.

    Posted by: Gus | Jun 7, 2013 3:20:10 PM


  5. I agree wholeheartedly Jeff, and though I vote D, I give no pass to the Dems. I just do not know what other choice we have. I am not going to vote 3rd party and completely waste my vote to let even more extreme right people win.

    Posted by: Critifur | Jun 7, 2013 3:20:34 PM


  6. How does that phrase go by some famous American -
    "Those who give up freedom for security deserve neither and will loose both".

    Good luck.

    Oh ! the UK government have been pushing to do something very similar, but it has been vetoed so far by the Deputy Prime Minister.
    Whats the betting they are doing it already, and want to regularise it before they get found out - and have been breaking the law!?

    Posted by: Kathryn | Jun 7, 2013 3:42:26 PM


  7. Is anyone really surprised by this? That the government is watching us? (Not any one person specifically but watching in general)

    Honestly, I don't get why people are OK for these multinational companies to know your information but are outraged that the government knows it too?? Really?

    Do you honestly think Google, Facebook, Apple are that much better?? Psychological profiles from Google searches and Facebook profiles. Real time GPS tracking with your Iphone/Android phone. This isn't new and I'm not saying its right but this is how its been for a while and people have turned a blind eye to it. All this outrage now is just ridiculous, its been there all along you just didn't care. People have been trying to raise the flag about it for years

    Posted by: BrianL | Jun 7, 2013 3:56:49 PM


  8. Brian: Is anyone surprised?? What a lemming response. I'm glad you have no self worth. You might feel more threatened if this were Nazi Germany. Then your life would be on the line, but that's just ridiculous isn't it?

    Posted by: Ed | Jun 7, 2013 4:11:53 PM


  9. And now that we are reaping the fruits of The Patriot Act, everyone is up in arms. Sorry, folks, that barn door was left open a LOOOONG time ago.

    I suggest, instead of being all pissy over it, how about we just learn some self-sensorship before tweeting your most amazing brain turd to the internet.

    IMHO.

    Posted by: Rad | Jun 7, 2013 4:21:01 PM


  10. You're right. Gay turds don't exist. Regardless of being the elephant in the room.

    Posted by: Jay | Jun 7, 2013 6:04:07 PM


  11. You're right. Gay turds don't exist. Regardless of being the elephant in the room.

    Posted by: Jay | Jun 7, 2013 6:04:07 PM


  12. You're right. Gay turds don't exist. Regardless of being the elephant in the room.

    Posted by: Jay | Jun 7, 2013 6:04:07 PM


  13. You're right. Gay turds don't exist. Regardless of being the elephant in the room.

    Posted by: Jay | Jun 7, 2013 6:04:07 PM


  14. The "Oh they've been doing this for a long time" or "Is anyone seriously surprised?" tropes are the talking points being trotted out by right-wing ideologues.

    When one hears them being parrotted, it is best to file them away where they belong: in the file for talking points of right-wing politicians.

    Posted by: from Mexico | Jun 7, 2013 6:46:58 PM


  15. why is this an issue now? The patriot act was passed half a decade ago and it allows for such information gathering. Read the law and save your outrage. Ignorance of the law is not a reason to be upset at anything other than your own stupidity. If you want to be upset check out the "sneak and peak" provision.

    Posted by: terry | Jun 7, 2013 7:43:13 PM


  16. The smug may claim they have nothing to hide today, but when power shifts, they may find themselves with a lot to hide.

    Posted by: Randy | Jun 7, 2013 9:21:18 PM


  17. @Randy: it is actually worse. If you have a simpler cell phone, you will typically type text messages in a mode in which you hit keys and it guesses which of the three letter on the key is the right one. I tried typing "Anna arrived." and what it turned that into was "Bomb arrived." Now imagine you were a classmate of one of those Boston bomber guys and you quickly sent a text saying "Anna arrived," referring to someone you both knew, and didn't notice that the phone replaced "Anna" with "Bomb". What do you think the FBI would think regarding whether you were involved in that crime or not. And if you told them that you never sent a message saying "Bomb arrived," they'd throw in a charge of lying to federal law enforcement official. Even if you could eventually show that you are completely innocent, it would probably set you back $20,000 in legal fees.

    The idea that we "have nothing to hide" is naive - there is a risk regardless of whether we have anything to hide.

    Posted by: Bill | Jun 8, 2013 1:04:12 AM


  18. Good little Obamabot, Ari, good little lemming. You fail to mention head of this government snake: Barack Hussein Obama. This arrogant, lying product of the most corrupt city in the US continues to demonstrate what an inept fraud he is.

    "Stay tuned for more probing and specific columns on the subject."

    Please. As if your hollow partisan ramblings carry any weight, due to the fact that they're written securely from inside Mr Oblahma's RECTUM. How about some probing specifics on your B Ho pal?

    Fraud.


    Posted by: Well... | Jun 8, 2013 2:00:16 AM


  19. "few -- outside those of us who study digital privacy -- realized the scope of the NSA's reach"

    Ummmm, NO. There were and are lots of us who understood completely what was happening way back when with Patriot I and then II.

    Sorry if you are now just waking up, but some of us have known all along. So please don't pretend.

    Posted by: Bucky | Jun 8, 2013 6:15:49 AM


  20. Towelroad was sent the whistle blower story today, shortly after it broke. No reporting noted... The whistle blower mentioned his "partner" which means he could be gay. This is a "look at the sexy straight guy" news operation. And it is Sunday...No excuse.

    Posted by: GB | Jun 9, 2013 9:02:16 PM


  21. Snowdon is straight. He's risking a lot. Of course we know we are monitored, but not to this extent. Snowdon is at the least worthy of the "Lesbian Heckler" award for bravery.

    Posted by: GB | Jun 10, 2013 12:17:28 AM


  22. How many of you would put your life on the line to expose anything, right or wrong this guy has guts, if you think the IRS is tough these guys make them look like puppy dogs. I personally am afraid the the gov't and think they need to be rained in

    Posted by: bructer | Jun 10, 2013 12:42:49 PM


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