The NSA, Data Privacy, and Gay Rights


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.