SOLOVE POST-AUTHOR PAGES (SUPER FINAL).DOC 2/7/2008 3:16:38 PM

information about a person. Posner asserts that the law should not protect people in concealing discreditable information. “The economist,” he argues, “sees a parallel to the efforts of sellers to conceal defects in their products.”36

Of course, one might object, there is nondiscreditable information about people that they nevertheless want to conceal because they find it embarrassing or just do not want others to know about. In a less extreme form, the nothing to hide argument does not refer to all personal information, but only to that subset of personal information that is likely to be involved in government surveillance. When people respond to NSA surveillance and data mining that they have nothing to hide, the more sophisticated way of understanding their argument should be as applying to the particular pieces of information that are gathered in the NSA programs. Information about what phone numbers people dial and even what they say in many conversations is often not likely to be embarrassing or discreditable to a law-abiding citizen. Retorts to the nothing to hide argument about exposing people’s naked bodies to the world or revealing their deepest secrets to their friends are only relevant if there is a likelihood that such programs will actually result in these kinds of disclosures. This type of information is not likely to be captured in the government surveillance. Even if it were, many people might rationally assume that the information will be exposed only to a few law enforcement officials, and perhaps not even seen by human eyes. Computers might store the data and analyze it for patterns, but no person might have any contact with the data. As Posner argues:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.37

There is one final component of the most compelling versions of the nothing to hide argument—a comparison of the relative value of the privacy interest being threatened with the government interest in promoting security. As one commenter to my blog post astutely notes: “You can’t talk about how people feel about the potential loss of privacy in any meaningful way without recognizing that most of the people who don’t mind the NSA programs see it as a potential exchange of a small

36. Id.

37. Richard A. Posner, Our Domestic Intelligence Crisis, WASH. POST, Dec. 21,

2005, at A31.