Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated

Judge Richard Posner is probably one of the most well-known and quoted appellate judges around. He’s an excellent writer as well, and I enjoy many of his books and his rulings, though when he gets things wrong, he seems to get them so very, very wrong. When he’s on, he’s great. For example, his recent attack on copyright trolling and defending the public domain was great. He’s also been good on patents. But… on surveillance he seems all too eager to side with the government.

Given that, there was little surprise that at a recent conference on cybercrime, Posner unloaded with some of his more ridiculous beliefs, essentially saying that the NSA should be able to spy on whoever they want because “national security” is more important than privacy (or the 4th Amendment, apparently):

“I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

“Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “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.”

Ah, the old “if you’ve done nothing wrong, you’ve got nothing to hide” trope. If that’s true, then it does make you wonder what Posner himself is hiding. As Dave Maass pointed out, Judge Posner has redacted the name of his trust on his financial disclosure form.

Posner doubled down on this by claiming that if someone looked at his mobile phone, they’d just find pictures of his cat and nothing too important:

“If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text,” he said. “What’s the big deal?

“Other people must have really exciting stuff,” Posner added. “Do they narrate their adulteries, or something like that?”

No, they may not narrate their adulteries, but they may actually give away lots of information that, say, could be used to suggest adultery, which might then be used to blackmail someone. Or to push them to commit suicide.

Or to just embarrass them. To take an example that Judge Posner might actually relate to, his fellow appellate court judge (and about equal in “famous judge” stature) Alex Kozinski. Back in 2007, a disgruntled lawyer figured out a way to reach a personal web server that Judge Kozinski used to store random “funny things” he found online, including some “racy” images. The press picked up on the story and went crazy about this judge who apparently was keeping “obscene” images, including one that the press repeatedly claimed showed “bestiality.” This was all over the press, including the LA Times. If you want to see the “bestiality” video, you can view it here on YouTube.

The point being, Kozinski wasn’t really doing anything “wrong” (other than not properly securing his own personal web server). And yet someone (a lawyer unhappy with Kozinski) was able to take what he found on that web server, which was basically some jokey videos and pictures, and turn it into a big (and misleading) deal in the mainstream media, leading to a panel of federal judges having to do a full investigation. Yes, eventually they cleared Kozinski, but the point remains: if someone wants to make your life hell, and can get access to stuff you wanted kept “private,” they can often do so. Even if you’re a famous, big shot, appellate court judge.

Even worse, as Glenn Greenwald reminds us, Judge Posner is a complete and total hypocrite on this issue — in a 2011 case concerning whether or not citizens have a First Amendment right to film the police, Posner was suddenly worried about the police’s right to privacy:

JUDGE POSNER: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

JUDGE POSNER: Yes, it is a bad thing. There is such a thing as privacy.

Apparently it only applies to those in power, though. If there’s any better demonstration of the privilege of the rich and powerful, it’s difficult to think of an example that beats Judge Posner poo-pooing the idea that the public should be concerned about the NSA and its surveillance powers.

Judge Posner Says NSA Should Be Able To Get Everything & That Privacy Is Overrated

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