Privacy Community Wracked by Controversy—Are DoJ Officials Mustache-Twisting Enemies of Privacy?

by on January 12, 2011 · 6 comments

I’ve been bemused by a minor controversy about remarks Ryan Calo of Stanford University made to a New York Times reporter for this story on Internet privacy and government access.

“When your job is to protect us by fighting and prosecuting crime, you want every tool available,” said Ryan Calo, director of the consumer privacy project at the Center for Internet & Society at Stanford Law School. “No one thinks D.O.J. and other investigative agencies are sitting there twisting their mustache trying to violate civil liberties. They’re trying to do their job.”

That apparently didn’t sit well in some corners of the privacy community, and Calo felt obligated to explain the comment as though he had implied that DoJ efforts to undercut privacy should not be resisted. He hadn’t.

But evidently some people do think DoJ officials, or some relevant segment of them, are mustache-twisting privacy-haters. There are a few genuine oddballs committed to undercutting privacy, but it’s not worth casting aspersions on the entire security bureaucracy because of these few.

I believe the motivations of the vast majority of DoJ officials are good. They feel a real sense of honor from doing their self-chosen task of protecting the country from various threats. On average, they’ll likely weigh security and safety more heavily than the average privacy advocate or civil libertarian. Because they don’t think about privacy as much, they may not understand as well what privacy is and how to protect it consistent with pursuing justice. These are all good faith reasons why DoJ officials may undervalue and, in their work, undercut privacy. It is not necessary to believe that a dastardly enemy sits on Constitution Avenue mocking the document that street is named after.

The theory of the evil DoJ official says more about the theoretician than the DoJ. Experience in Washington has shown me that incompetence is almost always the better explanation than malice. (That’s not very nice, talking about “incompetence,” but there are some DoJ officials who lack competence in the privacy area.) Some people apparently need a dramatic story line to motivate themselves.

I’m sure it feels good to cast oneself as a white hat facing down a team of secretive, nefarious, government-sponsored black hats. But this mind-set gives away strategic leverage in the fight for privacy. The story is no longer how to protect privacy; it’s who is bad and who is good. Everyone (everyone thoughtful about messaging and persuasion, anyway) recognizes that Wikileaks veered off course by letting Wikileaks itself and Julian Assange become the story. We’re not having the discussion we should have about U.S. government behavior because of Assange’s self-regard.

I agree with my privacy brethren on the substance of the issues, but those who have similar self-regard, who insist on good-vs.-evil framing in order to cast themselves as heroic—they are closing the ears of DoJ officials they might reach and giving away opportunities to actually improve protections for privacy in the country.

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  • Bg354

    Jim, this is absolutely preposterous and I’m shocked that it’s coming from CATO. The “security” bureaucracy you defend is indeed a huge threat to our civil liberties, and there’s any number of examples I could point you too: The Washington Post series on the information industrial complex in Washington from late last year; TSA’s ham-fisted approach to security; Janet Napolitano’s ridiculous “See something, say something” campaign in Wal Marts across the country. This is all security theater that does absolutely nothing to make us feel safer.

    And as for your defense of DOJ, I’m in awe that you would defend these guys. Their motivations are more often than not selfish, and they aren’t public servants… They are prosecutors out to make a name for themselves regardless of the cost to our civil liberties. The examples are legion — the attack against Republican operatives in Maine for phone jamming, the unprecedented legal battle against Senator Stevens. And lest you think it’s just Republicans, these guys go after Democrats just as hard. The entire justice process is a charade — it’s politicized and it’s about boosting the careers of particularly narcissistic prosecutors who care nothing for our constitution or our civil liberties.

    This is terribly disappointing coming from a Libertarian outfit. It sounds like you’ve gone native Jim. The “security” that our government promises is a fraud. It’s security theater that makes us feel safer while the state guts our rights to unreasonable search and seizure in a million and one different ways. Shame on you.

  • Jim Harper

    Nothing you’ve said here counters the things I said in my post. In fact, you exemplify the approach I critique. It is not a qualification of advocating for liberty that you have to impute evil motivations to your opponents. Outrage does not persuade others, as you have not persuaded me, and when you fail to persuade in Washington you fail to change policy.

  • Bg354

    Jim, let me spoon feed it to you then… You remember Nick Marsh? DOJ prosecutor who prosecuted Ted Stevens. Committed suicide while under investigation over whether he and the other career prosecutors at DOJ acted improperly in the Stevens investigation. DOJ was about to find that Marsh had grossly violated his constitutional duties by knowingly withholding exculpatory evidence in order to grease the skids for a conviction. That’s not incompetence, that’s immoral.

    It’s the kind of corruption (big and small) that happens a thousand times a day throughout our vast federal bureaucracy. It’s the kind of corruption that allowed folks like J. Edgar Hoover to oversee the FBI.

    But the folks at Mises.org have a far better response to your piece than I’d ever be able to write: http://blog.mises.org/15304/cato-official-stop-demonizing-doj-prosecutors/

  • Bg354

    Jim, let me spoon feed it to you then… You remember Nick Marsh? DOJ prosecutor who prosecuted Ted Stevens. Committed suicide while under investigation over whether he and the other career prosecutors at DOJ acted improperly in the Stevens investigation. DOJ was about to find that Marsh had grossly violated his constitutional duties by knowingly withholding exculpatory evidence in order to grease the skids for a conviction. That’s not incompetence, that’s immoral.

    It’s the kind of corruption (big and small) that happens a thousand times a day throughout our vast federal bureaucracy. It’s the kind of corruption that allowed folks like J. Edgar Hoover to oversee the FBI.

    But the folks at Mises.org have a far better response to your piece than I’d ever be able to write: http://blog.mises.org/15304/cato-official-stop-demonizing-doj-prosecutors/

  • Jim Harper

    Hah! That is righteous stuff! (Self-righteous, that is.) I see that some of the commenters get the point I was making.

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