We should protect privacy because it lets people get away with crime and other wrongdoings

Privacy advocates are wusses because they won’t talk about the best reason to oppose creeping surveillance: allowing people to get away with doing the wrong thing. Generally, when we’re listing the advantages of invading privacy, someone will say argue that it’s good because we’ll catch more wrongdoers. Extending work by Cressida Gauroger, I want to turn this around. I want to argue that the possibility of catching more wrongdoers is a reason not to engage in additional surveillance, at least in many cases.

I have seen so many people talking about privacy as if they had a phobia of being known, divorced from any other consequences. As if they felt harmed by corporate or government records of their existence, sans this even conceivably leading to any bad outcomes for them. As if a record of your favorite types of hats being in a corporate office somewhere, or the government knowing how you walk to work and being incapable of using the information against you is still harmful.

It's tenuous reasoning compared to the best case for wanting privacy- getting away with doing the wrong thing.

In "Privacy and the Importance of ‘Getting Away With It’" Cressida Gaukroger argues that we should support privacy because it allows people to do immoral things. She gives a list of the benefits of privacy:

1. (1) Privacy protects us from the wrongdoings of others. [e.g., identity theft, stalkers who can find out our details, and- vis a vis a different kind of wrongdoing- enforcement of unjust laws by the government and unjust social norms by the public, etc.]

2. (2) Privacy protects us from blameless shame.

3. (3) Privacy protects us from having our bad actions (and thoughts) discovered.

[To this list I’d add a fourth reason- it’s somewhat intimidating and scary to know that an impersonal, ruthless organization like the government is hunting through records of your behavior to seek any wrongdoing paradoxically even if you haven’t done anything wrong]

Gaukroger argues that (3) in particular has been overlooked. It has been taken for granted that while privacy in general is good, of course, we don’t want people to get away with bad acts. Gaukroger ingeniously outlines several reasons why people might have a legitimate interest in getting away with doing the wrong thing. But she, at least for the most part, stops short of advocating that people should be able to get away with crimes:

There is no doubt that some people have morally indefensible interests in keeping their bad actions hidden – anyone who has committed a crime has an interest in not being caught.

I wanted to take it a bit further and add a consequentialist basis to the argument that sometimes it’s good if people get away with doing the wrong thing. Moreover, I want to take the argument in a somewhat radical direction- we should support privacy in part because it lets people get away with crimes. But my case also goes beyond crime to other forms of serious misdeeds (which Gaukroger also considers). Life is very long and filled with cumulative chances for moral error, a fact that has become ever more obvious in the social media age. Is more punishment really going to help?

My argument is simple. It's not clear that, at the margin, the utility of additional deterrence outweighs the personal disutility and social cost of punishment. Will more incarcerations for crimes like shoplifting really resolve anything? Will giving another person a criminal record for a bar fight really make us safer? If we have another batch of public disgracing will that finally make our society more decent? At the very least, this is a burden of proof the advocate for additional surveillance must bear and I am not yet convinced they have shouldered it.

More precisely:

1. Even if punishment in general strongly deters, it’s not clear that a marginal unit of punishment has a substantial additional deterrent effect and there is at least some prima facie reason to think that an additional unit of punishment may be overall utility decreasing (especially in the case of incarceration).

2. If an additional unit of punishment reduces overall welfare, then we should try to avoid circumstances that will require us to impose an additional unit of punishment. This is especially true if they are costly and otherwise controversial- as surveillance is.

3. Therefore we shouldn’t engage in more privacy-breaching surveillance just for the sake of catching additional wrongdoers. Further not catching additional wrongdoers gives us an affirmative reason not to engage in additional surveillance, since, once we catch them we are for various reasons obligated to punish them.

While we factor in the possibility of punishment when considering criminal or scandalous actions, it’s not clear that we are especially sensitive to a 50 versus 51% chance of being caught, or even a 30 versus 70% chance of being caught. It is true that the criminological literature indicates that people are more responsive to the chances of being punished than the severity of punishment. However, as we will see, it is not clear that they are particularly responsive to the chances overall- even if this has a greater effect than severity. Thus the average effect of punishment may be strongly overall positive, while the additional punishment enabled by privacy violations may be overall negative.

See for example:

An important recent review by Donohue (2009, table 9.1) identifies six published articles that examine the relationship between aggregate crime rates and imprisonment rates. Each of these studies finds a statistically significant negative association between imprisonment rates and crime rates, and each has been interpreted as implying a crime prevention effect of imprisonment. However, the magnitude of estimates of the parameter varied widely—from nil at current levels of incarceration (Liedka, Piehl, and Useem 2006),3 to an elasticity of – 0.4 (Spelman 2000). It is important to note that these studies are actually measuring a combination of deterrent and incapacitation effects. Thus, it is impossible to decipher the degree to which crime prevention is occurring because of a behavioral response by the population at large or because of the physical isolation of crime- prone people.

In other words, even the highest estimate was only an elasticity of -0.4. That means if you increase the incarceration rate by 1%, you decrease the crime rate by -0.4%. Given the huge costs of imprisonment on the imprisoned and on society generally, is additional punishment at the margin really worth it?

And an elasticity of -0.4 is at the higher end of estimates. Elsewhere we find far more modest effects:

most incapacitation studies conclude that large increases in the prison population only produce fairly modest reductions in crime. Research in the United States, for example, suggests that in most US states to obtain a 10 percent reduction in crime, the prison population would have to be more than doubled (Chan 1995, p.6).

Roodman in The Impacts of Incarceration on Crime writes:

I estimate that, at typical policy margins in the United States today, decarceration has zero net impact on crime outside of prison. That estimate is uncertain, but at least as much evidence suggests that decarceration reduces crime as increases it. The crux of the matter is that tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release.

Make special note. As Roodman alludes (“Outside prison walls”), studies on the effects of incarceration on crime usually neglect crimes committed in prison.

Let’s take a fairly generous set of assumptions and take it that doubling incarceration will decrease crime by 20%. The Institute for Public Affairs (an organization with whom I agree on very little) estimates the cost of incarcerating a prisoner is $147,900 per year. This does not factor in the costs to the prisoner (it would be worth at least 200,000 to me not to be locked up for a year!) and it does not factor in the costs of crime in prisons, which due to the cramped conditions and lack of escape, can be horrific. Given the enormous costs of incarceration is it really in our collective interests to catch more wrongdoers- at least of the sort who we must imprison? I don’t think so. So why on earth would we want more CCTV cameras just so we catch an extra incarcerable criminal?

Here I should deal with the question of criminals who aren’t incarcerated. It is true that the social costs are lesser, but they are still very substantial. Moreover, presumably, the deterrent effect is reduced as well, and the incapacitation effect is reduced greatly. There is less evidence on the effects of non-carceral punishment on crime, but again, I think the burden of proof is on those who want to argue that there is a positive social benefit from catching these people and prosecuting them.

Thus, not clear to me that punishing an extra crime at the margin is socially beneficial. This is perhaps especially true when we consider the kinds of crimes that privacy violations are likely to uncover. Such breaches are often relatively minimal (on the assumption that larger breaches are more likely to be uncovered without breaching privacy), etc.

Does this apply to non-criminal but shameful wrongdoing, and privacy breaches that let us detect it, as well? It’s harder to get statistics on, for example, the degree to which shaming people for extra-marital affairs reduces these acts, versus the costs inflicted both on the wrongdoer and the community (*). The costs are lower, the deterrence effect is also likely lower. Still, I suspect that at the margin the effect of an additional shaming is probably negative. I might be wrong, but before we brach privacy for the sake of hunting social norm violations, we should probably check.

You might be wondering what the cost to the community I refer to is. I think long, moralistic denunciations of so and so are terrible for communities. Also, a focus on punishment often takes the emphasis away from structural problems and embedded elites, and directs it instead to individualistic punishment.

It seems to me then that even the strongest reason in favor of reduced privacy protections- catching wrongdoers- might in truth be a reason against it.