Can You Teach an Old Judge New Tricks?

Judge Richard Posner is indisputably one of the most renowned jurists of the modern era, and deservedly so. Even he gets things wrong , though, and when he does, well, I’ll let Cory Doctorow explain further:

Speaking at a Georgetown law cybercrime conference, 7th circuit judge Richard Posner made a series of conscience-shocking, technologically illiterate statements about privacy that baffle and infuriate, starting with: “if the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine.”

Posner went on to say that 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.”

On the idea of default full-disk encryption, he added “I’m shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search.”

It’s amazing that Posner — who sometimes can evince nuanced views — can’t figure out that privacy is more than hiding your closet-skeletons. Privacy isn’t just vital for developing unfinished ideas with people you trust, allowing your work to be reviewed by trusted circles before you commit it to posterity — it’s also especially vital for the most vulnerable people among us, people whose health, race, sexual orientation, and other traits make them subject to discrimination and prejudice.

People like Posner, who believe that they have nothing to hide (he’s almost certainly wrong here, but let’s assume he’s right), have won a lottery through no virtue of their own. But he — and you, and I — have people we love who didn’t win the lotto, through no fault of their own. When they speak out for privacy, they magnify their vulnerability. It’s the duty of lotto-winners to speak up for everyone else.

[Emphasis added.]

It’s not just the skewed concept of privacy presented by Judge Posner, though. He also doesn’t understand that any digital security system that allows the government in can’t keep crooks out:

[A] mobile device that the government can search is also a mobile device that criminals — identity thieves, voyeurs, corporate spies — and invasive corporations, and foreign spy-agencies can all search. Your bank’s safe has a door that can withstand a SWAT-team’s battering ram, which means that it can also withstand the most determined burglar. Making a law that requires weak-spots in the safe-door to let the cops get in will make the safe unsuited for keeping out robbers. Posner should understand this. If he doesn’t, his clerks should be educating him.

It is pretty much a given that the law cannot keep up with the pace at which technology advances. That is not necessarily always a bad thing, but we still need better understanding of technology on the bench.


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