(updated below)

Richard Posner has been a federal appellate judge for 34 years, having been nominated by President Reagan in 1981. At a conference last week in Washington, Posner said the NSA should have the unlimited ability to collect whatever communications and other information it wants: “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.” The NSA should have “carte blanche” to collect what it wants because “privacy interests should really have very little weight when you’re talking about national security.”

His rationale? “I think privacy is actually overvalued,” the distinguished jurist pronounced. Privacy, he explained, is something people crave in order to prevent others from learning about the shameful and filthy things they do:

Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. 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. 

Unlike you and your need to hide your bad and dirty acts, Judge Posner has no need for privacy – or so he claims: “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?” He added: “Other people must have really exciting stuff. Do they narrate their adulteries, or something like that?”

I would like to propose a campaign inspired by Judge Posner’s claims (just by the way, one of his duties as a federal judge is to uphold the Fourth Amendment). In doing so, I’ll make the following observations:

First, note the bargain Judge Posner offers, the one that is implicitly at the heart of all surveillance advocacy: as long as you make yourself extremely boring and unthreatening – don’t exercise your political liberties, but instead, just take pictures of your cat, arrange Little League games, and exchange recipes – then you have nothing to worry about from surveillance. In other words, as long as you remain what Judge Posner is – an obedient servant of political and corporate power – then you have nothing to worry about from surveillance.

The converse, of course, is equally true: if you do anything unorthodox or challenging to those in power – if, for instance, you become a civil rights leader or an antiwar activist – then you are justifiably provoking surveillance aimed at you. That is the bargain at the heart of the anti-privacy case, which is why a surveillance state, by design, breeds conformity and passivity – which in turn is why all power centers crave it. Every time surveillance is discussed, someone says something to the effect of: “I’m not worried about being surveilled because I’ve chosen to do nothing that’d be interesting to the government or anyone else.” That self-imprisoning mindset, by itself, is as harmful as any abuse of surveillance power (in September, I gave a 15-minute TED talk specifically designed to address and refute the inane “nothing to hide” anti-privacy rationale Judge Posner offers here).

Second, Judge Posner’s is the voice of unadulterated wealth, power and privilege talking. The distinguished judge – like all those of similar position and class – has all sorts of ways that his personal privacy is safeguarded: government-provided security, electronic gates that protect his home and office, a staff of people who work for him. It’s almost never the Judge Richard Posners of the world who are subjected to abusive surveillance, but rather actual dissidents, activists and members of marginalized and minority groups. That’s true even in the most tyrannical states: in Mubarak’s Egypt, it was the pro-democracy protesters in Tahrir Square targeted with violence, torture, and other forms of repression, not the loyal and corrupt judges who served Mubarak’s agenda. Servants of power are usually immune, or at least unmolested. So it’s always very easy for the Richard Posners of the world to dismiss concerns over privacy violations because they are typically not the ones targeted.

To see how power-based rather than principled Posner’s views are, consider what he said and did in a 2011 case – brought by the ACLU – where he mocked the idea that citizens have a First Amendment right to film the police. During Oral Argument, he immediately interrupted the ACLU lawyer arguing that citizens have this right, and the following exchange occurred:

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.

Like so many federal judges, Judge Posner recognizes rights only when they belong to agents of the state or the economic elite. When it’s ordinary citizens at issue, he snidely rejects any such protections. Of course, this is exactly backwards: those exercising public power (police officers) have a lower entitlement to privacy than private individuals. But power-servants like Judge Posner view only actors of the state and those who serve it (such as himself) as entitled to these prerogatives. That’s become the corrupt essence of the U.S. justice system, and it’s perfectly expressed by Judge Posner’s radically divergent views based on whose privacy is at stake.

Third, if Judge Posner really believes what he’s saying about privacy, and if it’s really true that he personally has nothing to hide – he just has some cat videos and some pictures of his grandkids – then he should prove that with his actions. Every day, he should publicly post online all of the emails he sends and receives, along with transcripts of his telephone and in-person conversations. Or just put a recording device in his office and on his person, and upload the full audio every day. He should also put video cameras in all the rooms in his home and office, and stream it live on the internet 24 hours a day. If there’s a specific reason for excluding a particular conversation – say, something relating to attorney/client privilege – he can post a log identifying the metadata of the withheld communications. If he agrees to this framework, I’d work hard on a campaign to raise the funds to do this, and have no doubt the money could be raised very quickly.

What possible objections could he have to any of this? After all, the Hon. Richard Posner has nothing to hide. He’s a good person. He does nothing shameful, corrupt, adulterous, or otherwise embarrassing – nothing constituting “the sorts of bad activities that would cause other people not to want to deal with [him].” Perish the thought. So why isn’t he doing this, or why wouldn’t he? A campaign to encourage him to agree to this system of transparency – to show he has the courage of his convictions – would, I think, be constructive. Anyone wishing to do so can submit that encouragement to him, and to argue for its virtue, by email or telephone, here or here

Photo: John Gress/Reuters/Landov

UPDATE: Using his reasoning, Judge Posner, with regard to a trust account of which he’s the trustee, is “concealing the sorts of bad activities that would cause other people not to want to deal with [him].” Note how, in his 2010 Financial Disclosure Report, he tries to hide this information and keep it private (via Dave Maass):

What bad, shameful acts with regard to this trust account are being concealed? Unlike private individuals (whose privacy he disparages), Judge Posner holds a public trust, exercises vast public power. What justification is there for concealing this if there is not serious wrongdoing here?