In the debate about NSA surveillance, any surveillance, in the debate about any action government and especially law enforcement may take, the oft-repeated party line goes like this: “I’m not concerned about it because I have nothing to hide.”
This argument fails on a number of levels. The most basic level is that it assumes we each possess perfect information. Perfect information is a concept in two fields that I follow closely: Game Theory, and Economics. Game Theorists study rational strategic decision-making by examining mathematical models of games and how players interact. In game theory a player is said to have perfect information when they possess “the same information to determine all of the possible games (all combinations of legal moves) as would be available at the end of the game.” Chess can be a game of perfect information since all the pieces are on the board throughout the game and all the rules are known ahead of time. Even then, though, most humans don’t possess the cognitive processing paths allowing them to treat chess as a game of perfect information. We’re simply not primed or trained to see all those possible moves from all sides.
A better game to think of in the context of perfect information is tic-tac-toe. Nine squares, two pieces (X’s and O’s), known rules, and much easier for us to process. Processing information (legal moves) in games is best described through using a decision tree (graphical tool where every option spawns a new branch of the tree) or a decision matrix (rows and columns of values that quantize relationships, such as those between choices in a game). The decision tree for tic-tac-toe is a lot more simple than chess since the latter involves sixteen game pieces and sixty-four squares (this is the main reason why it’s a lot easier to teach a computer how to play tic-tac-toe than chess).
In either game you’ve got perfect information if you can fill out the entire decision tree from start to finish. All the possible moves by all players.
Let’s consider a new game to model. It’s a lot more complex. It’s called Being A Citizen.
Before saying “I have nothing to hide” I’d have to say that I possessed perfect information in the context of making that decision. That’s perfect information not only about every past move leading up to this decision but every future move after it. It assumes that all “pieces” are above the board and that I know all the rules to this game. And that’s demonstrably incorrect.
Let’s take the assets and programs of the National Security Agency as some of our game pieces. For them to be above the board we’d need the government to be both honest and accountable about them. Instead, NSA Director Keith Alexander has repeatedly lied to the public about every aspect possible. So has Director of National Intelligence James Clapper. They’ve lied to us as individual players and Congress as what we might call a Superplayer; about buildings, assets, programs, collected materials. Everything we’d need to get a good idea, no less a complete idea, about the pieces on the playing board.
Having established that we don’t have clear information on the game pieces, let’s turn to the playing board. In order to play chess you’ve got to abide by certain rules, but there’s a trade-off: the rules are all made plain beforehand. You’re not going to get midway through the game and then be challenged about the legality of your opening move, either due to a rule that was hidden from you or due to a new interpretation of an old rule. But in the game model we’re dealing with here, government in general and intelligence agencies in particular have established exactly this possibility. As one example: the very court opinions and administration interpretations of the Patriot Act allowing the government to order telecommunications companies to collect and provide massive amounts of data on US citizens are secret.
The Foreign Intelligence Services Court approved nearly nineteen thousand search/eavesdropping warrants from 1979 until 2004, while rejecting just four. And their proceedings are entirely sealed and secret from us. Unless, of course, leaking FISA information benefits the Government player. And then it suddenly appears. This, by the by, is what’s called information asymmetry. It takes place in asymmetric games, games in which strategies are not the same for each player but dictated by the power imbalance between players. Remember this concept, it’s important.
At this point we need to remember the structure of the NSA’s information-gathering programs. They’re largely not set up for distributed, real-time analysis of communications. They’re erected for investigative purposes, connecting the dots. Going back into records of previous events as far back as the records go. Which means that once you seemingly violate a rule that you’re not aware of, or once the administration alters its interpretation of the rule to make you a violator, they can now go back through every communication within their grasp and piece it together in any way they desire in order to make you appear guilty as sin.
Without you knowing, at any step of the process.
“But Ian,” you’re about to argue, “of course D-NSA Alexander and DNI Clapper lied to the public. FISA’s secret. They had to. It’s classified. Surely you didn’t expect them to expose their own secret programs?”. No, I didn’t. I expect secrecy and confidential programs in government; I’d go so far as saying that secrecy is absolutely essential in some areas of government. Arguments about ending secrecy are naive from the outset. Abolishing secrecy isn’t the point.
The point is this: playing a game (read: making decisions) as if I have perfect information when I don’t manifests an inherently flawed strategy. This isn’t about what I expect of Alexander or Clapper, but what they expect from me in adopting “It’s okay because I have nothing to hide.” It presupposes that my interests and those of the government always lie in the same direction. That I know each strategy the government may take, every branch of their decision tree, that the government’s being straight with me, and that it has and will always have my individual interests at heart. Out of these three conditions, the first is ludicrous, the second is (again) immediately demonstrably false, and the third is false in nearly every lesson we’ve seen in history.
The interests of individual and government always have places of divergence, generally because government is full of other individuals all making strategic decisions in the interests of themselves and their ideologies. Our ability to compromise in places is what allows us to form governments. And compromise, while not inherently harmful, often involves finding common ground in the spaces between our original interests. Even moreso when it’s done on a macro, societal scale with the potential to criminalize peaceful protests (like many Occupy sites), pass legislation that potentially criminalizes miscarriage, restricts a person’s right over being secure in their own biological functions, refuses equitable rights to people of different sexual orientation or race or religion or levels extra scrutiny on the tax status of organizations of a particular political persuasion.
“I have nothing to hide” means you’re playing an asymmetric information game like other players would want you to: poorly. Out of some mythical principle you’ve chosen to tie both hands behind your back in order to play a game that the intelligence agencies won’t even tell you the rules to. This is a game you will lose every time. Because not only do other players have more information than you, they also have just about all the power in the situation. And remember what I said above: strategy in asymmetric games is dictated by power imbalance between the players. Relinquishing both your power and your information is not a strategy, it’s a suicide. A strategy is, say, aligning with other players cooperatively to combine your power, such as in protest. Or securing your own information, as in encrypting your data and anonymizing your internet usage.
We know what happens to protesters: they’re investigated, infiltrated, marginalized and criminalized. They face felony charges and thirteen years in prison for marking the sidewalk with water-soluble chalk (this last, thankfully, acquitted by a jury this week). And now leaked NSA guidelines reveal what happens to the other side of your strategy as well: using cryptographic and anonymizing technologies increase chances that the NSA will not only scrutinize you further, but also keep your data in contravention of law.
In other words, when you pursue a rational strategy that harms no one, it’s used against you.
Just how do you think the NSA is approaching this game? To move this from game theory back into common terms: Just how do you think the NSA is approaching this decision-making process?
With your interests in mind?
So yes, I’m going to encrypt my data. I’m going to use Tor when I browse, I’m even going to order an Onion Pi and switch all my traffic over to Tor. I may be a very solid part of the surveillance state, being a police dispatcher for nearly a decade now. But I have something to hide: my communications, my traffic, my likes and dislikes, my entire online identity in some senses. I have something to hide not because I’m a bad person (I’m not) or because we live in a totalitarian state (we don’t) but because I don’t have perfect information and this game isn’t being played fairly.