Most of the books I review come to me via a publicist who asks whether I would be interested in reading and reviewing them.  Most of the time, I’m not.  But when Dan Solove, of Concurring Opinions, announced this his new book was out, Nothing to Hide, The False Tradeoff between Privacy and Security, I reached out for a review copy.

Dan’s last book, The Future of Reputation, was foundational, schooling its readers on the dangers of putting every burp and smirk online, or worse still, having someone else do so.  It’s likely the only book by a lawprof I will ever make my children read.  With that high bar in mind, I dove into Nothing to Hide, the subject being almost as dear to me as it is to Dan. 

The book is constructed in three parts, the first addressing the “myths” of the argument that invariably permeate discussion.  The most famous of these, that if a person has “nothing to hide,” then he won’t mind the police rummaging through his things, inspecting his internet usage or credit card receipts.  Dan takes apart the myths in a detailed, scholarly way, bit by bit. 

While offering some snappy comebacks to the cop on the street’s question (culled from the comment section of CoOp), none of which is likely to impress the opposite sex at parties, he ultimately hits a deeper concept, that privacy isn’t limited to concealing some wrongdoing from the government, and our understanding of privacy is askew by this limitation. 

Within this discussion, Dan use a few examples of how information in the wrong hands can produce erroneous and troubling conclusions.  Whether the examples apply to any individual, even the ones who spout “my life is an open book,” the Kafkaesque examples of The Trial kicks in:

The harms are bureaucratic ones — indifference, error, abuse, frustration, and lack of transparency and accountability.

For anyone who’s enjoyed the government’s facile conclusion, built on a handful of misinterpreted cues, that you’re up to no good (or engaging in a criminal conspiracy, as the case may be), you can appreciate Dan’s point.  If not, your day will come.

This first section of Nothing to Hide, dealing with the sexier issues surrounding the arguments for the government’s usurpation of privacy rights, covers the points well, both on a surface level and below.  While it’s a bit on the wordy side, no doubt in the interest of thoroughness and precision, and lack the pizzazz of cool stories of internet intrigue that made Reputation so fascinating, it makes excellent points.  If the points were delivered with great punch, perhaps more provocative language (of the sort most academics eschew), it would be more effective for the ordinary person, who might cruise past the punchline without realizing it.

The second section provides something of a history of the Fourth Amendment and its application.  From a lawyers’ perspective, it’s well-trodden turf, although most criminal defense lawyers will take issue with Dan’s understanding.  While I’m not nearly as cynical about the courts’ handling of search and seizure as some, I’m nearly off the charts from Dan, who reposes great trust in the good will and intentions of judges who manufactured exception after exception. 

To a large extent, the purpose of this section is to explain the failure of Katz v. United States, which created the reasonable expectation of privacy test, to serve as a viable basis to protect our privacy rights.  While Dan clearly contends that it hasn’t worked out well, and has undermined the right to privacy, he blames the test rather than the judges who worked overtime circumventing the test.  While he may be right that Katz has overstayed its welcome, or should never have been invited at all, it’s difficult to place all the blame on Katz while ignoring the role of the courts in assuring that there would always be an exception to rule.

While the first two sections make for interesting reads, it quickly becomes clear that the third section, where Dan sets out the way he sees privacy rights should be protected going forward, is the point of the book.  From the title, I didn’t see this coming.  When it did, it struck me that I’d been tricked into reading  Dan’s theory of  Fourth Amendment Pragmatism that had been debated before, even here.

Settling in, this was an opportunity to get a better grasp of Dan’s argument, which up to then had eluded me.  To sum it up in a sentence, Dan contends that we would do well to throw away Katz’s “reasonable expectation of privacy” test in favor of a “problems of reasonable significance” test.  I read carefully.  I still don’t get it.

On the one hand, it strikes me that Dan sees this as an opportunity revisit the whole of privacy protection without the baggage developed around Katz over the decades, and allow courts to develop robust protection of our privacy rights.  On the other hand, why Dan believes courts will be any more likely to protect rather than circumvent rights under his test remains unclear.  This likely stems from Dan’s faith in judges’ desire to protect and defend the Constitution, in contrast to my belief, for example, that judges want to make sure the bad guy goes to prison.

This last section of the book might have offered a very provocative and interesting view of what the future might look like if we were able to move beyond failed Fourth Amendment jurisprudence, riddled with exceptions and misdirected in focus.  But it’s unlikely that any non-lawyer reader will have a firm understanding of what Dan’s got in mind.  Maybe lawyer readers who are smarter than this curmudgeon will get it.  If so, maybe you can explain it to me using small words, as I still can’t figure out why Dan argues that this will pan out better than Katz.

Nothing to Hide has plenty of meat for those of us interested in the issue of privacy rights and how they’ve been undermined and abused for the benefit of the government.  If you’ve got a yearning for a deeper understanding of the issues, the problems and the law, it’s a worthy effort.  Make no mistake that it’s light reading, or speckled with anecdotes that will make your hair stand on end. 

It’s a scholarly work, stretched out to book length and makes its points with subtlety and nuance, maybe more softly than most lawyers would like or appreciate.  Still, if you have a sincere interest in one of the most important subjects of our day, particularly as the TSA scopes and gropes in the interest of protecting us from whatever and new technology virtually assures that no aspect of our lives will be secure from government databases and inspection, this is a book you want to read.