The NSA, Data Privacy, and Gay Rights

NSA Headquarters

Living in a state like Virginia where the Republican Party has nominated a slate of virulent homophobes for state wide office makes one perhaps more nervous bout government spying on private American citizens.  Ken Cuccinelli is on record for wanting to recriminalize homosexuality and recently tried to argue that Lawrence v. Texas had not struck down Virginia's sodomy statutes.  The rest of the GOP ticket is equally scary both for gays and also for women and minorities.  How much do we want people like these lunatics to know about us and be able to access without out knowledge.  A piece in Towleroad looks at this question.  Here are some excerpts:

You don't have to be a libertarian to get angry at the jaw-dropping revelations that the American intelligence apparatus has been mining data from various U.S. Internet companies. Many of us are aware that private and public entities know quite a bit about us; data mining, after all, is how the Google banner, Amazon book recommendations, and Facebook sidebar ads work. But few -- outside those of us who study digital privacy -- realized the scope of the NSA's reach. 

The government's intelligence gathering program -- called PRISM -- is ostensibly trying to achieve the worthy goal of preventing terror attacks. But the Kafka-esque bureaucracy it's creating could turn dangerous in the wrong hands. We've seen it before, during red scares that targeted Jews, blacks, gays, intellectuals, and other liberals; so let's not fall into the abyss of complacency by passing off the NSA's behavior as just something that makes us feel safer.

These kinds of privacy invasions have a less direct relationship to the gay community than raids of gay bars or anti-gay employment discrimination or bans on the freedom to marry. But even if it is true that the government only targeted foreigners abroad and did not discriminate on whose data it was gathering, the sweeping nature of NSA data gathering and this troubling example of the lag between our technology and our privacy protections should especially worry traditionally victimized groups.

Privacy law and the gay community have a long history. The explicit elucidation of a constitutional right to sexual privacy in the 1960s helped give us important precedents like the right to access contraception, the right to choose to terminate a pregnancy, and the right to engage in private, consensual sex with someone of the same sex without being thrown in jail. Yet, over the years, our privacy has been invaded to stop the dissemination of gay-related political or cultural speech through the mail, to force us to disclose our memberships in community organizations that advanced gay rights, and to fire us from our jobs when our personal sexual orientation becomes known. 

Privacy is essential for the full realization of gay rights. Why? It's not because we need to hide who we are or hide our sexual conduct.

It would also be an oversimplification to argue that privacy matters to traditionally disadvantaged minorities, in general, and the gay community, in particular, because of the need to hide. Privacy is only partly about the right to keep secrets, from our sexual behavior to our half-naked photos to our community affiliations. Justice Brandeis said it was about the "right to be let alone." Justice Brennan called it "the most central of human needs." One the most well-known privacy scholars said privacy "ensures personal autonomy even when you have nothing to hide."

It should be a matter of bipartisan outrage because of its near limitless, unregulated reach for an undefined purpose. Government power is not in itself a bad thing; limitless power, however, is always a bad thing.  .  .  .  The goals are not always evil, just the cavalier way in which we let government reach those goals.

 Then again, sometimes the goals are laden with personal prejudice. Congress once authorized the Post Office to search through the mail to prevent the spread of "homosexual literature." Joseph McCarthy and the closeted Roy Cohn used Gestapo tactics to force confessions and sent teams of spies to follow alleged gays in the State Department. At one point, 38 states permitted police to search private homes for evidence of "sexual perversion." So, when a conception of privacy does not exist, our rights are at risk.

The erosion of a concept of individual privacy in favor of limitless governmental authority to snoop does violence to those principles of freedom because it challenges the very notion that power has limits. That is not to say that privacy should always win out; privacy, like others rights, has to be balanced against other rights and obligations. But we should not be lulled asleep and shirk our responsibilities as citizens in a republic simply because we don't have anything to hide. We don't, but we have a democracy to maintain.