The Download of the Week is Privacy-Privacy Tradeoffs by David Pozen. Here is the abstract:
Legal and policy debates about privacy revolve around conflicts between privacy and other goods. But privacy also conflicts with itself. Whenever securing privacy on one margin compromises privacy on another margin, a "privacy-privacy tradeoff" arises.
This Essay introduces the phenomenon of privacy-privacy tradeoffs, with particular attention to their role in National Security Agency (NSA) surveillance. After explaining why these tradeoffs are pervasive in modern society and developing a typology, the Essay shows that many of the arguments made by the NSA's defenders appeal not only to a national security need but also to a privacy-privacy tradeoff. An appreciation of these tradeoffs, the Essay contends, illuminates the structure and the stakes of debates over surveillance law specifically and privacy policy generally.
And here is one example of a tradeoff from the paper:
[T]ighter limits on what sorts of data the NSA can electronically collect or mine at the
front end might lead to looser—and more privacy-invasive—investigatory practices
at the back end. Beyond the automated “sifting” function . . . a variety of mechanisms could conceivably produce such a result. In the absence of bulk metadata collection under Section 215 of the PATRIOT Act, for instance, the NSA might seek to identify suspected foreign terrorists’ American associates in a less surgical manner, through ever-widening wiretaps instead of link analysis and contact chaining. Tighter limits on what may be acquired under any particular authority, such as Section 215, could push NSA officers to submit broader warrant applications to the FISC72 or to make greater use of other legal authorities, as by expanding the targeting of non-U.S. persons under Section 702 of the Foreign Intelligence Surveillance Act on the hope or expectation that this would yield more “incidental” collection of U.S. persons’ communications. Barriers to domestic acquisition could likewise lead to more aggressive “privacy shopping,” whereby the NSA relies on foreign partners to obtain data it cannot lawfully or efficiently obtain on its own.
Highly recommended!