Anatomy of a Privacy Victim

Adam Mueller, a police-the-police campaigner, has been convicted and sentenced to three months in jail for recording and posting telephone conversations with a police captain, a high school principal and a school secretary in Manchester, NH. Mueller was calling for comment on a student’s cell phone video allegedly showing a Manchester officer using excessive force. The conviction has led to sympathetic coverage in both the left and right blogospheres.

But one point hasn’t gotten much coverage.  It turns out that Mueller was convicted of violating a privacy law.

He had recorded a conversation “without the consent of all parties to the communication,” a violation of NH 570-A:2. New Hampshire is one of about a dozen “all party consent” states.  The federal government and most states are “one party consent” jurisdictions, where recording is legal if one participant agrees to it.  All-party consent laws (also known as two-party consent laws) were expressly protected when a federal wiretapping law was adopted, on the theory that states should be free to provide additional protection to conversational privacy. Recently, though, these laws have mainly protected the police, who’ve used the laws to arrest bystanders for making cell phone videos of police conduct.

Judging from the outrage such arrests have sparked, it’s safe to say that protecting police from public scrutiny is an unintended consequence of this privacy law. (As I’ve pointed out recently, that is not the only unintended consequence of all-party consent laws.  They’re also bad for computer security. In most states, I can hire someone to screen incoming messages for malware, and as long as I consent to the monitoring there’s no legal problem.  In all-party consent states, though, there’s a real risk that I need the consent of the malware sender before someone can screen his incoming message.)

That laws sometimes have unintended consequences is not news. But as a privacy-watcher, I’ve been struck by the sheer number and variety of unintended consequences spawned by privacy laws.  I coined the phrase “privacy victim” to describe the many people who’ve been harmed by the unintended consequences of privacy laws. Adam Mueller is a privacy victim. There are millions more.

I don’t think this is an accident. Privacy laws are largely efforts to regulate technology.  Some new technology comes along, and we don’t like some of the changes it is likely to bring.  The privacy campaigners tell us that we can keep the good parts of the technology and ban the bad.  So we adopt a new privacy law based on some principle that sounds good to us at the time.  All-party consent laws, for example, responded to cheap taping equipment by adopting the principle that both parties should agree before their conversation is recorded.  It sounded good at the time; after all, wouldn’t any other rule encourage treachery? Then, gradually, cheap recording technology spread, and it became easier and easier to violate the law.  After a while, the principle that sounded so good a decade or two earlier began to seem a little artificial. Our internal privacy expectations had changed, but the law hadn’t.

Inevitably, violations of the law proliferated, to the point where the violations didn’t feel like wrongdoing.  Adam Mueller, remember, posted the evidence that he had committed a felony under New Hampshire law on the Internet. When law-breaking is widespread and unapologetic, the authorities can pick and choose whom they prosecute.  Is it any surprise that they choose to prosecute people who inconvenience the authorities? Or that the laws end up being used to bolster the status quo? Ask Adam Mueller.

No, none of this is a surprise.   Rather, it is the perfectly predictable consequence of most privacy laws.  Regulating technology is a tricky business.  Laws adopted when a technology is born don’t usually fit very well when the technology matures. But having laws on the books that are widely violated because they no longer fit our actual sense of right and wrong practically invites abuse by those in power.

That’s what happened to Adam Mueller and other would-be citizen-journalists who’ve been busted for recording the police. A generation ago it happened to Linda Tripp, whose taping of calls with Monica Lewinsky about her affair with President Clinton spurred 49 Democratic Maryland legislators to demand that she be prosecuted for violating that state’s all-party consent law. And it will happen over and over again, usually in service to the establishment, the more privacy laws we adopt in an effort to regulate future selves we don’t really understand.

Adam Mueller is not the first privacy victim. And he won’t be the last.