Why “If you have nothing to hide then you have nothing to worry about” is wrong

 “If you have nothing to hide, then you have nothing to worry about”

Ah the opening salvo of the stop and search debate. Start talking about traffic stops, DUI, or drug arrest and someone is going to say it. OK calling it a debate is a stretch since the constant “yeah but [what they just said but louder]” usually comes two words into my response and opinions aren’t changed but technically it’s a “debate”.  Ninety-nine percent of the time this line comes from someone closely tied to law enforcement, takes their job seriously, and genuinely want to do the right thing.  The linear thought here is only individuals engaged in illegal activity would be worried about the cops searching their pockets, therefore all LEOs should be able to search anyone, anytime, anywhere.  I’ve had this exact sentiment expressed by several people who were at some point at the Academy . It is usually said shortly after starting the Bill of Rights portion of the course, specifically when they hit the 4th amendment.  I’ve rarely heard anyone say this phrase before learning about the 4th Amendment so somehow the idea “people have rights and you can’t just violate those rights” has opponents. “If you have nothing to hide” is dangerous because it shows a fundamental misunderstanding of the Bill of Rights and how it applies to individuals versus how it applies to “the Government”.

 

It’s not a little misunderstanding

Here’s the thing, nowhere in the 4th Amendment or anywhere else in the Bill of Rights is there an asterisk leading to “except for law enforcement to make sure you have nothing to hide”.  Despite SCOTUS creating certain exceptions to the warrant requirement over the years- LEO convenience isn’t one of them.  Instead the 4th Amendment prohibits the government from conducting “warrant-less search and seizure ” by placing an additional burden on law enforcement before they can search your sock drawer.  To secure a warrant a LEO has to provide a sworn affidavit, supported by evidence, to a neutral and detached Magistrate (Judge). Then the LEO has to get the Judge to agree there is probable cause and sign. What constitutes probable cause can (and does) vary but probable cause still requires some evidence and some work to convince a Judge to sign, a gut feeling isn’t enough. Probable cause requires a reason.  So at the basic level the 4th Amendment forces “the Government” to have a reason.

 

All oak are trees, not all trees are oak

Why ” if you have nothing to hide” is a dangerous fallacy lies in the root belief necessary for this line of thinking to germinate- that the Government (via LEOs) should be able to act without limits when dealing with its populace and search anyone, anytime, anywhere.  This might be attractive if you are always  doing the search- never the person being searched. In the mind of the speaker, they are always conducting the search.  In this context “if you have nothing to hide,…” boils down to the speaker’s belief only individuals engaged in suspicious (i.e. criminal) behavior would be searched. This line of thinking has a glaring flaw because it relies on speaker always acting as “the Government”.  The speaker is viewing the 4th amendment and its warrant requirement as a hurdle for them as “the Government” to overcome. This point of view is like going up the slide to walk down the stairs- not only did you start at the wrong part but you probably don’t understand why people like the slide.  The 4th amendment might limit individuals when they act as “the Government” but no one is always in the position of “the Government”.

 

Privacy isn’t a crime, it’s a right

We all have personal details we’d rather not be scrutinized by strangers just because those strangers want to look “just in case”.   Certain details like medical records are inherently personal. Other details like the 6th grade picture you wish could be erased from history are personally embarrassing. Privacy isn’t suspicious and it isn’t criminal.  There are certain details of everyone’s life they want kept hidden, no reason necessary. The 4th Amendment doesn’t require a reason for me, you, or the speaker to hide whatever we deem private.  The only party required to have a reason is “the Government”.

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