In October 2013, four months after Edward Snowden revealed a massive NSA surveillance program that swept up the phone records of millions of unwitting Americans, PEN America, which advocates for writers and free expression, surveyed more than 500 American writers to ask how the revelation had changed their work. Sixteen percent of respondents said they had avoided writing or speaking about a particular topic, while 24 percent said they deliberately steered around certain subjects in their phone and email conversations.

No one had ordered them to modify their behavior. Yet, people engaged in the profession of saying things were, by their own account, self-censoring.

They self-censored because they knew, or suspected, their communications were being monitored. And it’s when we realize we’re being watched that I think the strongest argument for privacy emerges.

It’s not an argument about secrets, but about who we are and who gets to author who we become. In other words, it’s about our autonomy.1

Too often people dismiss the importance of privacy with the oft-repeated line: I have nothing to hide.

In some ways it’s a reasonable enough position. Isn’t privacy for criminals and bad people? In 2009, Google’s then-CEO gave the canonical version of this logic: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” If you’re not a criminal, a dissident, or a journalist protecting sources, why should you care?

The standard answers to the privacy skeptic are familiar: Data breaches put you at risk. Private information can be weaponized by stalkers, adversaries, or the government—your personal information is open to the highest bidder. Data can be permanent and what is innocuous today might not be tomorrow.

These may be true, but they accept the view that privacy is a cost-benefit question that pits your data against your safety or convenience. Privacy advocates say the cost outweighs the benefits, while skeptics remain unconvinced.

“The key misunderstanding is that the nothing to hide argument views privacy in particular ways—as a form of secrecy, as the right to hide things. But there are many other types of harm involved beyond exposing one’s secrets to the government,” writes privacy scholar .

It’s those other harms—in particular the harm to one’s self—that lay a stronger foundation for the argument that people should care about their privacy.

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Have you ever avoided typing something into Google because it was too revealing—perhaps a medical or legal question? Have you ever angled your phone screen away from someone sitting next to you even though you’re only texting a friend? Would you hand your unlocked phone to your boss and let them scroll through your messages or photos? In each of these cases, it’s not about having something to hide. It’s about choosing when and where barriers exist.

If we strip away the ability to control who sees what, we do not end up with a more honest self. We get one flat, guarded self that performs for everybody. And the performing self is one that conforms to the expectations of others.2

It’s the unobserved spaces that allow for us to draft and revise our actual “selves.” We are not born the people we are today.3 We are shaped by our experiences, the people we associate with, the things we read and consume. But also by our thoughts, the feelings we sit with, and the things we decide to keep to ourselves.

This is essential to how a person is authored, and without space for this exercise, we lose the ability to write our selves.4

The English philosopher Jeremy Bentham figured out how observation changes behavior in the late 18th century, though he thought it was a feature, not a bug. His “panopticon” was a prison designed as a ring of cells around a central watchtower, built so that no prisoner could ever tell when or whether the guard was looking at him. Constant surveillance wasn’t necessary if the prisoner was unable to determine when he was being watched.

Two centuries later, the French philosopher Michel Foucault called it “a design of subtle coercion,” making the darker point that surveillance doesn’t just record behavior—it produces it. The prisoner who couldn’t tell if he was being watched begins to watch himself. And he argued much of society has been adopting similar models: “Is it surprising that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?”

When we are aware that we are being watched, most of us change our behavior. We begin to perform. And if surveillance leaves no space unobserved, the harm is not just conformity, as Bentham and Foucault described, but a lack of self-development.

You don’t see the Google search you didn’t run or the opinion you let die because holding it was uncomfortable. But you also don’t see the draft of yourself that never got written: The instrument you didn’t learn, the book you didn’t write, or the joke you never came up with because being good at these things first requires the space to be bad at them. We need unobserved spaces to be bad at things, to fail, and to explore our curiosities on our own. Julie Cohen at Georgetown University says, we need space to “tinker.”

Ultimately, without this space, it is our autonomy that surveillance takes.

Recognizing our loss of autonomy also combats another common shrug from those who dismiss the need for privacy: that privacy is futile. The data is already out there; the cameras are already up; why fight it?

But privacy has never been a binary that is either intact or breached. Instead, it is a margin. You do not need to be a ghost to remain the author of your own life. It does not require renouncing technology and moving to a cabin in the woods. What is needed is simply enough unwatched space—enough room, enough latitude to explore—for the drafting to happen.

Margins can be preserved. The problem we face today is that they can also be eroded one reasonable-sounding concession at a time: an age-verification law here, a network of automatic license-plate readers there. Each arrives with a defensible rationale, but each one also tightens the margin where an individual’s drafting can happen. To quote again, “[P]rivacy is threatened not by singular egregious acts, but by a slow series of relatively minor acts which gradually begin to add up.”

So here is the case compressed: a person who is always watched is always performing; a person who is always performing is always conforming; and a person who is always conforming is being written by others.

Privacy is not about hiding the self, but rather a precondition for having one.

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Read this—it’s important! Nothing here reflects the views of anyone but me. Further, I am not a lawyer. I am not here to provide advice or tell you what to do. If you find yourself the subject of a law enforcement investigation, hire a licensed attorney who can advise you on your specific situation.

Earlier this year, federal agents raided the Virginia home of Washington Post reporter Hannah Natanson. They weren’t there to arrest her, and she wasn’t suspected of a crime. Instead, agents were there to seize her phone and computers as part of an investigation into the alleged leak of classified information from a Pentagon contractor.

Armed with a search warrant, agents entered Natanson’s home where she told them she owned a laptop and a phone, according to a government filing. She said both were upstairs. Agents seized them, along with a hard drive and even Natanson’s smartwatch.

But the search took a turn when agents found a red backpack in her kitchen, which—despite Natanson’s earlier claim that she only had one laptop—held a second MacBook Pro. They opened the lid and it prompted for a TouchID scan. Natanson insisted that she did not use biometrics on her devices, but they told her to try anyway. When she put her index finger on the reader—the laptop unlocked.

Putting aside what’s been described as a “highly unusual” move by federal agents that threatens press freedom, the search and seizure of Natanson’s devices highlights an ongoing rift in the law regarding the right against self-incrimination and how and when the government can compel you to unlock your devices.

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.“ This is the right not to be compelled to say things that might incriminate you.

But a key limitation of the Fifth Amendment is that it protects testimonial evidence. That’s generally described as anything that would require a person to divulge the “contents of his mind.” In short, these are things you have seen, heard, or know. For example, most courts find that you cannot be compelled to reveal a password for your devices because doing so requires you to divulge something testimonial.

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But the Fifth Amendment does not protect against non-testimonial evidence, which can include physical traits such as your fingerprints. For example, if you’re arrested and booked into jail, authorities can take your fingerprints even though doing so might end up incriminating you. This is because fingerprints are just physical characteristics and furnishing them doesn’t require you to reveal anything testimonial.

This distinction is important when it comes to a person’s ability to invoke their Fifth Amendment privilege against self-incrimination. But it’s not clear right now whether using biometrics on your device is more like a password and therefore testimonial, or simply a physical attribute and therefore non-testimonial.

Most of you probably use biometrics to unlock your phone. Millions of Americans use their face or fingerprint to safeguard their photos, conversations, bank information, and other highly personal details.

But courts don’t agree yet on whether the government can access all that information by compelling you to provide your fingerprint or facial scan, or whether doing so is protected under the Fifth Amendment.

In recent years, two federal appeals courts have weighed in on the issue. In 2024, the Ninth Circuit in United States v. Payne ruled that a face or fingerprint scan is just a physical act. It requires “no such mental process,” which means it is not testimonial in nature. As such, the court said people could be compelled to unlock their devices via their biometrics.

In this case, the court said biometrics were more like producing a key to a safe rather than producing a combination. One is just a physical act, while the other requires divulging something a person knows.

But in 2025, the D.C. Circuit in United States v. Brown found the opposite. The court ruled that compelling someone to unlock their phone with their thumbprint can be testimonial and violate a person’s Fifth Amendment rights.

This is because the court said not all physical acts are non-testimonial. In fact, when someone is compelled to unlock their phone with their fingerprint, the court said doing so communicates several things they must know, including how to open the device, that they know they have control over and access to the device, and which specific fingers will unlock the device.

“[T]he compelled opening of a cellphone itself directly announces the owner’s access to and control over the phone, as well as his mental knowledge of how to unlock the device.” ~ United States v. Brown

The laptop found in the red backpack in Natanson’s kitchen seems to be exactly the kind of situation the D.C. Circuit contemplates.

When agents found that second computer, they did not know whose computer it was. It could have been Natanson’s, but it also could have been a friend’s that was left in her house. But when they told her to try unlocking the device with her finger and it worked, the act communicated several things that she must have known about the device.

Under the D.C. Circuit’s framework, she first demonstrated that she knew the device could be unlocked with biometrics (this may be obvious, though, as the computer prompted for TouchID). Second, despite allegedly telling agents she only had one computer, she demonstrated that she had control over and access to the second laptop. Third, despite allegedly telling agents she didn’t use biometrics, she demonstrated that she knew her index finger would unlock the device.

Now, imagine if there had only been a password prompt. Courts have generally found that the Fifth Amendment protects against compelling someone to reveal their password because it’s testimonial—the warrant used to search Natanson’s home even barred agents from demanding that Natanson reveal any passwords. So had there only been a password, what would agents be able to say about the laptop in the red backpack? Not much.

The search of Natanson’s home and devices is just an example, however. Again, she was not the target of the investigation and she wasn’t suspected of any crime. As such, her Fifth Amendment rights with regard to the devices weren’t really at issue. But her case does seem to demonstrate the difficulty courts have had in nailing down whether biometrics are more like a key, i.e., a mere physical act of production, or whether they are more like a password that requires a person to communicate things that an individual knows about the device in question.

It’s a significant open question as millions of Americans are walking around right now with phones and devices that contain their most sensitive personal information, but are protected only by a single gatekeeper: their face or fingerprint. And it’s not clear whether—and under what circumstances—the government can or cannot compel people to use them.

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Read this — it’s important! Nothing here reflects the views of anyone but me. Further, I am not a lawyer. I have an interest in privacy and civil rights, but I am not here to provide advice or tell you what to do. If you find yourself the subject of a law enforcement investigation, hire a licensed attorney who can advise you on your specific situation.

It’s, obviously, been a while since I have posted here. I have been taking a break from all kinds of social media.

There came a time when it became too anger-inducing and too mind-numbing for me to continue keeping those apps on my phone and in my life. TikTok? Gone. Instagram? Gone. The only one I couldn’t get rid of was YouTube (there just isn’t an adequate replacement for it).

I have also been busy with law school, but that is now coming to a close. Though, that does not mean I expect to have any more free time. In fact, less as I start practicing.

What I missed about social media

But over the last year or so, I have missed a few things about social media.

I have missed having an outlet. I have missed having a place to share my thoughts and opinions, or happenings in my life—like this post and where I have been.

This desire for an outlet tugs at me to come back, but while I’ve been away I have tried to think about what outle…

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Happy Friday! — As you may or may not know, I’ve been working my way through law school for the past two years.

During my time there, I’ve developed quite an interest in intellectual property. It’s an interesting field of law and one that is of increasing importance to businesses.

As a staff member of Fordham’s Intellectual Property, Media and Entertainment Journal, I recently put together an article looking at an ongoing trademark lawsuit involving OpenAI, the company behind ChatGPT.

It’s an interesting case — as it was OpenAI that actually started the lawsuit against a little-know tech company called Open Artificial Intelligence, alleging trademark infringement among other claims. OpenAI sued after it was unable to secure a trademark registration for its name.

But now, Open Artificial Intelligence has filed infringement counterclaims of their own, and just last month a judge allowed a number of claims to move forward.

Click here to read my article on the trademark case embroiling the mo…

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I just wanted to send a quick note about one exciting thing I did this week. I was able to fill in for Brad Mielke and host ABC News’ flagship daily news podcast, Start Here.

Over the years, Brad has really turned this ~20-minute show into something special. Each day, he and the Start Here team work to bring listeners three or four of the day’s top news stories and they do it in a way that’s not only informative, but thought-provoking, entertaining, and a bit funny at times.

I was really excited to join the team this week and fill in for Brad as he took a few days off. So please, take a listen to my stab at Start Here — it’s available wherever you get your podcasts.

I think we put together a great episode looking at the upcoming Coronation of King Charles — not a fawning look at the pomp and circumstance, but instead why this may be the last coronation of its kind; the seditious conspiracy verdicts against some of the leaders of the Proud B…

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In the late 1970s and into the early 1980s, Jeffrey Epstein was working at Bear Stearns, the New York-based investment bank and trading firm that eventually collapsed in 2008.

At this time, Epstein lived in anonymity. It would be decades before he’d become a household name for conspiracy theories and a talking point at White House press briefings.

Since Epstein’s arrest in 2019, a virtual army of journalists has worked (myself included) to piece together Epstein’s past and how he became the infamous billionaire sex offender he became.

Part of Epstein’s mystique is how little we’ve heard directly from Epstein himself over the years. Though he had appeared in newspapers for various reasons, rarely was he the direct subject of the story before the early 2000s. Two of the earliest profiles on Epstein came in 2002 and 2003, under alluring titles such as Jeffrey Epstein: International Money Man of Mystery and The Talented Mr. Epstein.

Now, more of the puzzle surrounding Epstein’s opaque past was filled in this week with the release of a 1981 deposition transcript in which Epstein was questioned by the Securities and Exchange Commission as part of an insider-trading investigation into Bear Stearns.

Here’s what we learned.

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On the first anniversary of the January 6th riot at the U.S. Capitol, let’s take a look at another time violence came to the floor of the U.S. Senate.

It happened on May 22nd, 1856, when Rep. Preston Brooks assaulted anti-slavery Republican Sen. Charles Sumner inside the Senate chamber following comments that Sumner made about a relative of Brooks, Sen. Andrew Butler.

During a speech on the Senate floor, Sumner likened Butler’s support of slavery to Butler having a mistress “who, though ugly to others, is always lovely to him.”

After the Senate adjourned for the day, Brooks entered the chamber with a cane and beat Sumner over the head.

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On October 27th at Gotham Hall in New York City, I accepted the 2021 Edward R. Murrow Award for Network Radio Investigative Reporting.

It’s such a profound honor to accept this award on behalf of ABC News and all the incredible journalists who helped make Truth and Lies: Jeffrey Epstein possible.

The 2021 Murrow Awards Gala saw ABC News accept a total of nine award, including Overall Excellence for both Network Television and Network Radio.

Congrats to all the incredible journalists who were recognized at the Murrow Awards Gala!

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It’s an honor to announce that Truth and Lies: Jeffrey Epstein is the winner of the 2021 Edward R. Murrow Award for Network Radio Investigative Reporting!

This is one of journalism’s most coveted awards and, to my knowledge, just the second time that ABC News Radio has ever been awarded a National Edward R. Murrow Award for investigative reporting.

There are so many people to thank for their work on this project, so here goes:

A huge thanks to the incredible journalists within ABC News’ Investigative Unit, including James Hill, Cindy Galli, Chris Vlasto, Pete Madden, Chris Francescani, Kaitlyn Folmer, Emily Ruchalski, Halley Freger, and more.

Thanks to our legal and standards team, which included Betsy Shorr and Maria MatasarPadilla, who poured over our scripts to ensure our reporting stood on a solid foundation and was supported by the facts.

Thanks to our contributing financial reporters Tom Volscho and Roddy Boyd who helped break new ground on Jeffrey Epstein’s mysterious financial hist…

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