As reported in the BBC, “Parliament’s intelligence watchdog is to hear evidence from the public as part of a widening of its inquiry into UK spy agencies’ intercept activities.” Whilst in many ways this is to be welcomed, the piece includes a somewhat alarming but extremely revealing statement from Sir Malcolm Rifkind, the Chairman of the Intelligence and Security Committee:
“There is a balance to be found between our individual right to privacy and our collective right to security.”
This hits at the heart of the problem – it reveals fundamental misconceptions of the nature and importance of privacy, as well as the impact on society of the kind of universal surveillance that the authorities in the UK, US and elsewhere are undertaking.
Privacy is not just an individual right
Privacy is often misconstrued as a purely individual right – indeed, it is sometimes characterised as an ‘anti-community’ right, a right to hide yourself away from society. Society, in this view, would be better if none of us had any privacy – a ‘transparent society’. In practice, nothing could be further from the truth: privacy is something that has collective benefit, supporting coherent societies. Privacy isn’t so much about ‘hiding’ things as being able to have some sort of control over your life. The more control people have, the more freely and positively they are likely to behave. Most of us realise this when we consider our own lives. We wear clothes, we present ourselves in particular ways, and we behave more positively as a result. We talk more freely with our friends and relations knowing (or assuming) that what we talk about won’t be plastered all over noticeboards, told to all our colleagues, to the police and so forth. Privacy has a crucial social function – it’s not about individuals vs. society. Very much the opposite.
Surveillance doesn’t just impact upon privacy
The idea that surveillance impacts only upon privacy is equally misconceived. Surveillance impacts upon many different aspects of our lives – and how we function in this ‘democratic’ society of ours. In human rights terms, it impacts upon a wide range of those rights that we consider crucial: in particular, as well as privacy it impacts upon freedom of expression, freedom of association and freedom of assembly, amongst others.
Freedom of expression
The issue of freedom of expression is particularly pertinent. Again, privacy is often misconstrued as somehow an ‘enemy’ of freedom of expression – Guido Fawkes, for example, suggested that ‘privacy is a euphemism for censorship’. He had a point in one particularly narrow context – the way that privacy law has been used by certain celebrities and politicians to attempt to prevent certain stories from being published – but it misses the much wider meaning and importance of privacy.
Without privacy, speech can be chilled. The Nightjack saga is one case in point – because the Nightjack blogger was unable to keep his name private, he had to stop providing an excellent ‘insider’ blog. In Mexico, at least four bloggers writing about the drugs cartels have not just been prevented from blogging – they’ve been sought out, located, and brutally murdered. There are many others for whom privacy is crucial – from whistleblowers to victims of spousal abuse. The internet has given them hitherto unparalleled opportunities to have their voices heard – internet surveillance can take that away. Even the possibility of being located can be enough to silence them.
Internet surveillance not only impacts upon the ability to speak, it impacts upon the ability to receive information – the crucial second part to freedom of speech. If people know that which websites they visit will be tracked and observed, they’re much more likely to avoid seeking out information that the authorities or others might deem ‘inappropriate’ or ‘untrustworthy’. That, potentially, is a huge chilling effect. It should not be a surprise that the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, sees the link between privacy and freedom of expression as direct and crucial.
“States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; and infringement upon one can be both the cause and consequence of an infringement upon the other.”
Freedom of association and assembly
Freedom of association and assembly is equally at risk from surveillance. The internet offers unparalleled opportunities for groups to gather and work together – not just working online, but organising and coordinating assembly and association offline. The role the net played in the Arab Spring has almost certainly been exaggerated – but it did play a part, and it continues to be crucial for many activists, protestors and so forth. The authorities realise this, and also that through surveillance they can counter it. A headline from a few months ago in the UK, “Whitehall chiefs scan Twitter to head off badger protests” should have rung the alarm bells – is ‘heading off’ a protest an appropriate use of surveillance? It is certainly a practical one – and with the addition of things like geo-location data the opportunities for surveillance to block association and assembly both offline and online is one that needs serious consideration.
A serious debate
All this matters. It isn’t a question of ‘quaint’ and ‘individual’ privacy, a kind of luxury in today’s dangerous world, being balanced against the heavy, important and deadly-serious issue of security. If expressed in those misleading terms it is easy to see which direction the balance will go. Privacy matters far more than that – and it matters not just to individuals but to society as a whole. It underpins many of our most fundamental and hard-won freedoms – the civil rights that have been something we, as members of liberal and democratic societies have been most proud of.
Security matters – of course it does – but even the suggestion that this kind of surveillance improves our security should be taken with a distinct pinch of salt. The evidence put forward to suggest that it works has been sketchy at best, and in many cases quickly and easily debunked when put forward. Much more has to be done to persuade people that this kind of surveillance is actually necessary. The evidential bar should be very high – because the impact of this surveillance can be very significant.
This post originally appeared on Paul Bernal’s Blog and is reproduced with permission and thanks