In his press conference today (August 9, 2013), President Obama pointed out that the Foreign Intelligence Surveillance Court (FISC) must balance security and privacy. He acknowledged the concern that as the FISC only hears one side, “it may tilt it too far in favour of security, (and it) may not pay enough attention to liberty”.
As Mr Obama points out, “technology has given governments…unprecedented capability to monitor communications”. The President said that the problem with Snowden’s whistleblowing about NSA surveillance activities, especially the way the information has “come out in drips and drabs, sometimes coming out sideways”, was that people did not get the complete picture and may jump to incorrect conclusions. “Rather than have a trunk come out here and a leg come out there and a tail come out there, let’s just put the whole elephant out there so people know exactly what they’re looking at”.
In explaining his frustration with Snowden’s whistleblowing, Mr Obama inadvertently described the very reason why widespread government surveillance is a privacy issue in the first place – because government spying only ever harvests partial information on people, this can easily lead government agents to jump to incorrect conclusions about innocent people. It is not only the NSA who can be misunderstood, it is those under surveillance by the NSA who can be misunderstood with devastating personal consequences.
A government agent who reads a few emails and listens to a few calls could easily jump to the wrong conclusions about an individual. Daniel Solove calls this the problem of aggregation, which arises when small pieces of innocuous data are combined and conclusions are formed. A recent example is the New York woman who wanted to cook lentils so she searched the internet for a pressure cooker. Meanwhile, her husband was searching online for a backpack, and their son was reading online about the Boston bombings. In no time at all, their house was surrounded by an armed taskforce. From lentils to terrorism in the blink of an eye.
It is because government surveillance agents only ever see a trunk or a leg or a tail, and never the entire elephant, that incorrect conclusions can be made which can have lasting consequences for innocent individuals. The individual is only consulted after government agents independently conclude that their target is a terrorism threat. As Bruce Schneier has pointed out, privacy matters even if you aren’t doing anything wrong.
Privacy is a fundamental human right, the erosion of which represents a loss of freedom. George Radwanski, the Canadian Privacy Commissioner, maintains that the (Canadian) government was using 911 and terrorism as an excuse for the collection of individual private data. Surveillance can inhibit free speech and free association, which represents a loss of freedom.
The gathering of masses of personal data and the secret processing of that data, makes us feel powerless and vulnerable. Up to now there has been a lack of transparency and accountability on the part of the surveillance authority. The process provides the government with more power. The secrecy of the data gathering and processing means people have no say in how the data is used and whether it is accurate or not, or whether inferences gained from combining separate bits of data are accurate. This creates a power imbalance between government and the people. It gives government agents enormous power over citizens. It makes us fearful of governments. Simply the fact that people are watched or feel like they are being watched, changes their behaviour. It especially affects those who already have a distrust for authority, legitimate or otherwise. As we know, power can be abused, especially by governments, and is it not simply a matter of time until evidence of abuse of the government’s data mining powers comes to light?
What guarantees are there that the data gathered for one purpose is not used for another purpose? It is very tempting to use data gathered for anti-terrorism purposes, for political gain. Masses of stored, accessible personal data provides irresistible temptation. Mankind has shown to be a poor self-regulator when the opportunity to secretly benefit arises. Would governments resist the temptation to gain from insight for example, into the private operations of the press, labour organisations, foreign companies, lobby groups who oppose legislation, activists groups? What would Nixon have done? In a scenario of erosion of privacy how can we be sure there is a free press and free elections?
What about privileged communication such as between lawyer and client, doctor or psychologist and patient, clergyman and worshipper, husband and wife – this communication is no longer confidential in the eyes of the surveillance authority. For example, what if an individual is engaged in a court case against the government, would the government resist access to his confidential lawyer/client conversations. Do the NSA’s requirements outweigh the interests of confidentiality? Most of the NSA’s work is carried out by private companies. What if the court case is between an individual and a private company such as Booz Allen with access to NSA data?
Government surveillance naturally expands in a process of mission creep – like the frog in slowly heating water – it gradually gets more and more intense incrementally over time, without many noticing. There is no natural end to the data gathering, it will continue until the government are compelled to stop. Or until every minute details of our lives is recorded, as if by Google Glass, available to be played back and analysed in secret, by anonymous, suspicious agents. There is no limit to governments’ desire for more power just as there is no limit to individuals’ desire for more and more personal wealth.
With all this surveillance data collected, what about data leaks? Government are notoriously poor at securely looking after sensitive public data. The data is personal and can be used to impersonate and defraud. Governments are also notorious at cover-up. If they misuse private data, can we trust them to be transparent and disclose? Nobody is watching the watchers.
The erosion of privacy in Western countries since 2001 is being driven by the US. The US reportedly pays for a large portion of Britain’s GCHQ and probably finances a good deal of the surveillance infrastructure in other Five Eyes countries (Canada, Australia and New Zealand). In these countries, Big Brother is being led by Bigger Uncle Sam.
How have the latest NSA revelations affected us? How many have pondered recently when talking on the phone, typing an email, or surfing the net, and considered the implications of the NSA watching us? How many of us have paused in the middle of something, and considered how a surveillance agent could possibly misconstrue what we are currently doing online or on the phone? It is these doubts and suspicions that are a cost of the reduction in our privacy. It is a form of fear, fear of overwhelming power.
Privacy is important for dignity. Government surveillance, and the imbalance of power that it produces, reduces our dignity. Privacy is a basic human need. Privacy is intrinsic to basic liberty. It is part of what it is to be civilised. I wholeheartedly praise Mr Obama’s initiatives to introduce greater privacy checks and balances into the process, and for more transparency to expose the whole elephant. Let’s see whether he delivers.