Pitting Privacy Against Security: Do You Have Something to Hide?

Seeing Both Sides

The internet is a place ripe with extreme reactions to just about anything. A short browse on almost any social space will be full of vitriol regarding some topic or another. It is a hotbed for extremism, and too often people do not practice critical thinking, which is incredibly dangerous in a place that is such a firehose of information that can be easily manipulated, poorly reasoned or sourced. 

A majority of the arguments you see on the internet involve the act of both sides 'talking past each other,' with neither side really coming to any sound resolution. This is also in part due to neither side presenting arguments which engage with one another, merely using the large talking points of their position to 'talk down' or patronize the other.

This also sums up partially how I regard the 'debate' of digital privacy and security online. For many of those who are tech enthusiasts, especially in the realm of the Free/Libre and Open Source community (FLOSS), the 'other side of the coin' in the debate about privacy is not a debate at all, merely dogma. While I find myself in strong agreement with most of the community about the importance of digital privacy and security, I am extremely wary of echo-chambers and always remain open-minded and cautious of opposing thoughts and arguments. In fact, I enjoy seeking out such opposition, if only to stir the pot an get people thinking critically about their values.

In this article my aim is to examine a counterargument for privacy, and an interesting one at that. What I hope to achieve here is to actually strengthen the argument for privacy by giving a charitable look at such an alternative. Also, to get people thinking about these alternatives in order to stir up more enriching discussions.

An Argument to Expand State Surveillance Powers

Philosopher James Stacey Taylor in his paper, In Praise of Big Brother: Why We Should Learn to Stop Worrying and Love Government Surveillance, pits privacy against security. His argument will make every privacy advocate recoil, as he argues that we should encourage the expansion of surveillance powers in the public and private domain.

Any worries about this alarming proposal can be quickly dispelled by Taylor when we consider the widely held view that, in certain circumstances, it is morally permissible for the State to secure information about past events. For example, it is morally permissible for the State to acquire information by compelling witnesses to testify on past events in criminal trials (i.e. subpoenaing witness to disclose info, installing surveillance devices to monitor those suspected of crimes, etc.). Though, the State may only use hindsight to determine what info is morally permissible to have access to (determining what info is relevant to collect for a case). Given this, the state is in principle morally permitted to place citizens under constant surveillance. (!)

It doesn't stop here, Taylor also wants to argue that a State using such surveillance would actually be morally preferable to one where it did not. As such a State would have reduced crime, justice would be better served, and fewer costs would be imposed on witnesses. If we can accept that the state may perform surveillance if they have sufficient suspicions of criminal activity, then there should be no moral bar to their gaining records of past events that may have been generated via pre-existing surveillance devices.

Again, it is important to note that the State would be restricted on their ability to access the data on pre-existing surveillance devices and would also need subpoenas to review it. Thus agents of the State may only use hindsight to determine if it is appropriate to access such data. This means that the State does not have easy access to all the data that it collects, only what it may determine is morally justified to access. Furthermore, that the State may only secure the minimum amount of information that it needs for its legitimate purposes (i.e. only enough to provide sufficient evidence).

This argument supports the notion that the State may find justifiable reasons to place surveillance devices inside someone's home, though it does not support doing so without their consent (unless they have probable cause to do so). The idea is that it could be beneficial to your own safety and that your privacy would be respected (no one is unnecessarily watching). It attempts to place reasonable limits on surveillance when it ceases to be morally justifiable.

The advantages of such surveillance are plenty, witnesses would no longer be required for cases, and better justice could be served by eliminating the need to rely on potentially unreliable human witnesses. Judges would not need to further make judgements on the reliability of witness testimony, as the facts of events could be laid out and taken at face value, free from the potential biases of the judges themselves or the influence of a lawyers cross-examination.

Unlike in Orwell's 1984, people would not be under constant surveillance, because no one would be actively watching. So crime would not be deterred by the fact that they may be caught while in the act, but rather by the likelihood of being identified for committing the crime because it was previously recorded. This would be beneficial because it would also deter police officers from extending the limits of their authority to catch criminals or suspects.

The Human Variable - The Abuse of Power and Information

Taylor is well aware of this objection and addresses it in this same paper. As has been stated, the State would be restricted from abusing state surveillance to actively watch people. Though he claims that what we object to is the abuse of state surveillance, which is quite different from objecting to State surveillance itself. He believes that the risk for abuse is outweighed by the potential benefits of such a system to society.

Importantly, he notes that if the state were prone to abuse its citizens in this way prior to the installations of such a system, then there is cause for concern for the consequentialist who weighs these pros and cons. It is equally important, that the consequentialist must also realize that the state does not even require such a surveillance system of surveillance to persecute and oppress its citizens.

Do You Have Something to Hide?

The final two objections are that such a system of surveillance would violate the privacy of the people subjected to it and that it would compromise their freedom and autonomy.

Neither of these are sound objections according to Taylor.

The first objection misunderstands the limits of this surveillance, since the State would only have access to the information surveillance devices gather when it is morally permissible to do so. Also, that the argument rests upon the fact that there are no new introductions of privacy violations that do not already exist.

He also argues that privacy is a relative notion, that things are private relative to certain people. Crucially, That there are times when private information must legitimately be disclosed.

(e.g. the chequing account you have with your significant other is not private relative to them, but is private from your colleagues) 

Furthermore, it would not threaten the autonomy of citizens because they are not being constantly watched or judged. If they are law-abiding, then they should recognize that the State has no cause for access to such surveillance. Therefore there is nothing to hide, especially if you are not breaking the law.

Why it Doesn't Matter Whether 'You Have Something to Hide' - Pinning Down What Privacy Means

The argument that 'you have nothing to hide' is a common one, and frequently made in defence of such arguments for government surveillance. Of course, 'I have nothing to hide' because I have done nothing illegal, but this really only tackles a small aspect of privacy. Much of Taylor's argument still rests on this notion. We should have nothing to fear if we do nothing illegal, especially if no one is really watching.

There is an endless amount of variations to such arguments, many of which can be found in detail in Daniel J. Solove's paper "I've Got Nothing to Hide" and Other Misunderstandings of Privacy. 

One of the most important points from Solove's article is that arguments such as those made by Taylor mischaracterize privacy. Namely, claiming that privacy is something which is only important to people if the information kept secret would somehow be detrimental to the person if revealed. 

A major part of the defence of privacy comes with its definition, which as Taylor noted, can be highly relative. What we consider strictly 'intimate' information can change from person to person, so this can be either too narrow or broad a definition. Conversely, we cannot conceptualize privacy as 'the right to be left alone,' because what that may entail is far too broad. We are once again thwarted by relativity. 

But there is a solution, Solove points out, that we should accept that privacy is not reducible to some singular essence; but rather a plurality of different things that do not share one element in common, but bear a 'family resemblance' from one another. 

(i.e. the differences between, but very connected nature of: information collection, processing, dissemination and privacy invasions)

For example, you may be ok with the government collecting the individual phone numbers you call, but the way that data is processed and aggregated reveals information about your race, religion or political ideals, which further gets sold (disseminated) to third-parties to target you or others (see: Cambridge Analytica and Facebook) for their own gain. You may not have anything to hide about your likes on Facebook, or even how those like can be aggregated to identify you, but how that data is further spread to profile you could be where you draw the line (and many have, with Facebook).

Taylor is assuming in his article that privacy is for hiding bad things. This is a misconception about privacy, as privacy is rather a plurality of related problems. These problems are so widespread that it doesn't even matter if no information people want to hide is uncovered. Solove notes that surveillance produces a suffocating powerlessness and vulnerability, and even though the examples I have given do not involve the State, it is easy to simply swap 'Facebook' for any government agency collecting large swaths of data. Information can be processed in a number of ways which can in fact reveal things about a person which they may have preferred stayed hidden.

Privacy is Relative

The takeaway here is that it doesn't really matter whether or not you do have something illegal to hide, rather, that there is likely some area of your life which you likely rather not have unnecessarily revealed, taken out of context, or collected at all. Each of these issues is unique, as some people haven no issue with a bank collecting their info, for example, but will change their attitude if the bank spreads that info that had is separate from the initial collection. These kinds of examples can be given endlessly. 

Further, with no limit on government surveillance and the willingness of many people to simply concede that they 'have noting to hide,' they leave themselves without any reasonable expectation of privacy from their government. Meaning that anything you say or do will likely be used against you, leaving you overwhelming vulnerable to the State's will.

The potential effects on free speech and free association are plentiful and chilling to consider. Though, one of the more powerful points to consider is that you having 'nothing to hide' also assumes that everything you have done (since you may be being watched) or will do will always be 'kosher' with your government. With such a concession you admit that you are sufficiently boring to be left alone, and there's nothing wrong with that, but realize that that point alone reveals that our actions, words and associations should always fall in line with those in power.

Privacy being as relative as it is highlights the need for varied discussion on the topic. However, notice that in this discussion so far, I have not properly refuted Taylor's point regarding the fact that surveillance could be morally permissible if the State only ever had 'hindsight' access to it. In order to refute this point, we also must raise issue with the State's ability to obtain information for cases, which is problematic, as I imagine this only obstructs justice and makes it more difficult to carry out the law. It is at this point that some bite the libertarian bullet and advocate for total freedom from the State, though I will not touch on that here, as it brings forth a multitude of further political baggage that needs airing out.

The primary retort to this point would likely be that even if no one is really watching, people would still be wary of their behaviour generally. Since privacy is so pluralistic in nature, it would be difficult to justify the extension of surveillance powers because we would never have any reasonable grounds for privacy in a court of law. The aggregation of even innocuous data can be revealing and used in potentially misleading and damaging ways. Though if the restriction to the access of this data were strong enough, it definitely seems like pro-surveillance drives a hard bargain, despite the disbelief we may have in the ability for such a system to be realistically applied.

With all these difficulties set before us, it potentially brings to light the need for a reasonable degree of privacy to be the default stance, meaning that unless we give explicit consent, there must be the expectation that what we do is private unless clearly stated otherwise. Without such a stance we are left too vulnerable, and granting the State so much power may be setting our expectations impossibly high for their ability to always act with the best interests of the people in mind.

I hope this discussion gets people thinking. Privacy is a much more complicated and varied issue than it seems, there needs to be a pluralism in the discussion itself, rather than strict dogma.

I encourage people to give a read to the two papers referenced here: James Taylor (free, but need a JSTOR account, not downloadable) and Daniel J. Solove (free download access). Also, this TED talk by Glenn Greenwald, which some of my own response is inspired by.

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