A recurring argument in defense of legislative measures eroding civil liberties is that these measures provide the needed security for citizens. Especially the right to privacy has suffered immensely because of this seemingly strong but false argument.
Now the argument has been put forward in a rather extreme form -“security and privacy are a zero sum game”- by a National Intelligence officer in the United States. He makes the argument in the context of Internet surveillance proposals that would include easy access to Web search records for the U.S. government.
The Opennet initiative has a reaction that sums up a number of reasons why the argument is wrong and dangerous. It concludes: “To describe conflicts between privacy and security as a zero-sum game is to obscure the value of [Congressional, judicial, popular, or other form of] oversight and of careful weighings, and thus is inappropriate whatever oneâ€™s views of the appropriate trade-off between privacy and security in any given situation.”
I agree that the argument of the zero sum game is wrong and probably dangerous, and there are many more reasons for that. They result from the falsities in the general argument that in case the prevention of (perceived) new or increased harms to society is considered to justify a change in the existing scheme of civil liberties, that process has to be understood in terms of “striking a new balance between liberty and security”. A great analysis of that argument in the context of terrorism politics has been made by Jeremy Waldron in his article ‘Security and Liberty: The Image of Balance’, Journal of Political Philosophy 11 (2), 191â€“210.
Waldron gives four fundamental reasons why this general argument deserves close scrutiny:
“(i) Objections to consequentialism. Talk of balanceâ€”particularly talk of changes in the balance as circumstances and consequences changeâ€”may not be appropriate in the realm of civil liberties. Civil liberties are associated with rights, and rightsdiscourse is often resolutely anti-consequentialist. [...]“ The zero sum game argument especially suffers from the objection against consequentialism.
“(ii) Difficulties with distribution. Though we may talk of balancing our liberties against our security, we need to pay some attention to the fact that the real diminution in liberty may affect some people more than others.” I find this argument rather important in practice. History has shown that all sort of groups have suffered disproportionally, often unjustifiably, from the lack of civil rights, be it political opposition, ethnic or religious minorities or economically less well off.
“(iii) Unintended effects. When liberty is conceived as negative liberty, a reduction in liberty is achieved by enhancing the power of the state. This is done so that the enhanced power can be used to combat terrorism. But it would be naive to assume that this is the only thing that that enhanced power can be used for. We need to consider the possibility that diminishing liberty might also diminish security against the state, even as it enhances security against terrorism.”
In the case of Web search privacy, one of these (unintended?) effects is the chilling effect on the information practices of citizens. Recently I taught a class in Internet & privacy at the Institute for Information Law in Amsterdam, where I conduct my PhD research. We got to discuss Web Search Privacy in detail. In the discussion several students stated they would not search about certain sensitive issues they had an interest in, because they were worried that these queries might end up in the hands of certain government agencies. Now the legislation is drafted that makes the conceptions of these students reality. The cited judgment of the German Constitutional Court below can serve as further comment.
“(iv) Real versus symbolic consequences. Though talk of adjusting the balance sounds like hard-headed consequentialism, it often turns out that those who advocate it have no idea what difference it will actually make to the terrorist threat. Accordingly we must subject these balancing arguments to special scrutiny to see how far they are based on fair estimates of actual consequences and how far they are rooted in the felt need for reprisal, or the comforts of purely symbolic action.” Such symbolic legislation is widespread. An example in the Netherlands is the Identity obligation.
I would like to add to this long list of arguments that security and privacy are in many ways overlapping. Data privacy for instance protects us from identity theft, the Fourth Amendment protects Americans (in theory) from warrantless searches, thus security against the State. That makes it difficult to put them on a scale. Another flaw results from the complexity of both of these notions. Privacy is understood in various ways. Most times security is all together ill defined.
Finally, a defense of data privacy , which could be stressed in this context, is the fundamental relation data privacy has with pluralism and democracy. The German Constitunional Court concluded in 1983:
” A society in which citizens can no longer know, who what when and in which occasions knows about them, is not compatible with the right of informational self-determination. One who is uncertain, whether deviant behavior is continually noticed and durably registered, used, or shared, will attempt not to attract attention through such behavior. [...] This would not only affect the possibilities of individual self-fulfillment, but also the common good, while self-determination is a qualitative requirement of a free and democratic society, built on autonomous citizens. Hence, self-development sets a limit for the individual to the aggregation, registration, usage and sharing of his personal data.
[ my translation of: â€žMit dem Recht auf informationelle Selbstbestimmung wÃ¤ren eine Gesellschaftsordnung und eine diese ermÃ¶glichende Rechtsordnung nicht vereinbar, in der BÃ¼rger nicht mehr wissen kÃ¶nnen, wer was wann und bei welcher Gelegenheit Ã¼ber sie weiÃŸ. Wer unsicher ist, ob abweichende Verhaltensweisen jederzeit notiert und als Information dauerhaft gespeichert, verwendet oder weitergegeben werden, wird versuchen, nicht durch solche Verhaltensweisen aufzufallen. [â€¦] Dies wÃ¼rde nicht nur die individuellen Entfaltungschancen des Einzelnen beeintrÃ¤chtigen, sondern auch das Gemeinwohl, weil Selbstbestimmung eine elementare Funktionsbedingung eines auf HandlungsfÃ¤higkeit und MitwirkungsfÃ¤higkeit seiner BÃ¼rger begrÃ¼ndeten freiheitlichen demokratischen Gemeinwesens ist. Hieraus folgt: Freie Entfaltung der PersÃ¶nlichkeit setzt unter den modernen Bedingungen der Datenverarbeitung den Schutz des Einzelnen gegen unbegrenzte Erhebung, Speicherung, Verwendung und Weitergabe seiner persÃ¶nlichen Daten voraus.”]