Even before Edward Snowden confirmed the extent of signals intelligence undertaken on a systematic basis by the US National Security Agency, the issue of governmental or commercial capture of information relating to individuals had been heating up. Now, in the aftermath of these revelations, European government officials, in particular, have expressed their outrage and demanded responses ranging from the suspension of US-EU trade talks to the development of a separate “European Cloud” to store regional data. While many of these protestations of moral outrage remind me of Captain Renault’s declaration in the film Casablanca that he “was shocked, shocked to find that gambling is going on here!” –- right under his well developed Gallic nose, I do believe important principles are at stake in the tradeoff between individual privacy and institutional data collection, as well as in the tradeoff between national security and international comity. However, just because I believe in a right to privacy, protection from unwarranted government intrusion and commercial exploitation does not mean that these rights should be absolute. My problem with most of what I’ve read to date and what prompts me to write today is that the debate has been one of polar absolutes rather than the careful set of tradeoffs which I believe is required.
I begin with the principle that each human being on the planet has an inherent right to privacy and the conditional ownership of most data relating to himself. As noted above, I do not believe these rights to be absolute – these rights can be individually waived by the citizen through informed consent, collectively waived by her and her fellow citizens through the political process, or implicitly waived by conduct which puts other members of society at risk. I will not here enter into the debate as to what exactly constitutes informed consent, other than to note that there is a legitimate question both legally and ethically as to whether the “I Agree” button which the Apples, Facebooks and Googles of this world employ to get would-be users to agree to 10 pages of clickwrap terms and conditions is or should be effective.
More interesting to me is a range of implicit consent which I believe individuals grant to their governments through the police power to protect them. So, for example, I have never been explicitly asked by the New York or London Metropolitan Police to consent to having my image recorded by the thousands of video cameras deployed in these great cities; however, having been born in New York and having lived for many years in London, I believe I have implicitly waived whatever inherent right I may have once possessed to maintain the privacy of my image, so that the police authorities can more effectively protect me from actual or potential threats. Would it bother me if the NYPD shared with the FBI access to its database of a thousand videos of me walking through Times Square? Not particularly. How about with MI5 or MI6? Now, I’d begin to worry, but not complain. How about the Russian or Chinese clandestine services? Now, I would like this sharing to be limited to occasions of specific and violent threat, but as a practical matter, my only true protection is through laws adopted by my elected officials or my fundamental rights under the US Constitution.
I offer the above example to illustrate that issues of individual rights to privacy are seldom black and white and require a careful balancing of the importance of the societal/governmental issue presented versus the individual’s rational expectation of privacy. So, on this basis, I do NOT believe any government should have the right to intercept and listen in to my phone calls or to open and read my physical or e-mail; however, I do not have an issue with a court granting a search warrant to enter my home or tap my phone or email if there is a reasonable basis to believe that I have committed a crime or am planning a violent terrorist act.
Now, so far, I have largely dealt with the issues of individual consent versus governmental data capture within a single nation committed to the rule of law. I think the issues get much more complicated in cases such as NSA/Snowden where the US government allegedly collected vast amounts of information concerning non-US individuals. As in the case of targeting foreign nationals for drone assassination, I think the US will come to regret exploiting its current significant technological superiority, once other nations, perhaps less benign in their intentions, begin to close the technology gap. My concern here is to treat citizens of other countries no differentially than the US treats its own citizens, other than in very special circumstances such as when the US is at war with that country. The risk, of course, is whether we would feel equally comfortable if the Islamic Republic of Iran intercepted and listened to all international phone calls to or from the US?
I have no similar reservation with respect to one nation spying on another. Both through traditional human intelligence work (literally, spies) and long-standing signals intelligence, countries have been spying on one another since ancient times. I do have an issue with governments spying on the commercial enterprises of other nations to steal their intellectual property, but this has less to do with human rights than my deeply held belief in fair competition.
So, where does this all leave us? I expect and want my government to protect my country and my family from threats foreign and domestic. I recognize that rights to privacy are not and should not be absolute. I recognize that other less legalistic societies than the Anglo-Saxon may balance these principles differently. And I also recognize that law enforcement sometimes needs to “bend a few rules” when in hot pursuit or when the danger is great and imminent, but these cases should be few and far between and disclosed as soon as possible afterwards to avoid undermining the legitimacy of the government taking such action and to prevent other governments reflexively responding in kind.
As we converge towards a more integrated global information society we need an international public conversation about individual rights and the role of governments in protecting the citizens of their respective societies when their tools now easily extend across borders. So, while Edward Snowden has likely violated US law, perhaps the international debate his case has spawned can provide some lasting benefit.