The news of the NSA surveillance programme has been met with strong criticism in Europe. The European governments have publicly expressed their concerns about the invasion of privacy and its effect on US-EU relations. The statements, though well meant, ring hollow. The EU fears surveillance, but does not appear intent on strengthening the individual’s data protection rights. The revelations reveal gaps between the rhetoric and the reality about individual rights against state monitoring as practiced by the United States and the EU.
In the United States, where there is no right to privacy. As a result, the surveillance shows the extent of the government’s constitutional powers over the individual. Despite the government’s extensive powers, the constitutional process limits those powers. The political system is designed explicitly to defended individual rights. Thus, the individual is protected without recourse to a right to privacy. In Europe, by contrast, there is a strong emphasis on privacy. However, the political systems are not as robust, especially in the UK, for defending individual rights in the way the US system does. One can say that the US does not pretend to protect privacy while the EU does make the attempt but finds ways to limit and constrain its efforts to protect it.
Before the NSA surveillance was revealed, the EU was reviewing its data protection legislation. The first proposal was strong and unambiguous. The intent was to give the individual more power over their personal data. The changes would roll back the state’s control of personal data for the first time. Despite that earlier ambition, the EU states have slowly, but surely, revised and amended away from it. Therefore, as they express shock and dismay over the US surveillance systems, the they work to limit rather than enhance individual data protection rights. The revised legislation means that the individual will be less protected from governments and corporations. The state and corporations will develop their technological powers to collect and use personal data but the individual will find that data with less protection.
The surveillance state reminds that there is little, if any, privacy on the Web or in society. The privacy illusion rests on the assumption that we have a positive right, given to us by the state, which will be protected and must be protected. However, that right is hollow because it is not linked to a person’s natural rights or to their intrinsic worth or nature which the state could not invade. Instead, the individual is at the mercy of the technological state because the right to privacy is a function of the modern or technological state. The belief in the right to privacy is associated with a belief that the internet is “free”. Free in the sense that a person’s self-interest can decide their status and their relationship with governments and society. The relationship between privacy and internet freedom now merge to create a utopian vision. The utopia is a digital state of nature where man can find his fullest digital potential without concern for his natural state as a social or a political animal. Such a view makes the individual vulnerable because they detach him from a proper understanding of his rights and their source.
When Europe created its data protection system, it had learned the painful lessons of what can happen when the government becomes illegitimate. The failure to protect individual rights and defend the common good, allowed the worst excesses of state power to emerge. The totalitarian governments that emerged taught a generation what it meant for man to lose touch with his natural rights. Man became prey to the powerful because they had no basis other than the state’s positive rights to resist. The experience also taught them the need for a liberal democratic government strong enough to resist the urge to dominate the individual by creating rights to restrain the government and resist being captured by extremist political parties. Today, Europe appeared to have misunderstood the lesson Hannah Arendt taught in her masterpiece, The Origins of Totalitarianism. In that book, we see how easily the state could dominate the individual and gain control over society with a minimum of technology.
What was clear then, but confused today, is that the issue was political not technological. Today, the state has vast technological powers over our digital person so we focus on the technological issues. The underlying issue, though, is political because it is about how we are to live. Despite the technological power of the state, the individual has never been so free and capable of organising and speaking publicly against the government. We seem to have a hybrid pre-political digital state of nature. The individual is naked before the state and yet full of pure potential for politically purposeful action because of technology. However, that misunderstands the problem. The problem is our politics is subsumed by a technological vision of politics. We no longer understand what man is nor do we understand what is intrinsically worth defending. Instead, there seems to be a focus on technology, and the technology of privacy, as if that would decide or restore a political relationship between the individual and the state.
The era of internet freedom reveals the danger of technological tyranny.
We face a period of greater peril because we have the illusion of greater freedom with the internet. We continue to believe in the illusion of privacy in the digital era just as we did in a pre-digital age. To paraphrase Rousseau “Man is born free but everywhere he is in digital chains.” Even with the era of “internet freedom”, we still have not answered Rousseau’s basic question about the social contract. Technology does not remove the question. At best, it displaces it. In a strict sense, privacy, to the extent it exists, means that we are not publicly or politically active and live within a sphere separate from the social or political spheres. To be truly private, we remove ourselves from the political sphere or the social sphere, which make up the public sphere. To put it directly and as unambiguously as possible, you cannot be private in the public domain.
Technology, especially the internet, makes us public in two ways. One central, the other is secondary. The secondary way is that we use communication systems we do not control. We do not meet in the market place, we meet on an electronic platform controlled and supported by a government or a corporation. We are not walking to market to talk with our friends or fellow citizens about public business. To access the electronic platform we have to stop being private, even if only to the company or the government. To be social in the digital age is to be public as neither Facebook nor Twitter are not a private place no matter how many controls one uses. The company mediates your access and the use of the system.
The central way we are made public is that we public because we publish and broadcast more personal information about our families, our opinions and ourselves than any earlier age. An extreme view would be to argue, “If you are not on the Web, you are not a person.” The privacy problem, at its root, is that we have a false belief that we can be private in public. By that, I mean we treat the internet as a private domain even as we want it to act as a public domain or a public good. We believe that the web is like the physical public domain, but our access to it, unlike the physical public domain, is mediate by corporations or governments. What that means is that you cannot access the Web without a corporation or a government being involved.
In the digital domain, you do not have digital natural rights…yet
The NSA surveillance teaches us political lesson. We are learning about our rights and our understanding of those rights. We are being reminded of the pre-modern origins of our natural rights. The government’s power in the internet shows us the limits of the rights we take for granted. It also reminds us why we need, and ultimately want, a government to be on the internet and to use surveillance. What seems to be forgotten, in this brave new utopia of internet freedom, is the purpose for which a government is constituted. Moreover, we have no clear understanding of what it means to be a citizen in an age of global technology. Instead, the lure of the digital domain tempts one into believing that the physical domain no longer matters. These two broad questions will lead us to understand why democratic states need surveillance. Even a cursory glance shows us that despite the hyperbole of tyranny, the state has been extraordinarily limited in its use of its technological power. To that extent, the original political answers of the early modern era remain valid. The political theory of limited government has worked. The state has possessed the potential for tyranny but has resisted it. The government has been limited because of politics and not because of technological constraints. The state’s technological power to erode our rights should force us to reconsider the origins of our political rights in natural rights. We can then understand their fragility and the scale of the task facing us in the digital state of nature.
Our natural rights became a basis for our individual rights starting in the 13th century. The modern individual rights systems emerged with the belief that the individual had control or property in himself. However, our pursuit of individual “rights” has become so diluted that we talk of the “right to the internet”. In such rights talk we lose touch with our natural rights and what is naturally common. We start to lose touch with what makes us human in a mistaken belief that all individual appetites are rights worthy of the state’s time and resources to protect them. In that sense, with our demands for privacy, we sound like teenagers. Instead of shouting, “I want my MTV” we shout, “I want my privacy” or “I want my internet freedom.” Insisting on privacy or internet freedom will not create it. Internet freedom will not create a “new political order” where individual freedom will be achieved. All you can do is insist on laws that respect the intrinsic worth of the human person and that these laws are faithfully executed. To do that, citizens must take a role in monitoring the government’s laws. They must become public and participate in the public domain and not stay in the social or private domain. Yet, that requires the citizen to be educated to participate in politics. To do that, though, we have to begin to understand what it means to be human and we seem to believe technology allow us to ignore that question.
Technology will only destroy us if we forget who we are.
We face more than a technological challenge. Technology only reveals human nature. In revealing human nature, it reminds us of the politics associated with surveillance. Our political regimes have chosen to use surveillance. The choice was a political one, not a technological one. The men and women we elected acted on the belief that technological surveillance serves the common good. When people speak out about surveillance, their issue appears to be the extent of surveillance and not surveillance itself. The danger from surveillance is when the government refuses, or fails to obeys the laws upon which it is founded to protect the individual. In other words, when the state loses it political legitimacy is when surveillance becomes untenable. However, the state’s political legitimacy is not a function of technology. In that sense, Europe’s data protection regime’s vulnerability becomes an apparent threat while technological surveillance legitimised by the rule of law based on a constitution becomes less threatening. Technology does not determine whether the laws are executive faithfully. The political regime decides if the laws are to be executed. The state’s illegitimacy does not rest upon its technological choices, but upon its political choices. To understand what I mean by that statement consider a recent court case in the UK involving Mr Catt.
Mr Catt sued the police because his personal details were stored on a police database for political extremists. He had attended political rallies and demonstrations, which meant police using physical surveillance of these events had noticed him. Mr. Catt’s complaint and later court case for being kept on the National Domestic Extremism Database by the police succeeded. He had complained that his data was held on the list, with no way to know about it or to remove it, even though he posed no risk. In effect, he was indefinitely on their list. The police acted in accordance with the UK’s Data Protection Act, which can be considered one of the weakest in Europe. Even though the Police’s DPA guidance says that the DPA principles are to be followed, in particular principle 5, which covers how long personal data should be held, his data was held longer than appeared necessary. The police chose to either ignore the law, or saw their own organisational interests as the public interest. They may have decided that Mr. Catt posed a threat and thus it was necessary to retain his data. They may have simply seen their role in defending the public against extremists as higher than obeying the DPA.
Physical surveillance or digital surveillance, a distinction without a difference?
Mr. Catt’s case reveals the political, and not the technological, challenge of surveillance. The first challenge is within officers willing to view their organisational interest, in protecting the public, as higher than the public interest in seeing the DPA fulfilled. However, the officer may have been powerfulness to resist the demands of their superiors who explain that unlimited retention is necessary. The second is that the surveillance was physical rather than digital. The physical surveillance reflected a political decision to track “extremists.” The political choices within society and within the organisation meet. The organisation acted so that the public interest was served by disregarding the DPA, a law within the state. For this reason, we can see why the defence appealed to the European Convention of Human Rights (ECHR) because it offers a standard outside the state. What this case illustrates is how weak the law is because it relies upon men to uphold it.
Mr. Catt’s solicitors undoubtedly understood they could not appeal to a law created by the state but had to go to a higher authority. One could speculate whether the concern was also that the UK courts would be less willing to challenge the UK state on the DPA. For the courts to challenge the Police on the basis of the DPA, rather than the ECHR, was to attempt to argue within a political framework in which the legal question was settled.
In the case of Mr. Catt, the original surveillance and the systems for recording it were done with the knowledge of the DPA officer and within a DPA framework. By contrast, the GCHQ monitoring and the NSA monitoring, while connected to such a legal framework, exist outside of it to the extent that they deal with national security. Legality plays a secondary role when national security is the issue. If we discuss the legality of surveillance justified by national security, the focus misplaced. Legality although important, is a second order question. What we need the first order discussion of the relationship between the individual and the state? What is the purpose of surveillance in a democratic society? To put this as provocatively as I can, why are we doing this to ourselves? We have to ask and explore the question of the legitimacy of our government to act in this way. Until we ask and answer those first order questions, we cannot change our government nor can we change ourselves. What is clear is that the lack of understanding of the government and our relationship to it is at the root of our mistaken belief in privacy.
In the United States, the state has been justified in its surveillance. In the Catt case, we can see the state was unjustified in how it used its surveillance evidence. The difference is that the United States is on a war footing, to the extent that PL one sense, I am arguing the state is justified in what it has done with NSA. In the Catt case, I am arguing the state was not acting justly. What is the difference? The difference is that the US is at war footing to the extent that P.L. 107-40 (September 18, 2001); 115 Stat. 224 is in effect. Second, the NSA surveillance, based on this law, appears legal and constitutional. Moreover, Edward Snowden has not indicated the NSA was acting illegally. By contrast, in the Catt case, we can see the DPA was ignored or powerless to Act. The appeal to the European Convention on Human Rights (ECHR) was based on the unreasonable time on the list. The behaviour was unlawful. Yet what is common to both is neither case questions the surveillance. In both cases, the public interest outweighed the individual’s interest. Therein we see the real issue behind surveillance and why we have no privacy. The public interest in national security trumps the individual’s right to privacy.
 One could say that the whole constitution is designed to create a powerful government that is limited by a respect for individual rights. In that sense, it remains the great experiment in liberty. Will a government of the people, by the people, and for the people survive?
 I differentiate privacy from the legal frameworks that protect an individual from those acts that harm the individual such as disclosing confidential information. Such information is protected by contract or by laws. The concept of privacy offers no such contractual or legal framework. Even Europe does not have a strict right to privacy so much as a right to respect for a private and family life. The converse argument does not hold either that if the individual does not have a right to privacy that he is at the mercy of the state. Instead, it is to suggest that the basis for which an individual is to be defended is not to be found in a “right to privacy” but within the person, as person, which can only be understood in their relatedness rather than in their privacy.
 As Aristotle observed over 2500 years ago, we come together for life (security) we stay together for the good life.
 This is not to say Mr. Catt suffered any detriment or was inhibited from political activity. He objected to the fact that his information was held and he could not appeal against its indefinite retention on the police database even though he had never been convicted of a crime nor did he pose a threat to others or the state in any way.
 Readers are urged to consider the government, and in particular the NSA, have been acting on a warlike footing since at least 18 September 2001, when P.L. 107-40 (September 18, 2001); 115 Stat. 224 came into effect. As such, the United States has been embarked on a war unlike any other in its history and it is reaping the political cost of a republic trying to be at war abroad but acting as if it is at peace domestically.
- Lawmaker disappointed with Glass privacy (stuff.co.nz)
- U.S Government Surveillance: Bad for Democracy Around the World (theatlantic.com)
- EU views on the PRISM surveillance programme (libraryeuroparl.wordpress.com)
- Everybody Loves Data Protection (technewsworld.com)