Governments use surveillance to keep their citizens safe and protect the regime. In that work, the government has to intrude into the lives of its citizens mainly in the public domain, in the pursuit of public order and safety, and occasionally in their private domain, in the course of national security. It is in the latter, that citizens have the greatest fear. They fear that the state’s national security driven digital surveillance will limit their personal autonomy or freedom in the digital domain. The citizens wants to treat the digital domain and their activity there as a private domain. The main concern is that when government agencies monitor the web for breaches of the law or for threats against national security, it has overreacted. The government has exceeded its authority as provided by the citizen’s consent. In other words, the social contract in which the citizen consents to the legitimate laws and the government protects the citizens and the common good when it enforces those laws has been skewed. The citizen believes the state is too intrusive in proportion to the threats it faces because it constrains the citizen.
Is the encrypted individual trapped in a digital cocoon?
In response to the threat from the apparent imbalance in the digital domain, citizens and corporations use encryption. The citizen encrypts their files and communications to protect their digital autonomy. With encryption, the citizen can create a private space that a government or corporation cannot penetrate easily. If the government or the corporation want to overcome the encryption, they have to justify it. Although national security may constrain the citizen’s legal ability to limit the government’s power to monitor them or overcome their encryption, the government is still subject to the rule of law. In a liberal democracy, even national security has to be justified in some way before the law and the community. However, the encrypted individual or the encrypted communication challenges the government’s authority and the primacy of the law within the social contract. The individual acts directly against the government to hold them to account rather than relying on their representatives, the political process, or the legal process. In the past, the individual would have to seek legal redress or political redress against surveillance. In domestic politics, the government justified its authority and its sovereignty through the rule of law, which reflects its legitimate political authority. The government acted to support the law and national security and it was only in the legal or political domain where the citizen could seek redress. In the digital domain, the individual can act directly. They can limit the government’s power by their individual use of encryption.
Outside the state, outside the rule of law?
Outside the state’s territorial boundary, the limit of its sovereignty, the government does not rely on the rule of law in the same way. In the international arena, a government cannot appeal to agreed or accepted standard to determine whether their behaviour is just. The community has a limited say in how the state behaves on its behalf. The digital domain cuts across domestic and international and this is why encryption proves problematic for the government.
Sovereignty in the digital domain: individual or state?
In political terms, the digital domain makes it difficult for a government to exercise its sovereignty or authority effectively or proportionately. In the digital domain, the state’s ability to differentiate between friend and enemy is blurred in a way that it is not in the physical domain. In the digital domain, the encrypted user can appear to be a friend or an enemy and the government has to make greater efforts to authenticate them. Previously, in the physical domain, the difference between friend and enemy was clear. Moreover, the government’s ability to distinguish friend from enemy allowed it to act proportionately in the domestic political domain. For example, the government does not call out the army to deal with a burglary. By contrast, in the external realm, where threats can be catastrophic, the government has to take a relatively disproportionate response. For example, if a plane does not obey the legal commands of an air traffic controller, the government will send up military aircraft to intercept it. Until the threat can be assessed and the government can differentiate between friend and enemy, the government will have to take a disproportionate response. The line between the domestic realm, which is considered peaceful, and the external realm, which is considered dangerous and full of threats, is the limit of sovereignty. In other words, sovereignty is what a government exercises when it distinguishes friend from enemy. As the digital domain transcends sovereignty or the domestic or foreign distinction, it presents a particular challenge to the government. Sovereignty is a central tenet of the modern social contract that began with Hobbes, however, the digital domain challenges that sovereignty. In particular, the social contract, through Hobbes suggested that men would combine to create a commonwealth in which the sovereign, the Leviathan, would distinguish friend from enemy. The sovereign would take on that role to create a space of peace, inside the state, and protect its members from external threats. The individual would not have to worry about distinguishing between friend and enemy as the sovereign did that on their behalf.
When the law is blind, are you free?
I argue that encryption undermines liberalism. The state cannot enforce rights and sustain equality unless it can stop those who want to live beyond the reach of the law. As the law requires surveillance and encryption hinders that surveillance, the rule of law is weakened. The leviathan is blinded.