I'll start with a confession.
Last week, when the venerable David Gewirtz and revered Violet Blue locked horns in the debate on privacy rights and domestic surveillance, I put my head over my heart by handing Gewirtz the final win on a point of technicality, despite my personal opinion erring against what felt like contrary to common sense.
State surveillance has in some form or another been a fact of life for centuries, and no more so than in the last few years. (And that's the optimistic view coming from someone desensitized to being watched by the state almost every minute of every day after living in Britain, one of the most surveillance-saturated states in the Western world, for the best part of two decades.)
As the debate moderator, it wasn't my role to take sides on the debate, per se. It was to judge based on the answers whether either had resolved the question presented to them. Both had outstanding arguments — in some areas, one did better than the other, and vice versa.
But what almost gave Blue the final victory was Gewirtz's comments — which I stated at the time as being "an immature, naive attitude to take" — on the initially simplistic view that he had "nothing to hide." This is not the first time such words have been uttered in an argument about state surveillance. He noted, however, that this was "not a valid argument."
From his response: "On the few occasions when the needs of the many outweigh the needs of the few (or the one), an entire judicial system of checks and balances comes into play to be sure that impinging on that right of privacy is necessary, justified, and without alternative."
I hammered out the closing response just minutes before my editor's deadline and moments before my flight began to board. After landing at Heathrow and hours after my verdict was published, a reader emailed, agreeing in part with my concluding sentiments. It took me the best part of a week to think of a reply:
"I don't think I have anything to hide, but what if I do and I don't know it yet?" the reader wrote.
The first role of government is to protect its citizens, not to guarantee privacy
One of the arguments used by those who believe that they have "nothing to hide" is that only criminals and terrorists desire privacy, mostly in part to avoid detection by the authorities.
Under this logic, knowing what we know now about the U.S.' dragnet surveillance programs, the U.S. government could consider everyone it comes across to be a suspected criminal or terrorist, because by virtue of being innocent until proven guilty, the burden of proof falls on the government to make its prosecuting case.
Privacy isn't necessarily about hiding something. Privacy is the right to private life away from being watched, and having our personal information and secrets intruded upon. And to hide something doesn't mean it has to be illicit or illegal. And because we as humans are not inherently transparent about every aspect of our lives to even our friends and family, let alone our governments, governments react against their citizens with an almost "natural" sense of suspicion and distrust.
One can empathize, albeit to a degree, with Western nations participating in the National Security Agency's (NSA) spying program. With modern communications and millions of gigabytes of data flowing through submarine cables daily, enough to fill the Library of Congress dozens of times over, it's little surprise that the state finds it unimaginably difficult to discover sufficient evidence to pin a crime to a person or group amid the noise of everything else.
The fact is that for governments nowadays, the threat landscape has changed so much that most states have no idea how to protect their citizens. Above all else, it needs the legal justification to do what it believes is right to protect its citizens.
The case for state surveillance
Modern democracies, like the U.K. or the U.S., spend vast sums focusing all but entirely on protecting their soil, citizens, and embassies abroad from terrorists.
"Rogue" states still intend to cause Western democracies harm, and the rare superpowers, such as Russia, remain "frenemies" of the West. At home, citizens are still trying to kill each other over land, money, greed, or any other reason for that matter, adding yet another headache for so-called civilized states.
Compared to 50 or 60 years ago (the occasional conflict like the Falklands or the first Gulf War notwithstanding), the world has been relatively quiet since the fall of fascism.
Western militaries today are mostly standby units, relegated to peace missions and maintaining a level of consistency in places where their governments have stormed in previously for the sake of regional peace and diplomacy. It's a far cry away from 60 years ago, when the military was solely to respond to attacks against other countries and empires.
The primary defensive and offensive unit of a state is no longer as necessary as it once was. The rise of the need for intelligence and knowledge during global peacetime has replaced the need to jump on the automatic offensive.
For as long as recent history can remember, states and governments have had secret services, spies, and intelligence gathering tools. Whether we sent a trained spy into a foreign, hostile nation to acquire documents from a source on the ground, or we tapped into a telegraph cable to listen in to a call by a known mobster, spying has been a modern defensive method by states — friendly and otherwise — to protect economic and political national interests from harm. After all, governments can better protect their citizens if they know in advance and have time to plan against a foreign attack, intervention, or diplomatic discussion.
Nowadays, the greatest threat to domestic homelands is terrorism from non-state actors. From suicide bombings to mass shootings, there is no longer a chivalry to war. Gone are the days when fighting would cease at sunset, and to a degree war would be "fair." Today, undrawn lines of battle are dirty, unmanaged, and unexpected. The uncertainty of when an attack strikes is what causes the greatest fear.
Surveillance is used to prevent these crimes against humanity before they happen. This almost always leads to the question: On what level and how deep should the surveillance go?
The balance between privacy and protection remains a delicate dance that only politicians and lawmakers can solve. But as computing evolved and telecoms became universal, developed Western nations found it increasingly difficult to monitor activities from states and citizens post-World War II, which still threatened the delicate peacetime across Europe and Asia.
Because only five or 10 years earlier — let alone back in 1978, when the U.S.' main wiretapping and intelligence gathering machinery entered law — it was impossible to determine what the West would face as its primary threats to national and homeland security.
Nobody could have predicted how crime would have changed, let alone the scope of state-sponsored to faction-based terrorism, the one remaining misunderstood, unpredictable wildcard that can lead to invasions, wars, and the toppling of governments at home and abroad.
Over time, a set of physical fingerprints from a crime scene became digital needles in a haystack, and the technology used to plan acts of terror changed. The laws were ineffective and required changes and modifications to bring preventative law enforcement into the new modern age.
The legal justification and self rubber-stamping authority by governments was matched by similar acts of terrorists, often under their own religious authority. The same can be seen in other laws that overreach the mark in which they were intended, such as allowing the U.S. government wide-ranging rights to conduct foreign drone strikes and indefinite detentions under the National Defense Authorization Act (NDAA), for instance.
In spite of extensive contingency planning, governments can only guess what might come next. Regardless, the legal authority must be there to enact a response where a military would once have taken the brunt of the action.
The case against having "nothing to hide"
We need both domestic surveillance and citizen privacy. Where the balance lies exactly is what the public should be informed of once our congresspeople and parliamentarians hammer it out.
Privacy is a two-way process. Citizens have a right to free expression versus the right to not have that expression invaded or exploited. Though because the nature of surveillance is secret, it's even more important that the information collected is not abused or incorrectly used.
While the government likely doesn't care about your sexual fetishes, the state of your bank balance, or your web searches for "how to grow a pot plant at home," the fact is that we don't know whether it does, let alone if the information gathered — which we can presume it is — is being used in some way against us either now or in the future.
Even if you have nothing to hide, the freedoms afforded to us under an open and democratic society are slowly chipped away by the restrictions we impose on ourselves by failing to freely engage with others over issues that we feel matter the most.
Surveillance can change how we act, who we interact with, what we do, and where we go — things that we take for granted in a free and open society.
Knowing that we are being watched may change our movements and alter our footsteps. For fear of being watched and having unidentified amounts of information being collected on us, we may not visit our friends or associates as often as we would have, or maybe we avoid that peaceful protest we feel passionately about.
And there will be and regularly are times when we knowingly go to great lengths to conduct our business in a clandestine fashion, such as taking to the streets in protest, widely seen as a shining example to Westerners' fundamental freedoms of speech to visually and vocally complain about a policy or a decision made by our governments.
Yet, in openly and publicly putting yourself in the path of the authority you are protesting against, despite free speech and expression protections, many do not for fear — whether founded or otherwise — of the very establishment that they ultimately pay to protect them from threats at home and abroad.
Despite our best individual efforts, we do not always keep on the right side of the law. From delays in submitting our tax returns to going over the speed limit, over time, the concatenated stream of information collected on us could be enough to put most individuals away for a cumulative 100 years. For low-level misdemeanors, the government probably does not care. Even though we know that the U.S. and other governments have the potential and capability — based on what we know from recent reporting on the spying scandal — there is still a risk that this can be drawn up and used against us in the future.
Societies of open and free speech and expression can quickly become inhibited by secret state surveillance under the threat that our governments, charged with our protection and paid for by the citizen, misidentifies an innocent as one set on causing carnage and dissent based on a secret interpretation of already vague and ambiguous laws.
Surveillance will be used by states and governments if they have the capability at their disposal. It informs political decisions and prevents harm to citizens. But spying machines do not necessarily seek out what you know, but who you know. You may have nothing to hide, but someone else connected to you may do. And by that logic alone, a government may think you know something, when in fact you know nothing.
The first role of government is to keep its citizens safe. You may have "nothing to hide" when the government is safely out of sight in its offices in the capitol. But if for one second your government thinks you are in some way suspect, having "nothing to hide" simply will not protect you.
The bottom line is that while before, in wartime, it was fascism, today, in peacetime, terrorism threatens the fundamental freedoms that keep the fabric of Western society together.
Surveillance, when done properly, is an invasive but unknown force for protecting a state or a nation — whether we like it or not. Governments by definition have to prioritize security and legality over morality and popularity.