State surveillance may be a fact of modern life, but having 'nothing to hide' is not an excuse for apathy

State surveillance may be a fact of modern life, but having 'nothing to hide' is not an excuse for apathy

Summary: State surveillance is not new, but today fights against terrorism. Many are against government spying, while some are apathetic. But even if you believe you have 'nothing to hide,' your government may still think you do. And proving otherwise could be impossible.

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TOPICS: Privacy, Security
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(Image: Jonathan McIntosh/Flickr)

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.

Read this

ZDNet Great Debate: Do democracies really need to spy on their citizens?

In the wake of the PRISM debacle, David Gewirtz and Violet Blue debate the need for domestic surveillance.

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.

Topics: Privacy, Security

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8 comments
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  • The first role of government is to keep its citizens safe. Naively wrong.

    The first role of government is to perpetuate itself. The second role of government is to maintain control of it's citizenship. All else follows from those two pragmatic political doctrines.

    Sucks to be pragmatic. But it is the way the world "works" and it always will be.

    However, since Zack brought up the concept of personal freedom and since it is Sunday, I will opine the following. Personal freedom is only guaranteed by utilizing the strongest and greatest human emotion known. That emotion would be love, of course.
    kenosha77a
    • The first and only purpose of the state is to protect the ruling class.

      It is not the government; it is the state. States represent a particular ruling class. This has been true all throughout history. The government is the structure which is erected to carry out the purposes of the state. In our era, the ruling class of the advanced capitalist states is the finance capitalist class. It is a repressive, profoundly undemocratic class at its core which is parasitical in its relationship to society. It sucks the vitality out of business and labor. It does not create profit; rather it extracts value without any purposeful economic activity. It erects toll booths on every function of society. It is the enemy of mankind and hence the states which represents its interests are the most imperialistic, warlike, and hostile to the interests of other states, which usually represent the interests of industrial capitalists, landowners, and petty bourgeois elements.
      John Rintala
  • Perpetuate and Maintain Control...

    for what purpose?

    No, those aren't "purposes" for the existence of government, but part of its methodology. That said, "protection of the public" is IMHO less of a primary purpose than, say, "moderating and enforcing social contracts between people with conflicting freedoms", in which case governments do seek to actively harm some of the public (e.g. by enforcing jail sentences against murderers). Ideally, the harm that government does to some is outweighted by the good it does for all in its attempts to moderate conflicting freedoms. I personally fail to see how maintaining an overly-inclusive program of surveillance is consistent with such an ideal.
    hmmm,
  • Terrorism Is A Bogeyman

    Let's face it, all the wholesale intrusive surveillance conducted up to now did nothing to stop the Boston Marathon bombing, or the WTC attacks (both sets of them), or the Washington sniper, or the anthrax mailouts, or any of the rest of it. But the authorities are quick to jump on these as excuses for ratcheting up their intrusions, to prevent "the next one". Only it never does.

    Remember the purpose of terrorism: it is not to kill or maim you, but to put the fear of being killed or maimed into you. Agreeing to the encroachment of a police state is an admission that the terrorists have succeeded. The way to fight them is simple: refuse to be terrorized.
    ldo17
    • Re: the anthrax mailouts

      These.. incidents, left me wonder -- did anyone actually touch that anthrax? Anyone invected? Dead? Any evidence this ever happened?

      Or, could it be the cheapskate US Postal Service was actually better in preventing disaster and save people's lives than the overpriced military program? Something is not right here. Or all of it.
      danbi
      • Re: the anthrax mailouts

        Five killed, 17 others infected, according to Wikipedia: http://en.m.wikipedia.org/wiki/Anthrax_attacks
        ldo17
  • Ah, but who are the enemies?

    Not in the discussion: is the over use of snooping result in so much garbage that the important things are missed.

    In medicine, the rule is "When you hear hoofbeats, think Horses, not zebras" but in today's world, that is called profiling.

    So better to snoop in on grandmom's LOLCat emails to keep the civil liberties (!) spokesmen quiet about snooping in on the emails of those who are really dangerous...
    tioedong@...
  • I have nothing to hide . . . from those I trust.

    There's a saying going around the TWiT podcast, and in particular Security Now.

    "I have nothing to hide . . . from those I trust."

    Do I have something to hide from others?

    Yes. For example: My passwords. In the hands of untrustworthy people, my password can ruin my life. They could take over my accounts, steal my money, etc.

    Ideally, I should trust as few people as possible with that information. The less exposure the information has to other people, the less likely it is that it will fall into the wrong hands.

    The government is a large organization with lots of people and lots of moving parts - does it really make sense sensitive personal data available to such an organization?

    With great power comes great responsibility - for as much as power can be used, it can also be abused. Programs such as PRISM have positioned us a bit too close to an "instant dictatorship switch" in the wrong hands.

    "Governments by definition have to prioritize security and legality over morality and popularity."

    I can't say I agree. In particular, I can't say I agree that they have to prioritize anything over morality. Not even security and legality.

    Indeed - if they can't be moral, I don't think I can trust them to remain secure and legal.

    Dictators place security and legality well above any morality. Some of the worst crimes humanity has faced has come from rulers that value security and legality - but place no value on morality.
    CobraA1