Law in the Internet Society

Compromising our Right to Privacy

-- By HumzaD - 13 Dec 2015

The “security” and “nothing-to-hide” (NTH) arguments are persistent thorns in the side of privacy advocates. Both arguments attempt to persuade us that sacrificing our privacy is not problematic. Assuming that the loss of privacy entails the loss anonymity and thereby the loss of free speech, both arguments must persuade us that the loss of such freedom is justified by countervailing gains. It is easy to overcome both arguments if we establish that these countervailing benefits are nonexistent, but grappling with the potential sacrifice of our liberty is troublesome when the gains to be had include the preservation of other fundamental liberties.

I therefore contend that sacrificing our privacy for certain forms of mass surveillance can: (1) preserve the right to security through the prevention of crime vis-a-vis the security argument; and (2) preserve the right against false imprisonment through government accountability vis-a-vis NTH. Recognizing thereby that a decision to preserve privacy may be a decision to forego other rights, I conclude that we are stuck with a responsibility to engage in balancing acts that will curtail one liberty, to some extent, at the expense of another.

The Security Argument

Rather than engaging in some grand utilitarian calculation of whether unfreedom is safer than freedom writ large, I posit only the modest claim that stripping privacy in some situations does in fact have the potential to either lower violent crime rates or aid in the the retribution of justice against violent crime, thereby protecting a right to life and security (the source of which is discussed below).

The potential to prevent harm is first evident in the work of a company called Persistent Surveillance Systems, which solves crimes using aerial footage gathered from planes circling cities overhead. The military technology has successfully solved a slew of murders in Juarez and allegedly reduced Dayton’s crime rate by a third. As one would suspect, mere knowledge that Big Brother might be watching makes some criminals think twice. The company’s founder has worked with the ACLU on a privacy policy that seems to infringe only on the criminals’ rights to hide crime (footage is only used to see one-pixel blobs move from crime scene to hideout after the crime).

While the program does not practically seem to infringe upon liberties, it is prone to abuse, and it could lead to more intrusive measures that would prove more problematic to our privacy. But if we take seriously the right to security, this slippery slope argument against such a narrowly tailored program should not be enough to outweigh its potential to prevent tangible harm.

In another instance, surveillance of the police itself has shown that police brutalities are reduced when cops are forced to wear inescapable body cameras. In a clear violation of police privacy, the public plays God to the police conscience to inhibit offensive behavior.

And even when surveillance fails to prevent crime or terrorism, it can lead to the ex post apprehension of criminals. Both the Boston Marathon bombers and the 2005 London bombers were caught through review of CCTV footage. If punishment serves as a deterrent for future crime, this retribution also furthers the right to security.

The obvious objection at this point is that these case studies ignore much evidence that suggests that mass surveillance on a larger scale has no appreciable effect on crime. But there is also evidence indicating that it can. Moreover, though their conclusions contradict, data supporting and refuting the efficacy of surveillance in preventing crime both suggest that more draconian surveillance efforts would lead to greater crime preventions, since absolute surveillance would alleviate the problems of displacement. But analyzing these studies and making a normative statement about whether the loss of privacy leads to safer world writ large is beyond the scope of this paper.

What is instead significant is that these programs unequivocally show that mass surveillance that infringes on privacy does in fact have the ability to further the right to security to some extent. If the loss of privacy is the loss of liberty, existence of these gains demonstrably supports the notion that the choice between liberty and security is not always a false dichotomy

The Nothing to Hide Argument

Mass surveillance and intrusive collection of excess citizen data can also serve a potent tool to protect individual liberties in a world where the PATRIOT act passes the senate 98 to 1 after a terrorist attack. Individual liberties come under attack in the hysteria following such attacks, and the government’s ability to sift through mountains of data could prevent detention, abuse, and persecution of the wrong people, as was the case after 9/11.

With unbridled access to our information, the government would struggle to hide behind “known unknown” type arguments. After 9/11, over 700 men with names like mine were detained for behavior sometimes as trivial as having a roommate that developed photos of the WTC. In a world where the government knew everything about these men, the FBI would struggle to proceed with arguments appealing to the danger of letting the men go because of a lack of knowledge. They would also avoid reliance in the first place on intel as flimsy as the PENTTBOM leads.


Beyond an appeal to the natural right to security, the right to protection from violent crime is guaranteed by the Universal Declaration of Human Rights and its call for “security of person.” The right against illegal detention is a Constitutional guarantee. We therefore have a duty to do everything possible to guarantee these liberties up until the point that this guarantee infringes on other liberties, at which point we are forced to make some sort of value judgment about which is more appropriate to abridge.

In this sense, infringing on privacy is not necessarily the meaningless destruction of an untouchable liberty. Rather it is a necessary evil that we have a duty to contemplate if that infringement can in fact preserve other serious rights.

I don't understand the point of the draft. "Mass surveillance" isn't a matter of taking aerial photographs, or streaming overhead video. The argument in favor of A on the basis of the crime-preventing value of B isn't logically sound regardless of A, B, or the nature of the "crime-stopping" involved. Listening to all phone calls and text messages in a society, keeping lists of everyone everyone knows, mining all sources of data for predictive modeling of all citizens, may be supposed to prevent lots of crime. So what? The place where the argument here is weak is the only place that really matters: why does the ability to reduce future risks justify restriction of freedom in the first place, and how far?

Nor do I understand how collecting of secret information about people is supposed to prevent illegal detention. Habeas corpus proceedings have for 350 years been sufficient to prevent illegal detention in England and the United States, so long as the procedural availability of the remedy wasn't constricted. "We don't know enough to know whether this person is dangerous" is not a constitutional reason for any detention, so "you can't argue that you don't know enough to let him out because you know everything" isn't a meaningful line of constitutional attack, much less one that would be a sufficient reason to allow government to know everything.

I can't tell whether the logical failures in this draft, which are simple and fundamental, result from your not really believing what you are arguing, or from a failure to test your arguments against tough opposition. Either way, the route to improvement here is to establish either the arguments you really want to make, or the method by which you strengthen these existing arguments against the most effective and persistent foreseeable opposition.


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r4 - 14 Feb 2016 - 16:10:23 - EbenMoglen
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