Law in the Internet Society

Is privacy an inalienable right?

-- By MelissaTeh - 10 Jan 2020

I view privacy as an inalienable right. This means that privacy is not only an important right, but one which should not be compromised under any circumstances. Most importantly, I believe that the perceived net benefits cannot be used to justify infringement of one’s privacy for two reasons – one, because those net benefits do not actually exist or may be achieved through other non-malicious means, and two, because spying is in itself wrong, so the ends may not justify it in the first place.

A paradigm shift

This however, has not always been the way I thought about privacy. Rather, I had believed that privacy, though important, could be given up in the pursuit of other interests such as national security and social stability. In other words, I had accepted that Hobbesian’s social contract theory applied to privacy as well, and so individual privacy could be traded for other benefits.

The Edward Snowden fiasco was one of the big events that ignited a paradigm shift in my mind. Even though the spying did not result in any tangible harm like persecution, this incident raised the point that mass surveillance makes it possible to inflict uniform brutality onto average powerless and uninteresting individuals like myself.

Could spying be a good thing?

Even so, I wondered if this risk could be viewed as a calculated, reasonable one. Although spying makes us vulnerable to arbitrary abuse, one might think that spying still results in a net benefit for average individuals since stability and safety is a reward for the spying. Acts of terrorism for example, can be preempted and prevented by monitoring messages containing certain key words, affiliations with other suspected individuals, online and in store purchases of dangerous items and etcetera. Beyond security, spying arguably also increases convenience in the world we currently live in – customization of advertisements and applications for instance, make the lives of average people easier by tailoring users’ experience to their own unique needs.

Can the ends justify the means?

One obvious bias in the argument above is that the ends are being used to justify the means.

However, these supposed benefits are but a fašade since rewards like convenience only exist because we have bought into the system that we currently live in, where big corporations collect large amounts of data and provide us with bespoke services in turn.

Moreover, spying cannot be justified by its ends if the same benefits could be derived from other actions that are not immoral or unacceptable. Although it is difficult to conceive of another system where services can be equally convenient absent the constant spying and surveillance, to assume such systems cannot exist is a fallacy. In an alternate reality where big corporations did not provide these services, it is likely that adequate services can be provided by others who did not have the perverse incentive to spy on individuals, simply because there will always exist individuals who yearn to create better services. Convenience thus, is a concept that companies use to deceive its users that spying is acceptable and even good.

Furthermore, the net benefit argument is a slippery one because it can then be extended as a justification for other infringements. If “for the greater good” is always an allowable line of reasoning, then there may be no discernable end to individual sacrifice. Importantly, if we view privacy infringement as a wrong in itself, then the end result and benefits (if there are even any) cannot justify the means. This however, requires an analysis of why privacy is an inalienable right, making privacy infringement inherently wrong.

Analyzing the importance of privacy

On reflection, there might be several reasons for why privacy should be regarded by everyone as an inalienable right.

For one, privacy can be viewed as a fundamental constitutional and human right. Although not explicitly stated in the Bill of Rights, the Ninth Amendment leaves room for finding the existence of rights that are not explicitly stated.

Further, asymmetric distribution of information is inherently dangerous. In the world, information is power – large corporations and governments thus currently have a dangerously uneven upper hand. Whilst some might believe that the information collected is only being used for legitimate and good purposes – like to provide convenience, security etc. – the situation could radically change should these organizations want to. In other words, it is inherently risky that power is concentrated in these oligopolies. It is difficult to see the importance of privacy rights where these oligopolies are benevolent, but to believe that they will always be is hubris. Additionally, the way in which our privacy is being infringed also robs individuals of choice. Whilst corporations and the government provide services and security in exchange for data collection, there is no way for individuals to meaningfully opt out of this system unless they make radical changes to their lifestyle, which most people are not willing to do. As a result, individuals are forced into making this tradeoff, even if they do not meaningfully make the decision to do so. The cost of opt-out (if possible) is so high that it is almost impossible, resulting in the situation that we have now, where people have no choice but to be subjected to spying. As a coping mechanism for this learned helplessness, they then defend the system by psyching themselves into thinking that spying results in a net benefit for them.

Conclusion

In conclusion, the alleged benefits that arise from spying cannot be used to justify it. However, because of inertia, lack of information or some other reason, most of us do not fundamentally believe that the threat of mass surveillance will be unleashed onto us. On the bright side however, reflecting on this issue can make one (myself included) more skeptical about spying in general and more motivated to retain anonymous where possible.


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r3 - 10 Jan 2020 - 09:36:41 - MelissaTeh
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