Louis D. Brandeis and Samuel D. Warren were right when they argued in 1890 that “the right to be let alone…secures the exercise of extensive civil privileges.” That ownership of being, secured by legal protections, remains one of the most powerful features of any state which regards personal liberties as sacrosanct. It ensures spatial protection. It enables identity, however peculiar, to flourish.
Unfortunately, the hollowing out of the state’s activities, the interlinking with the corporate sector, and the privatisation of security services, has made an assault on such concepts as privacy relentless.
Technology has made sifting bureaucrats indifferent, executing state directives with a degree of moral flabbiness. U.S. President Barack Obama takes the standard line that the Peeping Toms of security are gathering information on subjects responsibly, without a sense of villainy. “They are not looking at people’s names, and they’re not looking for content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.”
The paradox at one end is that officials can gather information (in Australia, without a formalised warrant system) in the hope of mining those “folks” who engage in things naughty against the state, but who are also bound by covenants of secrecy. Violations of privacy are complemented by undertakings to keep mum. The state’s withering of the body of liberties takes place unabated, concealed by an edifice of stifling silence.
The secrecy extends to the entire conduct of the dispute resolution process in which employees might find themselves when contesting a claim with the public service. This can be seen by employees of the Australian Public Service, to take one acute example, which insists on gagging clauses in any settlement offers that might not need to go to court. Such deeds of release, as they are termed, can serve a primary purpose: to conceal forms of management, or systematic mismanagement, within an agency. They can be used, therefore, to cut the oxygen off from the whistleblowing process.
In the United States, it is fitting that some efforts are being made to combat programs which have seen the relentless accumulation of information under the auspices of protection. Their aspiring rationale is that the more data we have on you, the safer we make you. The phone records program is a particular nasty in this regard, maintained by an unduly broad reading of the Patriot Act. There is no need on the part of government to show probable cause that the particular individual might be engaged in terrorist activities.
The American Civil Liberties Union has made the plausible case against such latitudinal reasoning, filing a lawsuit arguing that metadata, when suitably sifted, can reveal the private dispositions of the users as standard eavesdropping activities. “Each time a resident of the United States makes a phone call, the NSA records whom she called, when the call was placed and how long the conversation lasted.” The agency tracks “when she called the doctor, and which doctor she called; which family members she called, and which she didn’t.”
Much of this lies in the problems of expectations. It is incumbent on the part of elected officials and members of the public to foster the necessity of respecting privacy. To that end, attitudes such as Justice Harry Blackmun from 1979 must be deemed archaic, views doubting whether “people in general entertain any actual expectation of privacy in the numbers they dial.”
Such ills also find themselves manifest in the private sector, with entities such as Facebook prove indifferent to the way information is transferred or sought by government services. As Edward Snowden’s disclosures show, such companies tend to share the same pillow with their government counterparts. Governments seek information; companies dealing with an extensive base of users pass them on. Subscribers are none the wiser at the fact that they the surveillance voyeurs are in charge.
Last week, it was revealed that the social-networking monster had received requests for information from the agents of 74 countries on 38,000 users, with half of them coming from the United States. Mind you, Colin Stretch, Facebook’s general counsel, puts up a brave front in response to such queries. “We fight many of these requests, pushing back when we find legal deficiencies and narrowing the scope of overly broad or vague requests.”
Such a response is hardly sufficient. The companies want to stay in business. It is axiomatic that, in order to do so, they may have to relent more than they might wish. Security interests, however vague, prevail. The movement against broad based intrusions must involve a concerted effort of law that will police the interception of material and monitor access to the private data bases of users by “third parties.” The global movement against surveillance, orchestrated by such parties as the WikiLeaks Party in Australia, must roar with confidence. Dystopia must be rolled back.