National Security, Personal Privacy and the Law

Surveying Electronic Surveillance and Data Acquisition

Sybil Sharpe

• Publisher: Routledge
• Year: 2019
• eBook ISBN:
  9780429670787
• Topic: Diritto
• Subtopic: Diritto amministrativo

There have been significant changes in public attitudes towards surveillance in the last few years as a consequence of the Snowden disclosures and the Cambridge Analytica scandal. This book re-evaluates competing arguments between national security and personal privacy. The increased assimilation between the investigatory powers of the intelligence services and the police and revelations of unauthorised surveillance have resulted in increased demands for transparency in information gathering and for greater control of personal data. Recent legal reforms have attempted to limit the risks to freedom of association and expression associated with electronic surveillance. This book looks at the background to recent reforms and explains how courts and the legislature are attempting to effect a balance between security and personal liberty within a social contract. It asks what drives public concern when other aspects seem to be less contentious. In view of our apparent willingness to post on social media and engage in online commerce, it considers if we are truly consenting to a loss of privacy and how this reconciles with concerns about state surveillance.

1 Introduction

Privacy is an amorphous concept. It can mean different things to different people depending on cultural context and private expectations. It can be argued (in line with research about consent to the disclosure of individualised data)¹ that whatever its scope, it is essentially a negative liberty, i.e. the right not to be coerced by state regulation into revealing personal details, rather than a positive liberty, which is the freedom to make autonomous decisions about one’s personal conduct. The two concepts of liberty were described by the philosopher Isaiah Berlin. In Four Essays on Liberty ² he distinguished political (negative) liberty as ‘an area within which a man can act unobstructed by others’ as opposed to the ‘mere incapacity to attain a goal’. The nature of a right of privacy (in whatever its forms) is the right to be free from observation in the disclosure of one’s opinions, thoughts, acquaintances and actions. Disclosure may be to state officials or (nowadays) commercial enterprises assisting the state. The fact of disclosure might be known to us, or it might not. There may be an element of choice in the disclosure, or there might not. The vexing issue of what exactly is consented to, is discussed later in this work. In today’s society, it is almost impossible to function without using the telephone, the internet or without having our name placed on a government database. Thus, we are hardly free to make an independent decision not to expose ourselves to surveillance. Autonomous choice about how we lead our lives is, in this regard, illusory. Information gleaned might involve very personal data such as health records or it might simply amount to a name on an electoral list.

What follows is a survey of surveillance and an assessment of the extent to which the liberty known as privacy is still protected and is still justified in the 21^st century. As a starting point, it is helpful to attempt an overview of the situations in which the law has imposed limitations or safeguards on the acquisition of personal or private information.

The right for one’s behaviour not to be observed whilst occupying a private as opposed to a public space

This seems to be of ancient origin as evidenced by a rather obscure passage in the Babylonian Talmud³ which states that a dwelling should not be constructed so that there is a window or aperture allowing direct view into your neighbour’s dwelling. The rejection of general warrants in England⁴ and the prohibition on unreasonable searches and seizures contained in the Fourth Amendment of the American Constitution extend the concept of occupational privacy by insisting that there is a reasonable basis to suspect that a crime has occurred prior to entry by law enforcers. Baseless searches are illegal. Further, the intrusion into the suspect’s private property must be judicially authorised unless consent, or the fact that the suspect has already been arrested, make an application for a warrant unnecessary.⁵ The installation of a listening device or a hidden camera in premises or vehicles (bugging) is, necessarily, a more recent development and the intrusion is regarded as greater in respect of private property than if the surveillance takes place in a public area. There is an ideological connection between privacy and trespass in these circumstances.⁶ There is an overlap with eavesdropping, but the method used to obtain the information necessarily depends on placing the spying device in physical proximity to the suspect.

The right not to have your conversations eavesdropped upon

The term ‘eavesdropping’ itself emanates from the practice of covertly listening to conversations whilst standing under the eaves of a house. The Oxford English Dictionary cites an early English reference to the practice from Richard Pynson’s ‘Modus Tenedi Curiam Baronis’⁷ in which it is written ‘Euesdroppers under mennes walles or wyndowes … to bere tales’. Henry VIII decided to demonstrate the maxim that ‘walls have ears’ by installing carved figures under the eaves of Hampton Court. Spying is hardly a modern concept. It is the methodology that has changed. Whereas listening into private conversations would require a physical presence, the usage of telephone interception, equipment interference and data acquisition has rendered this unnecessary. Remote surveillance has arguably led to a shift toward an emphasis on the detection of inchoate organised criminality and on planned, but not yet executed, terrorism. Ex post facto investigation is, arguably, a methodology for lower level crime or the outcome of a failed prediction of future offending.

The right ‘not to be known about’

This is rather harder to define and even harder to sustain in today’s globalised, technologically enabled society. It is, in fact, the most contentious of the state powers of surveillance and seems to be contentious not because of the level of intrusiveness, but because of the breadth of the search and the trawling exercise that it entails.⁸ The individual wishing to function in today’s society may well wish not to be known about, but the reality is that any internet activity, any mobile telephone call made and any commercial or government database record held on a person can be accessed to provide information about his or her location, life preferences, interests, health and travel plans.⁹ Internet privacy statements are so convoluted and so lengthy that they are not read, let alone understood. Further, there is little real choice when the website cannot be utilised unless the terms are agreed by the internet user. There may not even be an awareness of the sharing of personal data and hence not even a pretence at consent.¹⁰

In the 20^th century, subsequent to the Universal Declaration of Human Rights in 1948, a plethora of international conventions and charters proclaiming protections for individuals against state infringement of freedoms were adopted. This has led to a tendency to view issues of privacy and the possible consequential impact on free speech only in terms of human rights.¹¹ The question for courts has been whether there has been a violation of the right to a private life or a curb on the right to freedom of expression as a consequence of an act of surveillance in situations where that surveillance is targeted (aimed at a particular person or group of persons) and also where it involves the bulk acquisition of data. The conventions and statutes creating these rights will be discussed later in this work but for now, it is worth noting that there is an even more fundamental issue at stake.

The European Group on Ethics in Science and New Technologies produced a report¹² acknowledging that there is a deeper philosophical question to be debated about the sort of society we wish to live in. How far do we delegate unquestioningly the security of the population to the state? Does the need for national security justify the loss of privacy? What is the nature of a modern social contract? There are older models that may or may not be relevant today.

The traditional starting point is Plato’s Crito. Crito attempts to persuade Socrates to flee the death penalty imposed upon him by the Athenian state. The reply of Socrates, which today sounds woefully submissive, is that he owes obedience to the state (despite the wrongness of the verdict upon him). It legitimated his birth, and established the laws that governed his upbringing. Therefore, a citizen ‘must do what his city or country order of him’. Socrates viewed the ‘covenants and agreements’ made with the state as voluntary and argued that he was ‘at liberty to leave the city’ at any time should those covenants appear to be unfair. This is a patently inapplicable view of the modern democratic state. In The Republic,¹³ Plato has Glaucon arguing that the laws and covenants are made as a compromise against injustice, as a lesser evil than allowing the extremes of human behaviour free rein. Thus, a citizen accepts the covenants out of necessity. This may more nearly approach the Hobbesian version of the nature of the contract between citizen and state. In Leviathan¹⁴ Hobbes wrote

But as men, for the attaining of peace and conservation of themselves thereby, they have made an artificial man, which we may call a commonwealth; so also have they made artificial chains, called civil laws … These bonds in their own nature but weak, may nevertheless be made to hold, by the danger, though not the difficulty in breaking them.

Hobbes’ main concern was the protection the state afforded the citizen from social anarchy, which he believed would result in criminal mayhem and in the ‘continual fear and danger of violent death’. ‘The end of obedience is protection’ and according to Hobbes, we no longer owe any obligation as subjects if the sovereign power is no longer able to offer this security. The idea that we consent to the state holding powers which curtail our freedoms but which provide for our greater protection is just as valid today. Whilst Hobbes has often been mocked for his rather harsh view of human nature and his oft quoted statement that the life of man is ‘solitary, poor, nasty, brutish and short,’¹⁵ there is a resonance with the idea that in order to provide security for citizens, powers have to be conceded to intelligence services and to the police even though those powers exceed what would be acceptable in an ‘unthreatened’ society.¹⁶

The philosopher, David Hume, was fairly sceptical of theorists who argued that there was ‘a voluntary acquiescence of the people’ based on a ‘conditional’ promise of protection from a government.¹⁷ The reality, according to Hume was that all governments were initially founded by usurpation or conquest and that the subsequent acceptance of state administration by the people was a matter of obligation, not of choice.¹⁸ In an observation that is still logically sound, he wrote

The truest tacit consent of this kind that is ever observed is when a foreigner settles in any country and is beforehand acquainted with the … government and laws, to which he must submit.¹⁹

Though adopted allegiance was more voluntary than an allegiance based on birth, Hume accepted that the rule of law was necessary as society ‘could not otherwise subsist’²⁰ and in this respect he followed Hobbes since both men considered that human nature was ‘selfish’ and that citizens needed protection from one another. The justification for state control, based on giving subjects physical security has a long lineage.

The most well-known exposition of the social contract is, of course, that of Jean-Jacques Rousseau. According to Rousseau, th...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword
• 1. Introduction
• 2. Search and surveillance: the terrorist threat
• 3. Surveillance outed
• 4. Finding an equilibrium
• 5. Surveying surveillance
• 6. Privacy in an age of global surveillance
• Index