Trust and Transparency in an Age of Surveillance

Lora Anne Viola, Paweł Laidler, Lora Anne Viola, Paweł Laidler

• Publisher: Routledge
• Year: 2021
• Print ISBN:
  9780367638160
• Edition: 1
• eBook ISBN:
  9781000488449
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Investigating the theoretical and empirical relationships between transparency and trust in the context of surveillance, this volume argues that neither transparency nor trust provides a simple and self-evident path for mitigating the negative political and social consequences of state surveillance practices.

Dominant in both the scholarly literature and public debate is the conviction that transparency can promote better-informed decisions, provide greater oversight, and restore trust damaged by the secrecy of surveillance. The contributions to this volume challenge this conventional wisdom by considering how relations of trust and policies of transparency are modulated by underlying power asymmetries, sociohistorical legacies, economic structures, and institutional constraints. They study trust and transparency as embedded in specific sociopolitical contexts to show how, under certain conditions, transparency can become a tool of social control that erodes trust, while mistrust—rather than trust—can sometimes offer the most promising approach to safeguarding rights and freedom in an age of surveillance.

The first book addressing the interrelationship of trust, transparency, and surveillance practices, this volume will be of interest to scholars and students of surveillance studies as well as appeal to an interdisciplinary audience given the contributions from political science, sociology, philosophy, law, and civil society. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Part IRethinking transparency’s relationship to power and domination

DOI: 10.4324/9781003120827-3

Chapter 2The limits of transparency as a tool for regulating surveillanceA comparative study of the United States, United Kingdom, and Germany

Lora Anne Viola

DOI: 10.4324/9781003120827-4

Introduction

In an interview with The Guardian, Edward Snowden explained that his disclosure of the massive scale of government surveillance was motivated by the conviction that greater transparency was necessary in order for citizens to properly hold government to account. Snowden was clear that “harming people isn’t my goal. Transparency is” (Greenwald 2013). Since Snowden’s revelations, greater government transparency has been touted as the only way to restore the trust so damaged by the secrecy of surveillance and the potential abuse that secrecy makes possible (see, e.g., Schneier 2013, 2015). Indeed, along with “privacy,” “transparency” has become a mobilizing idea for resisting or overcoming the negative consequences of surveillance. While the extent to which privacy should be protected and the best means for doing so are intensely debated, the idea of transparency is invoked almost reflexively in a positive way in the public sphere, with little debate about how much transparency we need and what, exactly, we expect transparency to do to the politics of surveillance. However, a critical discussion of how and under what conditions transparency can temper the harms of surveillance seems necessary in light of the fact that Snowden’s public revelations appear to have normalized rather than curtailed state surveillance practices.

Beginning in early June 2013, Snowden’s leaks exposed the means and extent by which the United States National Security Agency (NSA) engaged in bulk data collection. Beyond the United States, the leaked documents also implicated the United Kingdom (UK), especially via the British Government Communications Headquarters (GCHQ), and Germany, via the Bundesnachrichtendienst (BND), in mass surveillance practices. The revelations generated heated debates in all three countries and led to calls for reform and regulation of surveillance practices; specifically, reformers focused on ending or curbing bulk data collection and providing oversight mechanisms for surveillance activities. In all three countries, review committees and commissions were established and regulatory legislation followed. Indeed, the democratic process that Snowden had hoped for seemed to be underway: investigations produced public information about secret programs that in turn led to outrage, debate, and legislative reform with the intent to regulate and prevent abuses. Seen in another light, however, the United States, UK, and German cases present proponents of transparency with a puzzle. Neither the initial revelations nor the subsequent publicity of the extent of government surveillance practices led to rigorous limitations on surveillance in any of the three countries. In fact, the public debates around the surveillance practices, the outcomes of parliamentary investigations, and the subsequent policy changes had the effect of politically legitimizing, partly legalizing, and even extending surveillance practices. What is more, this was not only the likely effect but also the likely intention of some policymakers who saw the revelations as an opportunity to enable rather than to regulate surveillance. In these cases, it would seem, transparency had effects opposite to those anticipated by advocates. This chapter seeks to explain why this was so by thinking about the mechanisms and conditions that enable or limit transparency’s regulatory effects. Given the hope placed in transparency, it is crucial to ask whether, when, and to what extent public revelations about surveillance practices yield effective regulatory regimes.

Transparency is always embedded in expectations about what it can do or enable. I begin by identifying the various arguments that underpin dominant claims about transparency’s beneficial effects while critiquing the assumptions that underlie these claims in order to underscore the fragility and contingency of transparency. I argue that naturalistic approaches to transparency miss the ways in which its effects are linked to relations of power and embedded in socio-strategic contexts. Ultimately, transparency is not a coherent norm or practice, and so on its own it is inept at achieving sustainable regulatory outcomes (Pozen 2020). Second, I work out three alternative effects that transparency can have when we allow that transparency is subject to the politics of power: the condoning effect, the ratcheting effect, and the circling the wagons effect. By identifying alternative mechanisms through which transparency works, we can better understand its ambivalent nature. Third, I consider how disclosures about government surveillance practices affected surveillance legislation in three countries—the United States, Germany, and the UK. Snowden’s revelations have forced governments around the world to respond to public outrage over mass surveillance, but I argue that these cases illustrate the “transparency trap”—the ways in which the apparent revelation of previously secret surveillance practices can lead to their legitimation, and even extension, rather than limitation. When transparency is focused on the revelation of information, the incentives can become counterproductive to regulatory goals. Transparency on its own is insufficient, and calls for greater transparency can be nominally followed while substantively backfiring. Following recent arguments from the emerging critical transparency literature, I suggest that a more productive approach to transparency in the context of surveillance is to understand it not as the disclosure of information but as an ongoing sociological and communicative practice whose effects are contingent on the social, strategic, and power contexts in which it operates (see Pozen 2020; Koivitso 2019; Fischer 2019; Alloa 2018; Alloa and Thomä 2018; McCarthy and Fluck 2017).

The logics of transparency: a critical reconsideration

In contrast to surveillance, transparency has a strongly positive normative connotation as a means of preserving democracy, facilitating cooperation, preventing abuse of power, and promoting trust (e.g., see the critical discussion in Bianchi 2013; Peters 2013; Hood 2006). Transparency is often invoked as an inherent good and a self-evident remedy for countering government abuses by enhancing democratic deliberation and enabling government accountability. But to assess these promises and potential pitfalls of transparency, we first have to understand how and under what conditions it can have such effects. By what mechanisms do claims about transparency’s beneficial effects work? How robust are these claims? Untangling the various logics—the chain of mechanisms that are presumed to lead to outcomes—upon which the claims of transparency’s effectiveness rest can help to understand when, under what circumstances, and to what extent transparency can be regulative of surveillance. From prevailing arguments, we can identify several distinct logics of transparency based on its presumed normative and functional benefits. I outline these here and question the assumptions about information, effectiveness, and trust upon which common arguments about the good of transparency rest.

Transparency as an inherent normative good

In the first place, transparency is often endorsed on the basis of its presumed normative merits (Carson 2010); that is, on the basis of a logic of appropriateness (March and Olsen 2011). In this usage, transparency is a good in itself because it is right and appropriate and it appears to correspond with other values we hold, such as truth-telling. This approach draws on a deep-seated cultural idea about the correlation between secrecy and lying on the one hand, and between openness and honesty on the other hand, with the former coded as bad and the latter as desirable (Carson 2010). Honesty and transparency, however, are not identical. Honesty is based on the prohibition against telling lies, and thus it is a negative rule that instructs us in what not to do. Transparency, in contrast, is a positive imperative that instructs us not only not to hide but also to be candid and to be willing to reveal information. This positive imperative seriously complicates the normative value of transparency in the absence of normative rules that adjudicate when there is harm or benefit in revelation. Moreover, such a normative justification would have to take into account the empirical difficulty of identifying “true” transparency—the conditions under which we can be assured that we have been transparent. This requires some judgment about what information is important to reveal in the first place and some way of ascertaining whether true transparency has been achieved. In other words, transparency can only take on meaning in an intersubjective context that is itself subject to negotiation and renegotiation. For these reasons alone, we should be skeptical that transparency can carry the burden of being an inherently positive normative value.

Transparency as information: a condition for democratic decision-making

More often, though, transparency is acclaimed on the grounds of its functional benefits and, in particular, for the functional role it plays in supporting democratic values and procedures. Rather than a logic of appropriateness, the virtues of transparency are in this approach based on a logic of consequences (March and Olsen 2011). We can identify at least two distinct consequentialist arguments. The first sees transparency as a condition that facilitates participation and choice via information sharing (transparency-as-information). Transparency here is related to a liberal understanding of democracy as rooted in popular participation, one that emphasizes transparency as necessary for choice. Democracies are expected to be open about decisions, to include the public in deliberation, and to seek the public’s consent. In order for the public to effectively participate in political decision-making, it requires publicly available information about government activities, goals, and procedures. The importance of transparency-as-information for democratic decision-making is defended on two distinct grounds: its efficiency-enhancing effects and its legitimacy-enhancing effects.

In the view of classical liberal thinkers such as Locke, Mill, Rousseau, or Bentham, transparency enhances the efficiency or effectiveness or, in Bentham’s terms, utility of democracy (see the discussion in Fenster 2006). Transparency is valued as pro-democratic because it allows citizens to make better choices and more informed decisions about which policies to support. Fung argues that “information should be publicly available in proportion to the extent to which that information enables citizens to protect their vital interests” (Fung 2013, 202). Transparency, in this account, means the disclosure of information that provides the public with clarity about the actions of government and provides the conditions to influence government priorities and steer policy outcomes in response to the public’s needs and preferences. It serves as a prerequisite for informed consent and, therefore, popular sovereignty (Dahl 1971; Hollyer et al. 2011).

A more critical version of this argument sees transparency-as-information not in terms of its efficiency-enhancing effects but in terms of what we might call its legitimacy-enhancing effects on decision-making. Transparency, in this view, is important because the disclosure and publicity of information contributes to communication and rational deliberation, which, in turn, are crucial to successful participatory democracy. Information forms the foundation for argumentation and common meaning-making. Habermas’s idea of deliberative democracy, for example, rests on the principle of transparency as a prerequisite for rational, critical public debate and communication in the public sphere (Habermas 1991, 208–209; Guttman and Thompson 1996, 100–101). In theory, transparent deliberation can create an environment in which ideas are rationally proposed and probed and questioned, tested and rejected or accepted. In the ideal case, prevailing views can change when confronted with evidence and arguments, truth can be revealed, and a voluntary consensus can be achieved. A similar position is taken by Rawls, who identifies publicity as necessary for a just society because it allows individuals to choose and agree on common principles (Rawls 1971, 16, 454, 1993, 35).

The transparency-as-information approach is problematic, however, insofar as it rests on a relatively naive assumption that the disclosure of information is a straightforward process and that transparency is indeed informative. This link between transparency and democratic decision-making assumes that information can be fully and comprehensively disclosed and that more information will get us closer to the accurate truth (Albu and Flyverbom 2016, 14). The assumption here is that the transmission of information is a mechanical process that does not require interpretation and cannot be manipulated. This stands in contrast to an understanding of information as always situated, that is only meaningful as it is processed, interpreted, and mediated (McCarthy and Fluck 2017). Information is subject to power, to instrumental use, to strategic interaction, and simply to social discourses, conventions, and practices. In this understanding, then, transparency cannot refer simply to t...

Table of contents

• Cover
• Half-Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• List of contributors
• Acknowledgments
• Introduction
• Part I Rethinking transparency’s relationship to power and domination
• Part II Transparency and trust as institutional constraints and critical praxis
• Part III Sources of trust and virtues of mistrust in an age of surveillance
• Outlook
• Index