The Vitreous Human Being — Nothing to Hide and Nothing to Fear?
At least since the revelations of Edward Snowden, it has become clear to everyone that the US government has been engaging in extensive surveillance and data mining for quite some time. The National Security Administration (NSA) has been wiretapping calls and monitoring online communication globally, without warrant or concrete suspicion. Naturally, the discovery of this ubiquitous surveillance system has led to widespread outrage and a virulent discussion about the role of surveillance and privacy in today’s digitalized society. However, not everyone seems concerned: An often-forwarded argument in this context claims that surveillance is only problematic for those engaging in criminal activities, for those with a reason to hide something. If you are planning unlawful activities, you do not have any justification to claim that these plans remain private. By contrast, if you have nothing to hide, then you have nothing to be ashamed of, and therefore nothing to fear.
In this essay, I argue that this argument that people should not worry about surveillance if they have nothing to hide is too simplistic and based on an incomplete understanding of what privacy means in today’s society. To support my statement, I will first discuss why the examined argument is so appealing. Then, I will examine the premise on which it is built and concentrate on the definitions of surveillance and privacy it rests on. I will then elaborate on a broader understanding of surveillance and privacy to show the problems inherent to simplistic conceptions of privacy and surveillance.
A small price to pay for security
The surveillance of a population by the US government is not a new phenomenon. According to Alfred McCoy, already during the occupation of the Philippines in 1898, the US government created a sophisticated surveillance apparatus in order to control the occupied population and enforce US-interests. Of course, during the years and wars that followed, it had many opportunities to develop its surveillance methods further, and was able to bring these tools home to secure the US from perceived inner threats emanating for example from German Americans during World War Two, or, most recently, from Islamic terrorists.
The NSA regularly uses the argument that regular, well-meaning people have nothing to fear from surveillance. Indeed, it is very compelling: The NSA is listening to calls and collecting and analyzing data with a very specific goal in mind — to catch terrorists and therefore to guarantee the security of the whole population. The same logic is used by the police force, when using tools such as Geofeedia to monitor social media communication in order to prevent crime. There is something reassuring about knowing that there are people with good intentions who want to make the world a safer place and to protect our lives. And the price to pay for this security seems small. We provide access to our communication to disinterested, impartial machines who use neutral algorithms instead of biased (human) judgment to filter the information for the relevant parts.
Essentially, the discussion around surveillance seems to concern the balancing of the right to privacy against the right to security, the right to life. After all, you would not be able to enjoy the right to privacy if you lost your life, would you? Law-abiding citizens, so the argument goes, profit from surveillance by having less crime and ultimately more freedom. Through the enhancement of security, so the argument, the good guys are protected in their freedom from the bad guys. Only those with nasty skeletons in their closets have to worry. It seems to be an acceptable trade-off and countless repetition by politicians and law enforcement dulls the last possible unease that might arise. However, as the argument is so often used, it seems important to take a closer look at its structure, its underlying premise and the definition of privacy upon which it rests.
Only criminals need privacy
People stating that you have nothing to fear from surveillance if you have nothing to hide base their claim on a particular understanding of surveillance. According to them, surveillance serves to uncover hidden things, and especially to detect information unfavorable to the surveilled individual because it uncovers their criminal intent or connections.
The statement also carries a peculiar understanding of what privacy is and what it serves to do. It is the apparent definition of privacy as the mere counterpart of surveillance without elaborating on the normative foundation that privacy rests on. Stating that you only have to fear surveillance if you have something to hide, is to say that your privacy is only breached by surveillance, if hidden things are detected. Following that logic, privacy only serves to conceal bad things about ourselves which can only be revealed through surveillance. Again, following the same logic, people, who do not need secrecy because they have no dark secrets, have no need for privacy either. In that understanding, privacy is the right of a person to hide facts about herself that are discrediting or dangerous for her (Sida Vaidhyanathan). Privacy becomes a tool for villains, for criminals and culprits to escape surveillance.
This is the simplistic binominal understanding of surveillance and privacy underlying the here discussed argument. Does this seem weird? It should, because surveillance is not just about uncovering hidden things, and privacy is not only about secrecy and about compromising facts.
Towards a broader understanding of surveillance and privacy
Contrary to the view outlined above, surveillance is not just about uncovering secrets and wrongdoings. A useful definition of surveillance forwarded for example by Gilliom and Monaham is “monitoring people in order to regulate or govern their behavior.” Understood in this way, surveillance is about the exercise of power. It is, since the occupation of the Phillipines and maybe even before, about controlling a population. Now that does not necessarily place us in an Orwellian society, where big brother is watching us at all times and we are oppressed and punished for our thoughts. Surveillance today differs from Orwell’s dystopian vision in important ways, even though it also displays resemblances. The exact similarities and differences are not at the core of my argument. Yet, it is useful to have a notion of big brother at the back of our minds when talking about privacy and surveillance in today’s society.
Even though we might not always feel it, we are surveilled most of the time when we leave the house, when we share information on social media, or when we use the internet in general. It does not inhibit our actions, and most of the time surveillance blends into the background and stays unnoticeable. Nevertheless, the ubiquity of surveillance illustrates that it is not only the criminals, the villains and the wrongdoers who are its objects. And it is not only them who are controlled either. Whether this is positive or negative is not the subject of this essay. What is important, however, is that it concerns us all.
Like surveillance, privacy is not what it seems to be at first glance. To reduce privacy merely to the possibility to hide something, to not be surveilled, seems not to do it justice. For Sida Vaidhyanathan, privacy is “just a word that we clumsily use to stand in for a wide array of values and practices that influence how we manage our reputations in various contexts.” Seen from this perspective, the information itself is not at the core of what privacy means. We might even choose to display some information about us on social media platforms and still consider our privacy violated when it is used in different contexts. These considerations, though not always explicitly reflected, point towards a deeper reflection that surveillance is about more than secrecy. From this perspective, control over information and therefore also control over our reputation becomes crucial.
It follows from these considerations that there is a need to expand the understanding of privacy and to include aspects of acceptable (or inacceptable) ways of treating and using information about people. They also hint at the fact that the way the discussion is framed, in “surveillance versus privacy” and “freedom versus security” seems too superficial and might also need to be broadened.
Problems arising from a simplistic understanding of privacy
In the previous sections, I have outlined that surveillance and privacy are often defined solely in relation to each other, without reference to their underlying concepts. Such a simplistic and reduced notion of privacy leads to different problems that are all related to the detachment from elemental concepts such as autonomy, self-determination and control over our data.
According to Jeffrey Pomerantz, often, what we call surveillance is not the monitoring of a certain act per se but the gathering of different pieces of information about us, the metadata. This metadata is analyzed and evaluated by an algorithm and conclusions are drawn from it. Therefore, what counts is the impression that someone has done something wrong, not whether he or she has actually done something wrong. This basically means that when evaluating the data, the algorithms use some external criterium to determine how to classify the information and how to react to it. The conclusions drawn from the metadata, and therefore also the impressions created by our actions, are dependent on this external criterium. However, most of the time, we are oblivious to what criterium is used to define what is “wrong” and what is “right”.
As Gilliom and Monaham put it: “In the surveillance society, definitions of ‘wrong’ shift and vary … In short, there are so many different and conflicting definitions of wrong that we’re all doing something wrong all the time.” This means that even someone who thinks she is not doing anything wrong and has nothing to hide is, in the eyes of someone, doing something wrong. The evaluation of her acts depends therefore on value judgments from others. These value judgments serve as the abovementioned external criterium that determines the outcome of the evaluation of our metadata. You may now start to see the problem: The value judgements of the people who program the algorithms are of crucial importance. But we have no idea what ideals they rest on. We do not know what conception of freedom and autonomy is used, or whether these concepts are even considered at all.
Add to this the fact that the programs and algorithms used are far from perfect and for example fail to consider much-needed context. This leads to a risk of creating false positives, meaning that wrong impressions are generated from the information available and innocent people are suspected of committing crimes. While this seems to be acceptable to some (especially those agreeing with the simplistic understanding of surveillance and privacy), I agree with Adam Greenfield that the ethical and constitutional foundations of our society stand in a stark contrast to this outcome.
If privacy is understood not as the hiding of information but rather as the possibility to control the flow of information about ourselves, then surveillance is problematic, because it denies the surveilled the necessary control over his or her information. The individual loses the autonomous control over this data and cannot decide in which context it is used. It can be argued that the government is trustworthy and treats the information confidentially, but this does not have to stay this way. Australia’s government, for example, is considering selling its facial recognition data to private firms. This illustrates that we just cannot control what happens to our information once it is collected. And it also hints at the possible effects of an incomplete understanding of surveillance and privacy detached from the basis of autonomy. Considering the uncertainty of what is inferred from that information and how it is evaluated, this should worry us.
Conclusion
In this essay, I have argued that the argument that people should not worry about surveillance if they have nothing to hide is too simplistic and based on an incomplete understanding of what privacy means in today’s society. Instead of understanding the goal of surveillance as uncovering secrets and the role of privacy to enable this secrecy, it is crucial to conceive these notions more broadly and to include the individual and societal relations of control inherent to them. A broader comprehension allows for a more profound problematization of surveillance that goes beyond the often-used dichotomy of “security versus privacy”. Instead, those concepts should be redefined on the basis of freedom and self-determination as the foundation of any legitimized conception of autonomous control over personal data and the boundary between public and private. It becomes apparent, then, that the fact of having nothing to hide is not a good reason for passivity towards mass-surveillance and that even if you think you have done nothing wrong and have nothing to hide, you should still worry about surveillance, because it touches the fundamental question of what freedom is all about in today’s digitalized society.