Thursday, February 5, 2015

Iain Bourne, Group Manager – Policy Delivery, Information Commissioners Office

In response to policy recommendations produced from Seminar 1 on 'Transparency Today: Exploring the Adequacy of Sur/Sous/Veillance Theory and Practice, 6th January 2015'

These views are my own and do not represent the ICO.

Interesting paper and recommendations – thank you.

On recommendations 4 and 5 – maybe we need to stand back a little bit and question some basic assumptions in this debate about the relationship between surveillance, privacy and freedom. In particular we should ask ourselves whether our objective should be to prevent surveillance per se and whether we can really expect individuals to seek to avoid interference with their privacy through ‘sousveillance’.

Maybe we should acknowledge that, to a large extent, freedom depends on security and that security depends on surveillance. Maybe we need to challenge the ‘classical’ view that more surveillance necessarily equals less freedom.

I think there’s a very compelling Hobbesian argument that by surrendering a degree of our privacy to the state through toleration of its surveillance, we are in fact safeguarding our security and ultimately our freedom. Of course this depends on what kind of state you are dealing with and what sort of person you are – and of course on how much privacy you are expected, or required, to surrender.

‘If you have done nothing wrong you have nothing to fear.’ Generally this argument is harshly rejected in privacy circles. However, in the context of surveillance it is largely true, again depending on what sort of society you inhabit. If the system is working right, it is likely that CCTV or electronic surveillance will have a more significant effect on someone who has broken the rules than on someone who hasn’t. (Whether the rules are the right ones is of course a crucial matter.)

Maybe we need to look more at the effect of surveillance than on the surveillance itself. Maybe this is as true in ‘bad’ states as ‘good’ ones. Maybe the issue even in true surveillance societies is not the surveillance itself but the subsequent arrest, unfair trial and internment in a gulag.

Despite much effort I think privacy advocates have found it very difficult to demonstrate the negative effect of surveillance per se on ‘ordinary’ citizens. There has been talk of psychological inhibition and so forth, but the evidence has never been very convincing.

Assuming there is more surveillance now than twenty years ago – has our freedom been curtailed in any apparent or measurable way? Have we changed our behaviour so as to avoid surveillance? No. Au contraire. We willingly create and disseminate more and more data about ourselves all the time. There doesn’t seem to be much opposition either to state or private organisations collecting more and more data about us. I don’t put the lack of opposition or counter-surveillance down to a lack of consciousness. I put it down to the lack of negative effect of the expansion of data collection and analytical activity on ordinary people’s lives. (Note that data creation and surveillance are quite different but are often conflated in this debate. There could be more data but less surveillance or vice versa. Some apparently highly intrusive societies were very data poor - e.g. theocratic mediaeval villages.)

The fact that most people find it hard to see surveillance as having any negative effect on them is presumably why they tolerate it. There is very little evidence of ‘ordinary’ citizens actively taking measures to avoid surveillance. For example who – apart from a fleeing bank-robber – would be likely to vary their route home in order to avoid CCTV cameras? Speed traps maybe but that’s about the consequences of surveillance (a fine) rather than the surveillance itself and – again – the good drivers who stick to the rules have nothing to fear and indeed probably want the bad drivers to be caught. (Check out iSee here: for a CCTV avoidance program.)

The privacy – surveillance debate often lacks political context. It’s easy to see it as the state versus citizens and to ignore the different types of state and the different types of citizen. Privacy and freedom are often conflated. They need to be separated and treated as different social values. You can have freedom without privacy and privacy without freedom: discuss. It’s too simplistic to say though that more privacy necessarily equals more freedom.

Actually, I think most people make a Hobbesian surveillance – freedom trade-off most of the time, but won’t articulate it as such. I think people are aware of CCTV cameras and of GCHQ and Snowden and have seen detective shows where the police use telecoms data to catch the baddies. Maybe they believe that state surveillance is there to stop bad guys doing bad things, not regular people doing good things, and that the world would be more dangerous and traditional freedoms would be eroded faster without surveillance. A perfectly understandable view.

So far so good but the good state equals good surveillance view, and the benign privacy – freedom trade-off, depends on the integrity of the state. This in turn depends on good state actors doing good state things. Your seminar summary talks about the ‘dark corners of power’, where good state actors can presumably do bad state things – although the light of surveillance could presumably stop them doing this.

The reason all this is so important now is that yes we have more data than ever and probably more surveillance than ever (if more surveillance equals more data x more people). It is clear that our surveillants (another good French word) are getting twitchy – post-Snowden – about the
general governance regime surrounding state surveillance and about public attitudes to it.

We need a proper set of surveillance safeguards – rights for ‘surveillees’, effective oversight and review, transparency, no dodgy deals with tech cos. etc. Establishing this depends on the development of a much more mature and mutually understanding relationship between privacy advocates and our surveillants. This works both ways but it depends on challenging the assumption that stronger privacy equals weaker security. It might mean more targeted and precise security, but that’s different to weaker security. (I think this is what Obama is trying to do with his oversight board post-Snowden.)

Privacy advocates will not get anywhere if they’re permanently in opposition to forces that will always be stronger than they are. They will remain marginalised and irrelevant – in relation to both the state and the general population. The benign effect they could have in terms of introducing effective safeguards will never materialise. Both sides need to recognise that they are in fact on the same side, that we have common enemies and that security without privacy is as undesirable as privacy without security – both result in a lack of freedom.

It would be interesting to see what would happen if we had a surveillance moratorium of say two weeks where we turn off all the cameras and shut down all the data feeds. Maybe we’d all enjoy a golden era of unrepressed, uninhibited freedom. Maybe it would make no difference at all. Or maybe very bad things would happen. Personally I would book a holiday somewhere else. James Madison – the 4th US president – said that ‘if men were angels no government would be necessary’. Maybe the same is true of surveillance.

These are my personal observations, intended to further discussion of an increasingly important issue. They do not reflect the view of the ICO, although we are keen to support and contribute to debate in this area.

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