by Yuwei Lin
The responses from the governments to the Snowden's (2013) revelations were largely framed under a discourse of “for greater pubic good” (i.e. for national security in this context). Lately, the popularity of the Internet and computers has engendered other episodes where individual's privacy rights conflict with the public's information rights (e.g., individual's “right to be forgotten” and the public's “right to know” in the case of search engines’ responsibilities regulated by the EU Data Protection Law). Search engines like Google use the discourse that “the public should have the rights to information” to justify their surveillance over users. This concept of 'public interests' in some way also resembles one of the essences of journalism – to serve the public's rights to know. This conflict between public's information rights and individual's rights to privacy can be seen in the long-standing struggle over paparazzi, who exercise a form of surveillance.
The tension between the public and the private has long existed, predating the invention of the Internet. For example, while contemporary British society may consider diversity and equality as fundamental British values, we should remind ourselves that not so long ago, abortion, the use of contraception, or engagement in same-sex sex used to be criminal (and remain so in some countries and still controversial in modern society). Privacy was compromised to serve 'public good' (morality). Siegel (2015) recounts a prominent example in protecting for “liberty” and individual's right to privacy when it comes to sex and marriage, whether sex in marriage, or same-sex marriage:
In 1957, England’s Wolfenden Commission proposed to repeal criminal bans on sodomy as infringing on sexual relations that were properly “private. (the Wolfenden report 1963). In the ensuing debate over the Commission’s report, Lord Patrick Devlin (1959) defended the use of the criminal law to enforce public morals, while H.L.A. Hart (1963) countered by emphasizing the importance of protecting a sphere of liberty, of individual privacy, from the reach of the criminal law. This debate about whether and when it was appropriate to criminalize sex would soon spread from public policy and political philosophy to constitutional law.
These historical events tell us that while topics such as national security and terrorism appear to be at the heart of the discussion about privacy these days, we shall not forget other forms of surveillance on different platforms (e.g., social media) due to controversial issues (e.g., racism, sexism, different forms of discrimination).
It is easy to be blinded by the recent discussion about 'state security' and 'terrorism' when it comes to 'surveillance'. But the subject of surveillance is deeper than that. Numerous studies have found that anonymity, one of the key essences of privacy, both online and offline, is important for fostering individuality; privacy and free expression are key to identities building (e.g., Livingstone 2008, Naples & Maher 2002). A heavily surveilled society denotes the existence of homogeneous morality (instead of diverse values). Surveillance is applied to ensure everybody is following the same rules; no negotiations nor different interpretations are allowed.
Surveillance therefore is an indicator reflecting how liberal a society is. In a heavily surveilled society (note that there are different forms of surveillance, including self-surveillance, community surveillance, state surveillance), people enjoy less liberty and freedom. Pondering why surveillance takes place and in what forms it is exercised allows us to inquire what public and private interests are conflicting with each other and why they exist. For example, in the case of state surveillance in the name of terrorism, are both the state (the public) and individual citizens (the private) given equal ground for expressing their interests and ideas (e.g., definitions of terrorism - what definition(s) are given to 'terrorism' and who defines it)? In the case of other moral activities, how do we define 'damaging, illegal, or indefensible conducts' or moralities in law?
I think journalism (and media) should provide space for such dialogues, instead of becoming a propaganda machine for the state to advocate one version of 'security'.
Other questions to be pondered are:
What are the alternatives to addressing the conflict between State interests and individual citizen's rights? How do we balance “the needs of the state against the rights of the individual, as well as the risks and benefits inherent in data flows, international differences in regulatory frameworks and current anxieties about the uses to which data may be put, including its misuses” (Kuner 2015)?
Devlin, P. (1959) Enforcement of Morals.
Hart, L. A. (1963). Law, Liberty, and Morality 14-15.
Kuner, C. (2015). 'Christopher Kuner discusses balancing the needs of the state against the rights of the individual', OUP Podcast, URL: https://soundcloud.com/oupacademic/christopher-kuner-discusses-balancing-the-needs-of-the-state-against-the-rights-of-the-individual
Livingstone, S. (2008). 'Taking risky opportunities in youthful content creation: teenagers' use of social networking sites for intimacy, privacy and self-expression'. New Media & Society, 10(3), 393-411.
Naples G J and Maher M (2002). 'Cybersmearing: A Legal Conflict between Individuals and Corporations', Refereed article, The Journal of Information, Law and Technology (JILT) 2002 (2), <http://elj.warwick.ac.uk/jilt/02-1/naples.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/naples/>.
Siegel, R. B. (2015). 'How Conflict Entrenched the Right to Privacy'. The Yale Law Journal 124 Forum 316, 2nd March 2015. URL: http://www.yalelawjournal.org/forum/how-conflict-entrenched-the-right-to-privacy
The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963)
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