A warning about the unintended consequences of surveillance conducted in good faith was issued by United States Judge Warren Brandeis nearly 100 years ago. Today, government access to phone data is at the centre of debate as the FBI attempts to force Apple to unlock an iPhone. That particular iPhone, as many are aware, was owned by one of the attackers of the San Bernardino shooting in December 2015. Apple CEO Tim Cook has stated in an open letter posted to the company website that now is the time for “…everyone to step back and consider the implications” (Cook 2016). Public discussion of surveillance and encryption has mushroomed in recent years largely as a result of the efforts of NSA whistleblower Edward Snowden and journalists like Laura Poitras, Glen Greenwald and Ewen MacAskill that facilitated the release of files he copied. Since that time, government agencies, civil rights groups and tech firms have debated the limits, if any, that should be placed on surveillance performed by state actors. Both the FBI and Apple have made the safety of citizens a central plank in their platforms, shifting discussion towards the broader implications of expanded government surveillance power. Brandeis, Snowden, Cook and others have encouraged careful consideration of actions that are, as Brandeis (1928) wrote ‘well meaning but without understanding’. The need for surveillance ethicists has never been greater than it is today.
In early 2015 Prime Minister Dave Cameron requested and received support from President Barack Obama for a ban on encrypted communication used by messaging apps such as iMessage, Snapchat and WhatsApp. Cameron made it very clear that, in the UK, it was unacceptable and dangerous for intelligence agencies to have anything less than full access to personal communication. By the fall, White House officials showed signs of reconsidering in light of the risks weakened encryption pose to cybersecurity. At that time, a senior lawyer in the intelligence community indicated the push for encryption could regain traction “in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement” (Nakashima and Peterson 2015). Just weeks later the San Bernardino tragedy amplified the debate on encryption as law enforcement and intelligence agencies moved to coerce Apple to comply with requests for access to phone data. Meanwhile, in the UK, the Draft Investigatory Powers Bill continues moving through parliament. Although the bill does not ban encryption, rights groups warn it could result in legal authority to force tech firms to unlock devices (Ghallager 2016).
Days before the Draft Investigatory Powers Bill was announced last May, David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression published a report that framed encryption as an essential tool for civil society. More recently, the first ever Special Rapporteur on the right to privacy Joseph Cannataci published a report that includes a ten point action plan. One of the strategies focuses on technical safeguards for protecting privacy, which he argues is necessary since ‘Law alone is not enough’ (Cannataci 2016). Cannataci celebrates United States Defense Secretary Ash Carter for announcing he opposes back doors that would circumvent encryption. He further argues that this is a position that ‘should be encouraged and reinforced’. However, Cannataci also raises concerns that the Apple vs. FBI case demonstrates a continued effort by parts of the administration to force tech firms to provide government agencies with access to encrypted communication.
In his open letter, Tim Cook describes the continued effort to force tech firms into compliance as a ‘dangerous precedent’. He draws on terms like chilling, democracy, liberty and of course, privacy. Cook also writes ‘we believe the FBI’s intentions are good’ and lists several ways the company has offered support for the San Bernardino investigation. Cook, like Snowden and Brandeis, does not oppose surveillance that is conducted in alignment with democratic rights and freedoms. The question facing civil society is not simply if surveillance should be conducted or not. Surveillance, when done with careful consideration, creates many benefits for members of civil society (Lyon 1994). The question is how much of the surveillance power that is possible in a technological sense is reasonable, appropriate or desirable? As Kirstie Ball has argued, citizens must be consulted to “…inform organizations and governments about modes of surveillance which are socially and ethically responsible” (2007:15). This also means citizens need to be informed about the broader implications of intensifying and expanding surveillance by state and corporate actors. The responsible use of surveillance requires equal consideration of the intended as well as the unintended consequences because its practice “…raises some of the most pressing social, political and ethical questions of our day (Bennett, Haggerty, Lyon and Steeves 2014:19). The complexity of surveillance in contemporary society requires individuals with specialized research skills to take on the role of surveillance ethicist. The stakes are simply to high for civil society to make decisions about surveillance based on polemics and rhetoric. Approving of surveillance based on good intentions is simply not sufficient as Brandeis (1928) warned so long ago:
"Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. [Individuals] born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by [individuals] of zeal, well meaning but without understanding."
Ball, K. (2009). Exposure. Information, Communication & Society, 12(5), 639–657. http://doi.org/10.1080/13691180802270386
Bennett, C. J., Haggerty, K., Lyon, D., & Steeves, V. (2014). Transparent Lives: Surveillance in Canada. Edmonton, Canada: Athabasca University.
Brandeis, L. (1928). Olmstead v. United States: The Constituional challenges of Prohibition Enforcement. United States.
Cannataci, J. (2016). Report of the Special Rapporteur on the right to privacy (No. A/HRC/31/64). United Nations.
Cook, T. (2016, February 16). A Message to Our Customers. Retrieved March 19, 2016, from http://www.apple.com/customer-letter/
Gallagher, R. (2016, March 15). U.K. Parliament Debates “Snoopers’ Charter.” Retrieved March 22, 2016, from https://theintercept.com/2016/03/15/uk-parliament-debates-snoopers-charter/
Kaye, D. (2015). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (No. A/HRC/29/32). United Nations
Lyon, D. (1994). The Electronic Eye: The Rise of Surveillance Society. Minneapolis: Polity Press.
Nakashima, E., & Peterson, A. (2015, May 18). Tech giants don’t want Obama to give police access to encrypted phone data. The Washington Post. Retrieved from http://www.washingtonpost.com/world/national-security/tech-giants-urge-o...