Author: Seumas Miller
Privacy is not simply a desirable, de facto condition, it is a moral right to something that a person might or might not in fact possess. Specifically, privacy is a moral right a person has in relation to other persons with respect to: (a) the possession of information about him/herself by other persons; or (b) the observation/perceiving of him/herself — including tactile interference, such as body searches — by other persons. The range of matters regarded as private in this basic sense embraces much of what could be referred to as a person’s ‘inner self’. This inner self comprises a person’s unexpressed thoughts, feelings, bodily sensations and imaginings. But it may also comprise elements or aspects of a person’s body: roughly speaking, those elements or aspects that are not normally perceptually accessible to others in public spaces.
Certain facts pertaining to a person’s various public roles and practices, including one’s voting decisions, are regarded as private. These kinds of facts are apparently regarded as private in part in virtue of the potential, should they be disclosed, of undermining the capacity of the person to autonomously function in these public roles, or to fairly compete in these practices. If others know how a person votes, the person’s right to freely support a particular candidate might be undermined. If business competitors have access to a person’s business plans, then they will gain an unfair advantage over the person. If a would-be employer knows a job applicant’s sexual preferences, then the employer might unfairly discriminate against the job applicant by not hiring them because of his or her sexual preferences.
The sphere of an individual’s privacy can be widened to include other individuals who stand in a professional relationship to the first individual. Here part of the sphere of an individual’s privacy, e.g. the bodily states of a sick person, is widened to include another person, e.g. the person’s doctor, and the result is a confidential relationship. An analogous point can be made in relation to lawyers and their clients, and in relation to police and the victims of crimes who are also witnesses to those crimes. Again, law enforcement agencies must retain confidential information in relation to the activities of criminal organisations, if they are to successfully investigate those organisations.
The notion that privacy is an absolute right that cannot be overridden under any circumstances is unsustainable. The rights to privacy of some individuals, and the right to confidentiality of members of some organisations, will in some cases be overridden by the rights of other individuals and other members of organisations to be protected by the law enforcement agencies from rights violations, including murder, rape, and terrorist attack. Moreover, in the context of an ongoing terrorist threat a de facto diminution in privacy as a consequence of an increase in the circumstances in which privacy rights are overridden, or at the very least of an increase in the level of intelligence/evidence gathering within those rights, is likely to be justifiable. This is in part because the right to privacy is, speaking generally, less morally weighty than most other moral rights, such as the various rights to freedom. It is one thing to monitor a person’s communications or financial transactions, quite another to lock that person up. But it is also because in the context of a well-ordered liberal democracy at peace yet facing a terrorist threat, the terrorism-as-crime framework is applicable and under the terrorism-as-crime framework the emphasis is on increasing the intelligence/evidence gathering activities of security agencies and perhaps also selective and limited widening of the intelligence/evidence gathering powers of police — almost inevitably at the expense of privacy — so as to facilitate the prosecution of terrorist offenders and reduce the effectiveness of their operations by, for example, denying them financial resources. By contrast, under a terrorism-as-war framework the emphasis is on capturing or killing terrorists, i.e. the human rights at issue are the right to life and the right to freedom. This is not to deny the applicability of the terrorism-as-war framework in certain contexts. However, it is to insist that one of those contexts is not a well-ordered, liberal democracy at peace. Accordingly, in the context of a well-ordered, liberal democracy at peace it is politically dangerous and morally unacceptable to infringe citizens’ rights to life, e.g. by shoot-on-sight provisions, and rights to freedom, e.g. by detention without trial; that is, it is politically dangerous and morally unacceptable to apply the terrorism-as-war framework to well-ordered, liberal democracies at peace.
In relation to accessing of data and/or intercepting of communications by law enforcement agencies, trade-offs might need to be made between the rights of citizens — including suspects — to privacy and confidentiality on the one hand, and the rights of actual and potential victims to protection from serious crime, such as terrorism, on the other. Specifically, the right to privacy and confidentiality might need to be traded down in order to protect the right to life of those threatened by terrorists. Thus, limited use of data-mining might be justified, e.g. cross-tabulating a data-base of suspected terrorists – it being a crime to be a member of the terrorist organisation in question – against a data-base of the registered hotel guests in a specific location and time period. However, definite limits needs to be placed on any such trading down, e.g. reasonable suspicion in relation to serious crime, and appropriate accountability mechanisms put in place, e.g. destruction of data only justifiably acquired for a specific investigation, a requirement for judicial warrants. Moreover, here as elsewhere, creative solutions to the threat of terrorism might minimise the threat to privacy while maximising protection against terrorists. For example, footage from video surveillance cameras operating continuously in public areas might be subjected only to limited access by a restricted group of investigators and subsequent to the performance of some criminal act. Additionally, continuous monitoring of such surveillance cameras might be by way of an automated process that ‘detected’ only certain pre-determined and programmed-in suspects (e.g. on the basis of their photographs) and — having detected them — alerted security staff to their presence.
Clearly, the state of technology at a given point in time to some extent determines the possibility of minimising the threat to privacy while maximising protection against terrorism and other crimes. However, as is frequently pointed out, technology can also simply provide the means to maximise infringements of privacy without any concomitant, or morally justifying, increase in protections against terrorism. Moreover, technology can also provide the means to maximise privacy and reduce the possibilities of successfully combating terrorism and other crimes. For example, the current availability to the general public of very secure computer systems and of high-level encryption products makes accessing of data and/or intercepting of communications on the Internet by law enforcement agencies extremely difficult and expensive.
Given such an array of technological possibilities it is important to determine an appropriate set of principles by means of which to give direction to the use of surveillance and communication interception technology. These principles include the following ones,[i] first developed in relation to the interception of communications by telephone and infringed in recent years by the National Security Agency in the US.
First, because such accessing and/or intercepting are by definition an infringement of the right to privacy, the presumption must be against their use. This presumption can be overridden by other weighty moral considerations — especially the need to protect other moral rights — or by exceptional circumstances, such as might obtain in wartime or under a state of emergency. But the presumption cannot be overridden by a blanket appeal to the common good or to the general need for security.
Second, the benefits of such accessing and/or intercepting must offset the likely costs, including the costs in terms of the erosion in public trust.
Third, the accessing and/or interception in question must be in relation to serious crimes, e.g. terrorism.
Fourth, there must be at least a reasonable suspicion that the person whose privacy is to be infringed has committed, or intends to commit, a serious crime — or is implicated in a serious crime — and that the resulting information is likely to substantially further the investigation under way in relation to that crime.
Fifth, there must be no feasible alternative method of gathering the information that does not involve an infringement of privacy.
Sixth, the law enforcement officials must be subject to stringent accountability requirements, including the issuing of warrants in circumstances in which the justification provided is independently adjudicated.
Seventh, those whose privacy has been infringed must be informed that it has been infringed at the earliest time consistent with not compromising the investigation, or connected investigations.
An increasingly important issue in relation to privacy is the integration and sharing of different sets of information available to different government — including law enforcement — agencies. This is morally problematic in that, as we have seen, there is a presumption against the gathering of information on citizens by government officials, including law enforcement personnel. This presumption can be overridden in relation to specific kinds of information required for specific legitimate purposes, such as tax gathering or the investigation of someone reasonably suspected of engaging in serious criminal activity, such as terrorism. But information gathered for one purpose should not be made available for another purpose, unless a specific case can be made out for doing so and appropriate accountability processes are in place.
Nor is this simply a problem for isolated individuals whose rights might be infringed; the problem is potentially a societal one. One of the purposes of privacy law is to deny, as far as possible, the formation of linkages between statutory bodies, and thereby to prevent such linkages enabling the coming into being of a ‘Big Brother’ system of invasive inquiry and social control of the kind that existed in Eastern Europe under communism. Accordingly, organisational ‘Chinese walls’ are supposed to separate the investigators employed by one of the several different organs of government from the investigators employed by another of these organs. Limited contact across the statutory barriers might only be made — or denied — at the highest level, and for good reason; and done so in a parsimoniously sanctioned and limited manner following stringent protocols.
An investigation into a serious crime, including a terrorist attack, necessarily involve adherence to the principle of confidentiality on pain of compromising said investigation. The moral underpinning of the principle of confidentiality in such cases consists in the moral obligations to victims and potential victims. However, once the investigation is completed there is no longer this basis for confidentiality. Indeed, respect for the rights of those accused of the crime and the requirement of investigator accountability dictates that secrecy give way to transparency.
So far so good. However, matters are more complicated when what is under investigation is not simply an individual one-off crime, but a criminal organisation or, in this case, terrorist organisation which has mounted a series of attacks and continues to do so; necessarily the investigation is large, complex and ongoing. Here, as before, we are concerned with an investigation or set of connected investigations, into a terrorist organisation operating within the confines of a liberal democratic state.
Here the nature and scale of the activities of the terrorist organisation is important. Notwithstanding some notable ‘successes’ on the British mainland, e.g. the 1996 bombing of London’s prestigious business centre at Canary Wharf, the IRA at no time threatened the existence of the UK state as such. On the other hand, the political status quo in Northern Ireland was certainly threatened by the terrorism and counter-terrorism involving the IRA, the loyalist paramilitary forces, and the British and Northern Ireland security forces. Arguably, therefore, Northern Ireland in the last thirty years of the twentieth century was, in effect, experiencing an extent and degree of insecurity analogous to a state of war and warranting, as a consequence, the imposition of an ongoing state of emergency.
However, notwithstanding the rhetoric of the ‘War against Terrorism”, neither the US nor the UK are experiencing this level of internal insecurity. Accordingly, the nature of the ongoing investigations in relation to terrorist groups and activities the US and the UK is arguably at this stage more analogous to ongoing investigations into organised crime networks, than full-blown counter-terrorist campaigns of the kind engaged in by the British army and the Royal Ulster Constabulary in Northern Ireland.
That said, the investigations into terrorist attacks and networks in the USA and the UK are large-scale, complex and ongoing. Accordingly, it cannot reasonably be expected that there be full disclosure of the sort following on a completed investigation of a one-off discrete crime. For example, lists of suspects and police informants, the modus operandi of security personnel, and planned raids need to be kept confidential on pain of compromising counter-terrorist operations.
Here it is important to distinguish operations from policy. Notwithstanding the need for operational autonomy and associated secrecy, it would be unacceptable for police and other security personnel to use tactics and possess powers that are not transparent to, and consistent with, liberal democratic government. Hence the unacceptability of warrantless domestic wiretaps conducted by the National Security Agency and secretly authorised by President Bush in contravention of the Foreign Intelligence Surveillance Act. Moreover, there is a need for ongoing oversight of security operations; and such oversight cannot wait for the ‘end of the war on terrorism’ — a war without a determinate end, as is the ‘war on crime’.
Here it is worth describing some of the dangers attendant upon state secrecy. Firstly, excessive secrecy can undermine operational effectiveness. Evidently, this is what happened in the case of the 1980 helicopter incursion by the US into Iran to rescue unlawfully held US citizens. The mission failed in large part because the secrecy requirements were such that the various helicopter crews were unable to coordinate their activities.
Secondly, high levels of secrecy can mask incompetence. Evidently — and this is thought be many to be a generous interpretation — incompetence is at least in part what happened in relation to the WMDs falsely thought to be possessed by Saddam Hussein. Saddam Hussein’s believed possession of these weapons was the primary justification for invading Iraq. In retrospect it is clear that the evidence possessed by the US and UK security agencies did not justify a belief in the existence of these WMDs.
Thirdly, high levels of secrecy can mask not simply incompetence but corruption, illegality and gross immorality, including human rights abuses. This is obvious in the case of authoritarian regimes, but it is also a problem for liberal democracies. Consider the Pentagon Papers. These gave a detailed account of US involvement in the war in Vietnam. Daniel Ellsberg, a public servant, leaked the papers to the New York Times in 1971. The papers detailed the incompetence, illegality and immorality of US foreign policy in Vietnam over many years. Ellsberg breached the principle of administrative confidentiality. On the other hand, the revelations he made possible demonstrated the dangers of state secrecy and the need for accountability. If recent disclosures of the apparently unlawful, but in any case definitely warrantless, wire-tapping by the National Security Agency in the US illustrate state secrecy and an absence of executive accountability – as they certainly do – then recent disclosures of torture at Abu Ghraib in Iraq illustrate the inherent dangers of state secrecy and an absence of accountability.
[i] An earlier version of the material in this section appeared in Seumas Miller and Ian Gordon Investigative Ethics: Ethics for Criminal Investigators and Police Detectives (Wiley-Blackwell, 2014), Chapter 8.