e free speech and privacy politics government digital freedoms privacy

There have been wrongful arrests during the war against terror. Riwaan Sabir was wrongfully arrested under the terrorism act in 2008 for downloading an al-Qaida training manual despite the manual having been downloaded from a US government website and been for his master’s degree at the University of Nottingham. [1] Since the offence was online it is certainly possible that information from spying was a part of the cause for the arrest. It is true that we probably have less cause for concern when it is foreign governments doing the spying but this could still have consequences such as being denied entry if you wish to travel to or through the country.  [1] Townsend, Mark, ‘Police ‘made up’ evidence against Muslim student’, The Guardian, 14 July 2012,

You are not going to be arrested because the government has access to your communications  Clearly much of the time you really do have nothing to worry about when it comes to intelligence agencies having information about you. People are not regularly arrested without just cause and we have little evidence that democratic governments use this information to put pressure on their citizens. There have been no known cases of this happening since the start of the war on terror. [1] When it comes to foreign governments this is even less of a cause for concern; while your own government might be interested in various aspects of your life to help it with the services it provides foreign governments only have one motivation; their own national security. If you are not a threat to that national security the chances of them ever taking any action against you are essentially nonexistent.  [1] Posner, Eric, ‘I Don’t See a Problem Here’, The New York Times Room for Debate, 10 June 2013,

In the UK case this is not all it appears. The Intelligence Services Commissioner is comparatively toothless, and both it and the Interception of Communications Commissioner are immensely understaffed for monitoring all UK intelligence agencies. Some experts such as Professor Peter Sommer have even suggested “I am not sure that ministers or the ISC would know what questions to ask.” [1] Moreover this is trusting that ministers have the best interests of the people at heart, in the case of this conservative government which seems perfectly happy to introduce bills that erode freedoms such as the ‘snoopers charter’ this seems unlikely.  [1] Hopkins, Nick, ‘William Hague on spying scandal: what he said … and what he didn't say’, guardian.co.uk, 10 June 2013,

There is no physical risk  In terms of physical risk it is almost certainly true that you have nothing to fear from government having loads of information. With the exception perhaps of the Russian FSB and despite the James Bond films intelligence agencies in democracies are not in the habit of bumping people off this mortal coil. In this sense it does not matter at all what information the intelligence services have on you; no matter how naughty you may have been it is not going to be worth some kind of physical retaliation. Essentially the argument here is that it does no harm, and even does some good, so why should it not continue?

Physical risk is not the only risk that people worry about. Denying someone their liberties such as privacy or freedom of expression does not pose a physical risk to them but that act is still wrong and it is still worth worrying about. Citizens have the right to go about their own business without their government spying on them. They should not have to concern themselves with what information the government does or does not have.

Clearly if no one ever actually looked at any information provided by surveillance then there would be no point in conducting it. Even if it were true that no one looks at any of the data being watched is still an intrusion that affects behaviour. It will affect decisions that are perfectly lawful because there will always be the slight worry that someone who you don’t want to have that information because they will think differently of you will obtain it. When the information is out of your hands you can no longer be certain who will obtain it. [1] Since people have been arrested for the information that has been conducted, clearly sometimes the information is checked and used.  [1] Moore, Mica, and Stein, Bennett, ‘The Chilling Effects of License-Plate Location Tracking’, American Civil Liberties Union, 23 July 2013,

There are safeguards to prevent misuse  In democracies there are numerous safeguards and levels of oversight to prevent abuse. In the UK for example there is a “strong framework of democratic accountability and oversight”. Agencies are required “to seek authorisation for their operations from a Secretary of State, normally the Foreign Secretary or Home Secretary.” The Secretary is given legal advice and comments from civil servants. Once the Secretary has given assent they are “subject to independent review by an Intelligence Services Commissioner and an Interception of Communications Commissioner… to ensure that they are fully compliant with the law”. [1]  [1] Hague, William, ‘Prism statement in full’, politics.co.uk, 10 June 2013,

No one will ever actually look at the information  If the concern is privacy then there really should be little concern at all because there is safety in numbers. The NSA and other intelligence services don’t have the time or motivation to be tracking down all of our foibles. [1] If the intelligence agencies are watching everyone then they clearly do not have the personnel to be watching the actual communications. Instead certain things or patterns will raise alarm bells and a tiny number will be investigated more closely.  [1] Walt, Stephen M., ‘The real threat behind the NSA surveillance programs’, Foreign Policy, 10 June 2013,

The circumstances in the cold war were clearly different to today so this kind of abuse of power would be unlikely to happen. More broadly yes there is the potential for abuse in much the same way that there are people in banks who could steal large quantities of other people’s money. That there is a potential opportunity does not mean it is ever used. Abuse can never be totally avoided but if abuse is a concern then whether or not there is a program of surveillance is not the highest concern. Even if there were not wide ranging surveillance problems those in intelligence looking to abuse their position would be able to obtain the information because they have the technology to do so.

Far from threatening democracy the intelligence agencies are using this information to protect democracy from terrorists who wish to overthrow the whole concept of democratic governance. Intelligence agencies are clearly under civilian control and have several layers of oversight to ensure that this kind of misuse does not take place. In the United States this means there is oversight from Congress and in the UK from Parliament. There is also judicial oversight in the form of the Interception of Communications Commissioner and Intelligence Services Commissioner in the UK [1] and the Foreign Intelligence Surveillance Court in the US. [2]  [1] ‘Judicial Oversight’, Security Service MI5,   [2] ‘Foreign Intelligence Surveillance Court’, Federal Judicial Center,

Lack of trust  The problem is that when it comes to privacy it is not really our personal physical security that we are worried about. Part of the problem is that we value our right to a private life and that we should have control over that to the extent of being able to decide how much information others know about us. To a large extent this is an issue of trust; we (sometimes wrongly) trust our friends and others with information about us. We often trust faceless entities; companies and governments too though usually to less of an extent. But a lot of that trust is as a result of their willingness to tell us what they know about us, to provide information in return, or to provide methods for us to restrict what they know. In cases like this that trust has not been earned; we were not asked, and not obviously given anything back, and there seems little change of us changing the terms of the relationship.

Loss of Privacy  It is wrong to state that we only have anything to ‘fear’ if we have done something wrong; a great many people want to keep things private where what they have done is morally perfectly right and justifiable. It is perfectly justified for a married couple to want to keep a video of them having sex private – even if it is sent from one partner to the other by email, or for someone to keep his/her sexual orientation secret even if they have told someone about it. [1] If we want such information to be kept private does the state have any business picking that information up from our emails? It may not go any further than the intelligence agency, it is possible no one there will look at it but it is still an invasion of privacy.  [1] Phillipson, Gavin, ‘Q&amp;A: The right to privacy’, BBC Religion, 14 June 2013,

The use of meta data causes unintentional harm  The other possible harm is unintentional. The amount of data involved is huge and too much even for a vast organization like the NSA to actually physically look at. Instead it uses data mining. This is why the NSA wants data that may seem useless to others. The records of which phone numbers are phoning who, as the NSA was obtaining of Verizon, might seem useless but can tell them who you are contacting, and how much contact time they have. In turn they could look at who your contacts have been talking to and if it turns out that several of them talk regularly to suspected terrorists then even if you are innocent a finger of suspicion might be pointed. There has even been a study showing that individuals can be identified from just the time of call and nearest cell phone tower after just four calls. [1] PRISM gives the NSA even more ‘useless’ data to play with. The results of this data mining may usually be accurate but will not always be so and the result of being flagged like this can be problematic for individuals. It may mean additional airport security, having problems getting a visa, [2] or in the worst case finding its way onto a no fly list.  [1] De Montjoye, Yves-Alexandre, et al., ‘Unique in the Crowd: The privacy bounds of human mobility’, Scientific Reports, 3, 25 March 2013,   [2] Brown, Ian, ‘Yes, NSA surveillance should worry the law-abiding’, guardian.co.uk, 10 June 2013,

Abuse of information and power by intelligence agencies  Even when the government does not intend harm there are still cases where direct harms can occur as a result of surveillance. The most worrying are where the state abuses the information it holds. Abuse of power and of the information held by government is perhaps the main reason why it is difficult to trust in intelligence agencies. In one historical example from the 1950s FBI agents interviewed a Brooklyn liquor importer for repeating a rumor that the FBI Director J Edgar Hoover might be a “queer”. This clearly necessitated a reminder through questioning that Hoover’s “personal conduct is beyond reproach,” leading to the man quickly agreeing that “he thinks Mr. Hoover has done a wonderful job.” [1] Did this have anything to do with national security? No. Was it an abuse of power and surveillance? Yes. So far as we are aware the intelligence agencies don’t do things quite like this anymore but the revelations like PRISM, or the waterboarding a decade ago, show they are still happy to abuse their position from time to time. This is hardly a good way to build trust.  [1] Gage, Beverly, ‘It’s Not About Your Cat Photos’, Slate, 10 June 2013,

Is it really an invasion of privacy if no one else knows about it even if that information is added to some giant computer database? The information we wish to keep secret remains a secret, in the unlikely event that some analyst reads the information they are never going to broadcast it to others as keeping secrets is a part of what intelligence agencies do.

A threat to democracy  Yes the NSA is unlikely to look at individual’s personal information if the person in question is nobody of interest yet there are people who may be of interest to the state who are essentially innocent of anything except annoying the state. The ability for almost anyone in the intelligence apparatus to look up personal information has to worry anyone who might otherwise dissent, investigate the government, or turn whistleblower. Intelligence officials can hold the information as a weapon to ensure compliance and ruin careers if they don’t get their way. [1] This has happened before. In the US when diplomat Joseph C. Wilson published about the manipulation of intelligence on uranium from Niger being used as part of the justification for the invasion of Iraq his wife had her cover blown and career destroyed by people within the Department of Defense. [2] When we know that the Obama administration has been more determined than ever to prevent leaks and prosecute perpetrators can it really be said there is no damage to democracy if these courageous people are not coming forward?  [1] Walt, Stephen M., ‘The real threat behind the NSA surveillance programs’, Foreign Policy, 10 June 2013,   [2] Wilson, Joseph C., ‘What I Didn’t Find in Africa’, The New York Times, 6 July 2003,   Lewis, Neil A., ‘Source of C.I.A. Leak Said to Admit Role’, The New York Times, 30 August 2006,

Metadata and data-mining are not new they are simply becoming more frequent, and more accurate as a result of more information. In the past there have been other ways of collecting data; tax records, voter registration, reverse telephone directories. [1] At the same time government and the intelligence agencies are not even those who make most use of this, there are whole private companies devoted to sifting this data. [2] There is little reason why we should particularly worry about this being done by intelligence agencies.  [1] Gomez, David, ‘Hoovered’, Foreign Policy, 11 June 2013,   [2] See the debatabase debate ‘ This House would not allow companies to collect/sell the personal data of their clients ’.

The intelligence agencies are not violating any right to privacy if they are not actually looking at the content of any emails, even less so as they in almost all cases won’t even be looking at the metadata. It is not possible for intelligence agencies to be asking the people before engaging in every surveillance policy as even knowing the broad outlines of what the surveillance involves could allow the targets of that surveillance to avoid that surveillance. While individual citizens are not asked this is where the people’s representatives should be trusted, it is ministers and members of parliament that allow surveillance and hold the agencies to account.