In discussions of mass surveillance, it is often taken as a given that the right to privacy protects something intrinsically valuable, viz, one’s privacy. But that privacy is inherently important is something that many people don’t take seriously. “Why should I care?” they say, “so long as I have done nothing wrong? If we assume that the government is operating benevolently — and not in a biased or overreaching fashion, how could mass surveillance be a problem?” What’s wrong with mass surveillance in theory?
It is difficult to argue against this in practice. Why should you care if strangers who work for the government know what you do in your day to day life, so long as they are operating benevolently? It’s not as if you know each other personally. Their knowledge wouldn’t affect your livelihood, barring some extraordinary event where you step out of line.
Or so the train of thought goes.
Here I will offer a defense of the right to privacy in terms of a check on power. Mass surveillance, I contend, erodes the citizenry’s ability to maintain what I’ll call a citizen image with respect to the state, and that this is problematic even if the state is operating benevolently. When there is an asymmetry between how much the state knows about the citizenry and the citizenry about the state — such that the asymmetry is in the state’s favor — the citizenry loses the capacity to bluff the government. This allows for easier state-intervention in the citizen’s lives, which everyone ought to be concerned about.
The blowfish is a well-known creature given its ability to ward off predators simply by inducing fear from its size. This phenomenon of bluffing is one that all of us engage in. Sometimes we do so in tussels on the playground, where we use strong language in place of muscular strength. Other times we bluff, when older, in competitive jobs where we will try to stand out with an incredible resume, even if it doesn’t track our level of competence. In other words we all project an image to various parties at some point in our lives.
Suppose that you purchase a muscle suit and wear it beneath your clothing each day. You spent a lot of money on the suit and so people take you to be well-built. In such a case, people will be less likely to attempt mugging you. When your public image is one of strength, you will be safer from predators that roam the streets. But if thugs know about your little secret, then the image no longer works. Indeed, your image may be worse — people will know that you’re a bluffer. The blowfish effect is certainly dead. Secret-keeping, then, is important for an individual’s ability to bluff.
Now consider Ted Kacyzinski — the Unabomber — who wreaked havoc upon universities and airlines with homemade explosives. Before he was caught, two things were true: nobody knew exactly how he was pulling off these attacks — he maintained that secret — but also he was anonymous; he could be anyone. The public, then, formed an image of him as terrifying, persistent, highly intelligent, and among us.
But when he was caught, his public image faded — he was just an ordinary man (indeed, he seemed a bit nerdy too), and the secrets behind his attacks were discovered. The fear that had come from his image dissolved, for we knew who he was — he couldn’t be among us — and his tactics were known and so now preventable. When he lost his anonymity and the secrets behind his attacks were revealed, he could no longer bluff. The ability to keep secrets and remain anonymous, then, are two primary components of human bluffing. Two ways to induce fear in another party, perhaps to wreak havoc, as in the case of Kacyzinski, but perhaps also to simply ward off intrusions.
Mass surveillance erodes the ability of the public, I contend, to maintain a citizen image with respect to the state. The state — those individuals acting as state agents — has some impression of what the public is like, and how they operate. They have some impression of the power behind the citizenry — how coordinated are they? How much dedication do they have toward a cause? Who is doing what?
Mass surveillance gives the state the capacity to erode the image a citizenry is giving off — it has the capacity to discover secrets and dissolve anonymity. The right to privacy, then, protects the ability of the governed to maintain a citizen image with respect the state. In this way, the governed can induce fear in the governing, and ward off intrusions by the state. Since the state has de facto power over the citizenry (it has military forces), this operates as a check on power.
To illustrate, consider the recent case of the May 30th protests in Seattle, over the death of George Floyd. The protests, according to the police, started out peacefully, but eventually turned violent, leading to damaged police property and injured individuals. All parties involved — both police and demonstrators — were wearing masks.
The Associated Press reported on July 3, 2020, that police were issuing subpoenas for photos and video of the protests in order to identify who had set police vehicles and stolen some of their firearms. The police were seeking to unmask anonymous individuals. This is problematic, for which of these two images is more frightening for state agents?
When the individuals could be anyone, the answer is clear. But when the unmasking happens and ordinary individuals are shown, then like Kacyzinski, the jig is up, and state-agent fear will go down. If state-agents had perfect mass surveillance technology, then no citizen image could ever be in control of the people. It is worth noting that a public image can be damaging if it is not under the control of the people who have it. If, for example, the police were able to paint unmasked protestors as violent, then the citizenry may actually have fear of one another. The citizen image would be damaging.
It is also worth noting that a citizen image can be used as a provocation. Suppose that you are Bruce Lee — incredibly strong and adept at martial arts — and are looking for a fight. So, you wear loose clothing so that your public image is one of weakness; you look like an individual with a small stature. Suppose also that, in looking for a fight, you shout insults at passersby in a rough neighborhood. Clearly, you’d be more likely to encounter someone who wouldn’t take your insults kindly, and would move to defend their honor, given your small stature. You can provoke an attack.
The same is true of protestors who may want to show that the state-violence is extreme. If you shout insults at police and wear clothing that makes you appear easily-defeated, they may be more likely to move in on a crowd and display that they will engage in overreaches of power, when given the opportunity. Such a move can be beneficial to a cause, damaging the state image.
If the governed lose control over their citizen image, they lose the capacity to bluff. If they cannot bluff, there is less reason for the state to refrain from intruding on the citizenry. The right to privacy, then, is an important one even in theory. It allows the governed the capacity to keep secrets and remain anonymous, facilitating their ability to project a powerful citizen image, “blow-fishing” the state. Even if the government were benevolent, the citizen image keeps that government at bay. Like the norm of citizen solidarity, then, the citizen image maintains a healthy space between the governed and the governing.
It is also important to remember that the state can bluff as well. If the citizenry can know nothing about how the state works, or who is doing what, but the state knows everything about the citizenry, then the state can bluff the people, adding to their stock of power.
Consider how the Snowden leaks didn’t just reveal that the government was spying on millions of Americans domestically and millions of people abroad, it also revealed the extent to which top secret classification was ubiquitous. Indeed, even mundane emails which asked things like what was for lunch that day were considered top secret. The citizenry can’t even know how the government eats lunch, much less their identities behind masks (the police force, for example, wears anonymizing uniforms and masks at a number of protests). I contend, then, that the laws surrounding when a top secret classification can be given ought to be revised and the bar raised. Otherwise, the state may bluff the citizenry, creating a greater asymmetry in power between the governed and the governing.
The right to a citizen image through the right to privacy, and the deflation of the state’s image through fewer top secret classifications, then, imply that mass surveillance ought to be the other way around. It is the people who ought to be spying on the state, for this ensures that the power remains in the hands of the governed.