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Surveillance, Resilience and Democracy

Panelist's Comments at the Joint Final Event of
the EU IRISS, RESPECT and SURVEILLE Projects
Brussels, 30 October 2014

Version of 30 October 2014

Roger Clarke **

(c) Xamax Consultancy Pty Ltd, 2014

This document is at http://www.rogerclarke.com/DV/SRD14.html

Introduction

The Panel was led by a presentation by Kirstie Ball of empirical work within the IRISS project, on ANPR, credit scoring and Neighbourhood Watch, conducted in four different European countries.

Her talk's basic theoretical premise was that while surveillance practices can be deployed to counter threats and risks and to prevent harm occurring, they also create potentially harmful consequences.  The reliance of surveillance practices on proprietary information infrastructures can make surveillance processes intransparent and unaccountable to democratic scrutiny in cases where harms occur. It is argued that the traditional venues of democracy, where citizens and institutions engage, participate in debate and create governance structures, cannot be mobilised without widespread awareness of the harms and consequences of surveillance practices by both citizens and institutions. This awareness is lacking in most cases. The talk also revealed the deep historical, social, political and legal antecedents of the current state of affairs.

There were three Panellists, the others being:

• Simon Chesterman (Dean of Law, National Uni of Singapore, and of the SURVEILLE project)
• Christian Hawallek (Leibnitz Uni of Hanover and the RESPECT project)

My comments focusssed on a couple of concerns I have about common misunderstandings and the need for active and coordinated effort.

1. There are Five Dimensions of Privacy, Not One

There is a very strong tendency in discussions to use the term 'privacy', but only actually refer to 'data privacy'. Reduction of the scope in this manner undermines the effectiveness of policy analysis.

Different approaches are evident in the literature. I distinguish 5 'dimensions' of privacy, whereas Friedewald & Wright, for example, identify 7 'types'. My five dimensions (original version, recent version) are:

• Privacy of the Physical Person
• Privacy of Personal Behaviour
• Privacy of Personal Experience
• Privacy of Personal Data
• Privacy of Personal Communications

Extraction of biometrics or DNA from an individual, and even the imposition of compulsory vaccination or blood transfusion, may give rise to data, but they involve privacy concerns quite separately from data protection issues. A panoptic effect on behaviour arises from the presumption that visual surveillance is being conducted whether or not data is actually collected. Similarly, belief that electronic surveillance is undertaken has a chilling effect on individuals' experiences, such as their choice of reading, viewing and social networking, whether or not data is accessed or even collected.

The 'data protection' model, nomatter how sophisticated, is far too limited to address these dimensions. We must escape from the narrow, conventional model of privacy as 'data privacy'.

2. Democratic Institutions and Processes are Deficient

Democracy as it currently exists is merely 'better than the alternatives'. There are some serious failures in the design of democratic institutions and processes. They give rise to fragility. When nations are subject to pressure, the fragility creates the likelihood, rather than possibility, that civil freedoms will be lost. The kinds of pressures that are exploited to undermine democracy include not just warfare, insurgency, and random acts of violence, but also more mundane circumstances such as an influx of refugees, or a shortage of key resources such as water, national disasters arising from earthquakes and major weather events, and even visits from foreign heads of state, and major sporting events.

A critical weakness in this regard is the failure to conduct assessments of proposals that have potentially serious implications for freedoms. There is seldom a constitutional or even a legislative requirement that proposals be subjected to assessment. Even where Offices of Technology Assessment (OTA) exist, they have little influence. Unsurprisingly, studies of surveillance schemes continually find that rational norms for assessing proposals have been breached.

Particularly where ideas in good standing can be invoked, such as 'national security' or 'counter-terrorism', but even 'organised crime' or 'the war against drugs', determinations are almost entirely through political processes. Politics may be exciting for the small numbers of people who have an invitation to the 'party'; but substantive factors play a diminishingly small role in the process.

It can be reasonably argued that rational management science should not be the sole arbiter of important decisions. On the other hand, the denial of a role for reason represents abandonment of the progress that five centuries of science has brought us. In order to cope with surveillance, society urgently needs to overcome this major weaknesses in our democratic structures.

3. Establish and Apply a Body of Principles

The three projects that are represented at this event have provided considerable depth of discussion. They have also made many suggestions about the characteristics of effective evaluation process for potentially harmful proposals. Yet we still lack a simple structure of assessment principles.

I'm an instrumentalist. I want to get things done, not just talked about, however insightfully. I believe that a straightforward expression is feasible and necessary.

The Australian Privacy Foundation applies a set of 8 Meta-Principles:

• Pre-Conditions
  • Evaluation (must be undertaken)
  • Consultation (must be part of the evaluation process)
  • Transparency (is necessary - early, during and later in the process)
  • Justification (must be provided, to demonstrate that the measures are necessary)
• Design
  • Proportionality (must be demonstrated, i.e. that the measures are commensurate with the need)
  • Mitigation (must be built in, in order to minimise harm)
  • Controls (must be built in, to ensure that practices reflect policies and procedures, that non-compliance is subject to sanctions, and that sanctions are applied)
• Review / Audit (to re-evaluate, periodically and when needed, in order to drive adaptation, and enforce withdrawal of no-longer-justified schemes)

We need to organise the outcomes from these three studies, from other elements of IRISS, and from SURVEILLE and RESPECT, within such a common framework. We then need a political movement, in order to force proposals to be subjected to the resulting body of Principles.

This means placing constraints on the capacity of parliaments to enact legislation without prior evaluation processes that are compliant with those Principles. Such a proposition is not radical. Precedents exist in which legislation is subject to prior assessment of budgetary impacts, and of financial impacts on organisations that are subject to new regulatory requirements. The Principles also need to be applied to schemes that are developed by government agencies within existing legislative frameworks, to public-private partnerships, and by corporations.

Anything less than prior assessment against an appropriate body of principles will leave our democracies in their present, very fragile state.

Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.

The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax. From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 65 million in early 2021. Sponsored by the Gallery, Bunhybee Grasslands, the extended Clarke Family, Knights of the Spatchcock and their drummer

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