Lex Orwell: When is a Surveillance Society OK?

The current Swedish debate about a bill to
allow military intelligence to intercept phone and Internet
communications has produced something most unSwedish: a grassroots
"blogquake" that has upset the staid logic of traditional politics. Given the threat that the bill may fall because of MPs disobeying their party whips
(normally unheard of in Swedish politics) there is a real chance the bill is even
withdrawn at the last minute. But even if it is, this is
an issue that will return again and again: exactly how much
information should the government be allowed to gather and for what purposes?

The motivations for the bill are familiar:
to fight terrorism, international crime and threats to the
infrastructure. However, in order to
get the information needed the National Defence Radio Establishment
will monitor all Internet traffic that enters or leaves the country.
Since even the most cursory use of a computer is likely to produce such
signals (e.g. doing a Google search) it would in practice mean
monitoring the Swedish net – as well as any foreign information that
happens to be routed through it.

While the agency says it will destroy any
intercepted information not related to investigations, this may prove
hard in practice since the boundaries of investigations are by their
nature blurred and the effort to separate relevant from irrelevant
is hard. There are even some accusations that the agency has
already illegally stored information about foreign citizens that is
outside its remit.

The key problem is that the proposal, like
many other antiterrorism proposals, do not appear to be increasing
the efficiency of finding and apprehending terrorists. It is a form of "security theatre"
where the politicians can show they are Doing Something About It and a way to
implement changes that make life easier for government agencies – all
protected from criticism by the biasing effect of the concept
‘terrorism’. As long as the motivating concept is such that no sane
person would defend it, resisting such proposals is hard.

Meanwhile the natural bias among
politicians and government personell is to downplay the risk of misuse: they
know that they are nice people with the best of intentions. It is telling that the proposal includes provisions for oversight of how the
intercepts are used by government agencies – except that the cabinet and its
administration do not require any permission or oversight for
their use of interception. But even if the Swedish government were
completely reliable at this moment, there is no reason to expect it to
be in the future.

Sweden
had compulsory sterilization laws until 1976. During the cold war the official neutrality policy was
actually a lie. The cabinet helped set up an illegal intelligence
agency and did its best to cover it up in the 70’s. In the late 80’s government ministers were
involved in setting up a private investigation
outside the legal system (which was revealed when smuggling of
illegal wire-tapping equipment came to light). And so on. This shows that
even in the relatively clean Swedish government circles there has
been misuse of power, a desire to gain information without
oversight and to cover it up, and morally dubious actions possibly sincerely
motivated by "public good". Given this history there is reason to think
that future governments may be willing to misuse surveillance
powers, even if they do not do it for any personally corrupt reasons.

We also know that social values change over
time. We are often amused or horrified by the morality of people in
the past – just as they would regard our morality as corrupt. Today
honor is not regarded as a valid reason for most decisions in the
West, while we allow women to vote, contraception and allowing the
government to read gentlemen’s letters. This means that future governments
will likely be guided by values we currently would find deplorable
or abhorrent. Data retention means our current actions will be judged by
them, and we might very well be held legally responsible for
doubting climate change, eating meat or privately arguing against greater
government power.

There is nothing inherently wrong in giving
broad power and access to government agencies as long as they are
acting for legitimate goals, doing it in an efficient manner and not
misusing their powers. Fighting terrorism is certainly a
legitimate goal. But the current proposal appear to fall far short
on controlling the efficiency and preventing the misuse.

From an ethical standpoint a
proportionality principle appears to be the best approach. Increased government
intrusiveness must be balanced by increased citizen control over the
government. Privacy costs must be balanced by increased safety (or other)
benefits – and these tradeoffs must be possible to check and
rebalance.

As a modest proposal, why not apply the
same form of interception to the National Defence Radio Establishment?
All Internet and phone traffic of the organisation would be
monitored and recorded, ensuring that it actually fulfils its purpose and
does not misuse the information. An outside oversight agency
will have full access, ensuring that misuse will eventually be
found and the accountable people held accountable. Ideally of course
all personal communication inside the agency should also be monitored,
but we will just have to wait about ten years before lifelogging technology will achieve that.

There are many obvious criticisms against
the above proposal, such as security risks, costs, privacy invasion and
that it would interfere with the activities at the agency. But
these are identical to the the criticisms against the original proposal:
if those can be overcome, then clearly these can be overcome too. If the benefits of the bill are so large as its supporters think, then it would be worth monitoring the agency (and perhaps the cabinet) to an equal amount – after all, the innocent have nothing to fear.