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When Less is More: Privacy, Security and Civil Liberties from Johannesburg to Washington
By: Jena McGill

January 23, 2007


Events deemed “national emergencies” have long provided justification for infringing civil liberties. In some instances, “security concerns” have led to the complete revocation of even basic rights, as was the case during the World War II internment of more than 22,000 Japanese Canadians on the basis of an alleged security “threat.” As we are well aware, “security” against the “terrorist emergency” has become the unofficial trump card of the post-9/11 world.

As a result of ballooning security issues and the threats that security “solutions” often pose to privacy interests and civil liberties, understanding the tension between privacy and security has grown both increasingly important and progressively more troublesome. In response to escalating levels of unwelcome surveillance and the scores of other unsolicited, privacy-invasive practices that pepper our day-to-day lives in the name of security, privacy advocates continue to call for appropriate limits on privacy-eroding laws and technologies that threaten to eat away at our privacy interests and civil liberties.

In the quest to define and promote these limits, one of the greatest challenges for the privacy community is answering the “how to” question when it comes to balancing privacy-related values with other, equally important but sometimes competing interests and rights. The privacy versus security contest is perhaps the most topical and certainly one of the most difficult tensions with which we must currently come to grips. The two ideals are often pitted against one other as rivals in an “either/or” dichotomy. An increase in security will necessarily come at a cost to our privacy and civil liberties – a cost that the privacy community generally deems too great to pay....or is it?

Earlier this month, news headlines hailed the success of a massive 350-camera surveillance system of closed circuit televisions installed throughout downtown Johannesburg, South Africa in 2001 [1]. Branded as one of the most dangerous cities in the world, Johannesburg credits the downtown cameras with drastically reducing the city’s crime rate - generous estimates cheer an 80% decrease in crime following the installation of the surveillance system. Prior to the introduction of downtown surveillance, Johannesburg’s high level of crime was blamed for stifling the social and economic life of the city, and virtually paralyzing its population. With crime now on the decline, Johannesburg officials anticipate that the city’s economic and social life will rebound and it will become a thriving metropolis and business centre. Extensive, privacy and anonymity-eroding surveillance has, ostensibly, saved the city.

Contrast Johannesburg with the latest round of U.S. law-making “in the name of national security.” The federal government is currently finalizing a plan to add to the FBI’s system of federal and state DNA databases the genetic codes of tens of thousands of illegal immigrants, captives in the “war on terrorism” and others accused but not convicted of federal offenses [2]. In most states, a person must be convicted of a crime before his or her DNA is added to the national system. The new plan, however, would apply to any U.S. citizen arrested under federal authority and to all non-U.S. persons who are detained for any reason at all. (The majority of the latter group will inevitably be illegal immigrants caught at the border or rounded up by law enforcement after entering the country.) This plan strikes a balance that has become typical of U.S.-policy making post 9/11: less privacy in the name of more security. Predictably, proponents allege that increasing the pool of DNA profiles available to law enforcement officials will assist in solving crimes and will make it easier to identify and track potential “terrorists.” Opponents of the plan, including the privacy community and the American Civil Liberties Union (ACLU), allege that mass seizures of biometric information are a gross violation of individual privacy and erode basic civil liberties.

The impetus behind both the Johannesburg surveillance system and the U.S.’ DNA collection plan is not dissimilar – to prevent crime and increase the efficiency of law enforcement [3]. In the latter example, as the ACLU points out, there is a very high risk that the collection and retention of DNA by government agencies will have a seriously detrimental impact upon individual privacy and civil liberties. The former case, however, is less certain. The privacy-invasive surveillance network appears to have impacted positively upon the rights of Johannesburg’s citizens by ensuring a higher degree of safety in the city’s downtown. Individuals are now able to participate in their communities and more fully enjoy their rights and freedoms. While the dialogue of the privacy community often focuses upon the negative effects that privacy-invasive technologies can have upon rights and liberties, the Johannesburg example asks us to consider how such technologies and practices may in fact work to further civil liberties and enhance the enjoyment of rights.

When we talk about privacy, it is always necessary to ask whose privacy is at stake and under what kinds of circumstances. These questions may yield very different answers depending on the context and the relative weight of privacy as against other relevant values and interests in a given situation. In the clash between privacy and other interests, and particularly when it comes to striking a balance between privacy and security, the North American privacy community often adopts a “more privacy equals more liberty” standpoint. We know, however, that this equation does not always hold true. Feminist scholars, for instance, have highlighted the ways in which privacy has been used as a shield to cover up the degradation and abuse of women and others in the private sphere. Too much privacy is not only possible, but can lead to deeply harmful outcomes.

The concern at the opposite end of the spectrum, of course, is that a right once ceded is eroded. Privacy infringements may be subject to a classic slippery slope argument – give away a little and you risk losing a lot. Are there bright line differences between gratuitous invasions of privacy and necessary sacrifices made in the name of some “greater good”? In the abstract, it is easy to agree that the concept of privacy is important and should be defended. The ways in which privacy’s theoretical importance translates into diverse real world situations is incredibly varied and at times conflicting. This makes privacy a necessarily qualified concept, and means that it is critical to contextualize its relative value within the larger spectrum of competing and complementary values that exist in a given situation.

The relative nature of privacy includes a number of considerations. Most would agree that while almost all societies appear to value privacy to a certain extent, there is a great deal of disparity in the ways in which privacy is sought and obtained, and in the levels of privacy to which a given culture or society aspires. A related inquiry is whether or not there are any aspects of life that are innately private and not just conventionally so. One of the ongoing difficulties in defining privacy and calculating its weight is that it is strongly relative and inevitably contingent on factors including economics, social norms and the technology available in a given socio-cultural domain.

There is perhaps a third dimension to the relative nature of privacy that depends upon basic human needs. The citizens of Johannesburg have, willingly or otherwise, sacrificed a great deal of their privacy and anonymity to the downtown surveillance system. Without surveillance, however, everyday activities carried an increased risk as a result of the city’s high crime rate. When basic needs, like physical safety, are not being met, as was the pre-surveillance situation in Johannesburg, privacy may be accorded less weight in balancing a society’s needs.

This idea resonates within the framework of Maslow’s Hierarchy of Needs and related schemes designed to explain human needs and desires. Such hierarchies propose that humans strive to meet successively higher psychological needs like esteem, respect and self-actualization only as their basic physiological needs, including physical safety, food and shelter, are satisfied. The basic concept is that the higher needs only come into focus once all the needs lower down in the pyramid are satisfied. Where does privacy fall in the Hierarchy of Needs? It is possible to argue that privacy is or should be located somewhere above basic physiological needs. When the necessaries of life are not fulfilled, privacy takes on a relatively diminished importance.

We spend a great deal of time thinking, talking and writing about how to define and defend this “thing” called privacy. One of the critiques often leveled against privacy is that its definition is subject to a patchwork of meanings, making it difficult to “pin down” and complicated to use and protect. At the end of the day, maybe this is not a critique at all, but recognition of privacy’s relative and multiple character and its different meanings, uses and levels of importance around the world. Johannesburg’s surveillance project reminds us that “less may sometimes mean more,” and that in our own privacy dialogue we must continually recall the context within which we live and work.

[1] CBC/Global News Bit, (January 6, 2007).
[2] See Richard Willing, “Detainee DNA may be put in Database” USA Today (January 19, 2007), online: http://www.usatoday.com/news/washington/2007-01-19-detainee-dna_x.htm.
[3] I acknowledge, but do not address here, the critical differences between the nature of the information being collected in Johannesburg and that proposed in the U.S. Capturing a video image via surveillance and collecting a genetic code through mandatory detainee DNA collection represent two distant points on a spectrum of invasive data collection practices, not least because of their differing potentials for misuse.

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