Public and private actors are aligning largely into two camps in respect to the controversy generated after recent press and whistle-blower reports on mass surveillance and secret data mining. This alignment by no means is transparent, and many will be surprised to see that there are both liberal (“progressive”) and conservative voices that don´t see “what the fuss is about.”
It is perhaps useful to break apart this problematic area to see what the real problem is. In my analysis, I see a Security problem, one based on perceived and/or real threats that are classified as “terrorism,” but there is also an Assurance problem, which is related to the increasing lack of confidence of the citizens in their governments, defence organisations and security services. And the problem does not stop there, because there is also an expanding concern around the role private organisations play in the collection and mining of user data. In this, third sense, there is also a Business problem.
People defending mass surveillance “do not see” and are “not concerned” with the recent revelations in The Guardian and The Washington Post. The essence of the argument is that if “you” have nothing to hide, then you should not be concerned. What this defence misses is that Privacy and Data Protection is not a personal-individual prerogative, but a political right of the subject or citizen.
Let me explain: While privacy arrangements and rules may also protect the individual (as a natural person) those arrangements and rights are part of the public sphere, i.e. they pertain to the subject-as-citizen, because they grow in the realm of social negotiation and political-historical context.
Privacy and Data Protection principles and rights ultimately protect the natural person, but these no not arise from the immediate context of the natural individual, and are instead the product of historical processes, political achievements, correlation of forces, economic and social development. In other words, Privacy and Data Protection rights and regulations are *social* products of hundreds of years of history and in particular of the separation of the private and public spheres.
Seemingly referring to some current Internet business models (based on data mining) advocates of mass surveillance say that we have “signed away” our personal information in many ways; but this only shows ignorance of the fact that private arrangements with private corporations are not (and cannot be) political arrangements. Hopefully individuals will be informed of what they are doing when they release personal information to the data mining machinery of –for now– dominant Internet business models.
How can private commercial arrangements become basis of the law of a nation and much less global law? Equally false would be the assumption that public awareness of mass surveillance will not or cannot affect internet-based business.
Hence, it is completely unwarranted to assume that a particular (individual) opinion on the lines of “I have nothing to hide” or “I don´t care if the police is listening to my phone calls” may serve remotely as an argument in support of mass surveillance. In the same way, political leaders are in the wrong in proposing to the citizenry that we cannot have 100% security and 100% privacy at the same time, as it were a decision that can be transferred by the individual citizen to the State.
In other words, Privacy and Data Protection are not subject to “individual opinions” of fear either in relation to political violence or State oppression.
These rights cannot be transferred or relinquished because they are political rights in the same way that there is no sane legal order that would stand if people could sign away individually their freedom and become slaves.