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The Most Delicate Balance of Our Time

13 February 2015

Public atrocities always attract some kind of political reaction. Generally, the more brutal the atrocity, the harsher the reaction. It is understandable from the perspective of political responsibility. So when defenceless people are mercilessly attacked by gunmen as punishment for their satirical views, a very visible reaction is to be expected. However, political reactions to grave situations need not only visibility but measured thinking and careful decision-making. The reaction to a violent and criminal act can often have more far-reaching implications than the act itself, leading to an escalation of violence. At the same time, doing nothing to protect citizens from harm is not a responsible option. As with many political decisions, securing public safety is a balancing exercise of robustness and restraint.

The most visible response to the current public security threat faced by the West has been to increase the level of vigilance. Political decision makers have been quick to justify all sorts of technological methods to capture, retain and penetrate communications and the data around them, as a way of spotting clues that will help prevent future violent acts and atrocities. This amounts to a sacrifice of rights and freedoms which, according to the political forces in charge, is necessary given the circumstances. The question is: to what extent does security trump freedom? Or more specifically, what degree of privacy intrusion by the state is justifiable in order to keep assassins at bay? As difficult as it may be, getting the answer to this question right is essential for the future of democracy, which somewhat ironically, is also what we are trying to save in the first place.

As democrats, we must acknowledge one thing: an excessive degree of intrusion into our lives and our privacy is a violation of human values and an intolerable outcome. Our privacy – even for those who are virtuous enough to have nothing to hide – is part of what makes us human because it is part of what makes us free. Having certain views or making certain choices without interference often relies on privacy. That is why citizens’ votes at democratic elections are secret. Take privacy away and our ability to make truly free choices will disappear. This is of course acknowledged by every modern convention and charter of human rights. In making this point, I am not calling for the supremacy of rights over the duty to safeguard citizens. It is simply an argument to justify the crucial need to achieve the right balance between privacy and public security.

In a democratic society, it is not possible to have one without the other. Freedom without law and order turns into injustice and chaos. Public and national security without privacy leads to tyranny. The challenge faced by democratic governments in Europe and elsewhere is how to ensure security without stifling privacy and hence freedom. Addressing this challenge requires a genuine recognition that both aims – protecting citizens and preserving the right to privacy – are equally important and vital. The moment we start giving up on privacy for the sake of national security is the moment that democracy starts to suffer.

In the context of communications data and law enforcement, we must be prepared to accept – as the Court of Justice of the European Union (CJEU) did – that the retention of that data as such does not adversely affect the essence of the fundamental right to privacy. It is a matter of justification and proportionality. Justification is about rigour, not hype. I cannot think of a situation where the rigorous use of a ‘Privacy Impact Assessment’ would be more apt than this one, as this process would drill down into the genuine effect that mass data retention may have to prevent terrorist attacks and other serious crime. In terms of proportionality, last year’s CJEU decision on this issue identifies the factors that should be taken into account: scope of data capture, triggers for access, retention period, oversight and geographical controls. Apart from the last one, which goes against today’s unstoppable data globalisation, these factors will be critical in making the retention of communications data compatible with democracy.

Thanks to technological development, humans have perfected the practice of surveillance. It is a trait of life in the 21st century, which makes it all the more important that governments exercise restraint on their ability to gather information about their citizens. This restraint can be shown by truly listening to all sides of the debate, by establishing effective channels of oversight of their own powers and by not forcing the providers of communications technologies to become snitches. As urgent as it may be to deploy the right mechanisms to detect terrorist plots, it is no less important that we find the way of preserving our right to privacy and, with it, our liberty.

This article was first published in Data Protection Law & Policy in January 2015.

Authored by Eduardo Ustaran