People will trade privacy for security more readily than commentariat thinks

On The Nation recently, I speculated that people might trade privacy for perceived security more readily than the commentariat think.

I suspect that privacy is a recent pre-occupation of academics and lawyers because it gives them a new field in which to boss people (particularly business people) whether or not the public in whose name they claim to act would actually make the same choices if they knew the costs.

Among the reasons for that suspicion is the great mismatch between what people tell pollsters they worry about, and how most of us act. Though a few paranoids worry intensely, most ordinary people I know joke about surveillance, and allow collection of data by business without serious second thoughts. We are probably a bit more anxious about government data collection, perhaps because of well-founded suspicion that governments are much more likely than businesses to misuse date against us.

I thought I should see if there has been much recent  investigation of the topic. As it happens, there has. November 12 saw the release of a PEW survey reported here.

Daniel Solove’s summarised comment on it is here, and here.

I disagree with Solove only on emphasis and prescription, not the description of the issues.  I think he over-estimates the public anxiety about data collection per se, and is on stronger ground when worrying about misuse of it. In other words, intuitively when we trust the collectors to be only after us commercially, we are less genuinely worried than when we think data might be put to use by a coercive state, to persecute us, or to discriminate, or to permit covert or overt harassment.

To me it is idle to think that a democratic government will not be forced by public concern to collect as much information as is reasonably possible to prevent domestic terrorist attacks. That will ensue, lawfully or not, whatever the law says nominallly. Accordingly I would prefer to focus effort more on the achievable constraints on the holding of surveillance information, than on holding back the full tide of data collection.

As I said on Saturday, when you grow up in a small community, you assume general knowledge about you from most people you meet. Sometimes it would be great to know that it was better informed than gossip.  And we need to remember that we might be the first civilisation attempting to maintain mutual civility without a near universal belief that God, or angels, or gods, or other supernatural beings were monitoring and potentially holding us accountable for everything we’ve thought, let alone everything we do.

As a confirmed worrier about the likelihood of malign uses of power by the state, I suggest the following priorities:

a) first to strengthen the safeguards against surveillance data being unnecesarily accessible to politicians, to use against political enemies;

b) secondly to strengthen neutral  oversight of the  agencies that collect it, to ensure that they do not become septic independent centres of potential oppression and threat to democratic leadership (Hoover’s FBI);

c) thirdly, to ensure that transparency is general, to reduce the risks of improper privileged use of data collected by the state. the people should know most of what the state knows, if they wish, through open registers;

d) refining the Official Information Act to make it more reliably self enforcing (because the Ombudsmen are useless) but on the other hand increasing protection of communication that will be better if it is privileged, to stem the trend toward non-recorded communication and other devices to avoid the law;

e) making rights to correct more reliable;

f) beefing up protections against threats to longstanding free speech rights, including by ruling out the ‘right to be forgotten’,

g) reforming defamation law.

Former ACT MP and National candidate Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.