Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Beyond “The Right to Privacy”: A New Look at the Surveillance Debate (2)

Brad Littlejohn


By Brad Littlejohn

October 4, 2013

This is the second article in a two-part series.

In the previous installment, I highlighted some of the problems with the language of the “right to privacy” in the debate over government surveillance. Indeed, the language of “rights” tends to reinforce the individualism of the language of “privacy,” focusing attention on the abstract claims of the would-be victim, rather than the concrete responsibilities of the would-be aggressor.

What if we spoke rather of a duty to respect one another’s privacy?  While this may seem logically equivalent to a right to privacy, it helps foreground the interpersonal element, hints at the need for circumstantially-dependent application, and places the initiative on the would-be-intruder—all important emphases. It also enables us to quickly recognize the duty in question as an instantiation of the more fundamental duty of justice, often summed up in the Golden Rule: “Do unto others as you would be done by.” 

Of course, the Golden Rule says both too little and too much.  Too little, because others may not want the same things, in the same way, as we do, and we should not impose our own preferences on them. Too much, because sometimes others may want things they ought not to—i.e., to harm others—and in such cases justice must obey a higher law in order to do unto those others as they ought to be done by. This latter qualification brings us to the problem of surveillance. 

From the perspective of everyday life, my duty to respect my friend’s privacy means not listening in on her personal conversations with other friends. But what if I have good reason to believe that there is something sinister in these conversations, that my friend is scheming to do harm to herself or others? Then my broader set of duties to do unto others might lead me to listen in after all, and take other measures to monitor what was going on (although my concerns might prove unjustified, and mere good intentions would not necessarily exonerate me for my intrusion).

Depending on my relation to the person, it might take more or less to justify listening in: if I were a stranger, it would take more; if I were an authority of some kind, it would take less. Indeed, this intuition—that an authority figure is more likely to be justified in intruding on someone’s privacy to prevent harm—is strong enough that we would usually counsel a worried sibling to tell a parent, or a worried friend a pastor, perhaps, or a worried stranger to tell the police, if they are suspicious that someone is up to no good.

Does this intuition suggest that the normal duty to respect another’s privacy does not apply to authority figures, since they are charged with the task of oversight?  Not quite. While a good father might follow his son’s movements if he had reason to believe he had fallen in with a gang of drug-dealers, we might think there was something wrong with a father who made a routine practice of listening in to all his children’s conversations. This we would consider a violation of the rule of justice according to its other pithy formulation: “giving to each one their due.” Those who have merited trust should not be treated with distrust. Clearly, then, we need to look more closely at this “oversight” concept.

Authorities are constantly in danger of confusing two distinct responsibilities: their routine oversight of public order and their correction of injustices. Authorities are supposed to keep an eye on those under their authority to ensure accountability, stability, and swift resolution of problems. But this oversight is normally confined to the “public” actions of their subjects, undertaken in the context and view of the community. When authorities become aware of an injustice, they have a responsibility to get to the bottom of it, and if possible stop it. While their powers of investigation and correction may be quite extensive, these powers are essentially reactive, not proactive.

My point here parallels the one in my two-part essay on drone strikes on Capital Commentary a few months ago: the task of political judgment must be retrospective; it cannot attempt to preempt all threats. The perceived scandal of the Snowden revelations lies not in the violation of an abstract “right to privacy,” but in the perceived indiscriminate treatment of all Americans as wrongdoers or potential wrongdoers who need to be closely monitored.

Of course, the case is considerably more complicated than that. We must ask important questions about what aspects of our communications in the age of the mobile phone and the internet count as “public” actions subject to “routine” oversight, and how intrusive the data-gathering in question is. And as we reflect on these questions, we need to enlist expertise from within the intelligence community. But we should always insist that our authorities qualify the criterion of security with that of justice, which discriminates between the guilty and the innocent, the suspect and the trustworthy, rather than simply appealing to the urgency of “security” as the unquestioned justification.

- Brad Littlejohn has just completed a Ph.D. in Reformation political theology at the University of Edinburgh. He writes frequently for a number of blogs (especially his own) on the history of Christian ethics and political thought and on contemporary Christian perspectives on politics and economics.

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”