Those who sacrifice Franklin

Written by Nicholas Barrett on . Posted in Current features, Features

BenFranklinDuplessis‘Those who sacrifice liberty for security deserve neither’ is an old truism attributed to Ben Franklin. This quote has been in healthy circulation since the terrorist attacks on New York in 2001 and has done much to polarise the debate around privacy and civil liberties. Luckily it is a simplification what he actually said; after all we all sacrifice a little liberty for a little extra security every time we are forced to stop at a traffic light. What Franklin actually wrote in 1755 was that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Here the key term is “essential Liberty”, which leaves plenty of room for compromise and discussion.  The problem with the word “essential” is that it may be completely subjective. (Franklin himself owned seven slaves for much of his life; he later freed them all and became a prominent abolitionist.) So what is an essential liberty and how then should we regard non-essential liberties?

In an attempt to tackle this classic dilemma, teams of European researchers have set about to analyse the legal and ethical implications of surveillance, including the kind of mass surveillance programs that were revealed by the American whistle-blower, Edward Snowden in 2013. Privacy is a perfect example of compromised liberty. We all have to balance it on an almost daily basis. The SURPRISE project, funded by the European Commission and involving the EUI, has consulted citizens across Europe in ways that attempt to transcend and escape the old Franklin dichotomy.

Professor Martin Scheinin was heading the EUI team in SURPRISE but also coordinates another project, SURVEILLE, which has sought to understand and explain the nature and extent of European government surveillance through parallel expert assessments performed by technology specialists, ethicists and lawyers. He has previously served as a UN Special Rapporteur on Counter-Terrorism and Human Rights and will discuss the group’s findings at the State of the Union conference. Scheinin is keen to warn of the dangers of a discussion dominated by security “in the public debate, fed by politicians, we have the abstract metaphorical balance; what’s more important the rights of an individual or security for everybody? And the balance will always be struck the same way, in favour of security if the question is posed that way.”

Professor Martin Scheinin

Professor Martin Scheinin

Since the rise of the Islamic State (IS), Europe and America have been on high alert for a so-called “lone wolf” attack in the west. These nightmares were justified during the attacks on Charlie Hebdo in Paris, which along with the coverage of IS, has informed the debate regarding surveillance in the run-up to American’s re-negotiation of the infamous Patriot Act. (The legislation which paved the way for the NSA’s Orwellian overseas expansion.) This is where Scheinin believes the SURVEILLE project could be helpful. “We’ve developed a more analytical and multidisciplinary framework actually trying to measure how to score surveillance methods as to whether they actually deliver security and at what financial cost, how to map and grade the ethical concerns that result and how to measure the intrusion into privacy and other human rights. In short we’ve developed a three-dimensional method of measurement.”

So if we quantify our way back towards Franklin, from a smarter and more informed position, can we better answer the question? Does the cost to our collective liberty justify the extra security our governments claim it will deliver? Scheinin, it seems, is not in the business of certainty. “Our answer is that there is no general and automatic answer to that question, you can’t simply say that because intrusion is bigger than the benefit to security that privacy should win, but we do say that when the intrusion is bigger than the benefit then we must go back to drawing board. In addition, we are able to demonstrate some red lines beyond which the ethical and human rights problems are too grave. One way to characterise those situations is to say that they represent the inviolability of essential liberty.”

When those red lines are not crossed, SURVEILLE recommends going back to the drawing board. The mission of the project is to alter to context and tone of the debate. For Scheinin, this may involve embedding the concept of privacy into our surveillance and security measures. “Privacy by design becomes the crucial factor because by introducing the feature of privacy by design into a surveillance technology, we can improve the technological benefits and reduce the human rights intrusion. So I think that’s the way a rational discussion of proportionality should go.” Articulating an agreed vision of limited surveillance and establishing a benevolent regime of trusted watchmen won’t happen overnight. In the mean time learning how to best advance the discussion of this timeless negotiation is vital because it certainly won’t be going away.