Abstract
In this article, we critically scrutinize the principle of proportionality when used in the context of security and government surveillance. We argue that McMahan’s distinction from just warfare between narrow proportionality (cases in which a threatener is liable to suffer the harms inflicted upon him in the course of surveillance) and wide proportionality (involving harms inflicted on non-liable individuals) can generally apply to the context of surveillance. We argue that narrow proportionality applies more or less directly to cases in which the surveilled is liable and that the wide proportionality principle applies to cases characterized by ‘collateral intrusion’. We argue, however, that a more demanding criterion than the lesser-evil justification that wide proportionality frequently entails is necessary in cases characterized by intentional intrusion upon non-liable individuals (e.g. some cases of mass surveillance). The distinction between foreseeing and intending intrusion into the lives of individuals who are not liable has not previously been specifically addressed in discussions concerning surveillance ethics. This specification is thus increasingly important due to the general growing tendency for adherence to the precautionary principle and policies aimed at anticipating criminal acts before they are committed. Preventive surveillance of non-liable actors is considered an important instrument for obtaining this aim and thus calls for moral scrutiny in terms of permissibility and proportionality. We suggest the concept ‘wide proportionality +’ which applies to cases of intentional intrusion of non-liable individuals.
Notes
In this paper we understand ‘surveillance’ quite broadly as “… any systematic and routine attention to personal details, whether specific or aggregate, for a defined purpose” (Lyon 2014:2). Our focus in this paper is on non-consensual surveillance.
Some might take an (implausible) absolutist view on the right to privacy, in which case the weighing metaphor involved in proportionality seems slightly inapt, though still applicable, given that however great the moral benefits involved in surveillance are, they will never outweigh the moral costs, i.e., the violation of a non-infringeable right to privacy.
We have not included the so-called objective list account of well-being, noting that typical elements in objective accounts of well-being do not imply that being surveilled detracts from one’s well-being, e.g. it does not reduce the extent to which one can have deep personal relations to others, although, arguably, some elements, e.g. self-knowledge, might be different to the extent that surveillance has real effects on one’s life (cf. Nathan 2017, p. 370).
Cf. the so-called “chilling effect” described by e.g. Macnish 2015, p. 544. This effect is not narrowly tied to wrongdoing. It might also exist in a case where, based on ludicrous conspiracy theories circulating on the internet, people believe falsely and unreasonably that they are being surveilled by state agencies. Setting aside the wrongfulness of spreading unfounded anxiety-provoking conspiracy theories, this is a case of wrongless harms (as opposed to harmless wrongs).
Cf. Bellaby 2012, p. 96.
Of course, it might involve all three.
The wronging reply is not reducible to the interest reply, because, arguably, certain wrongs do not correspond to any interest not reducible to an interest in not being wronged, e.g. one might think that someone can be wronged by people secretly taking naked photos of them even if they are not particularly bothered by people seeing them naked in ways that do not involve any wrongdoing.
Macnish (2015) is an exception.
Not ‘least demanding’ logically speaking. Weaker, and utterly implausible, proportionality requirements state that the moral benefits must be close to equaling, or even a little smaller, than the moral downsides.
An anonymous reviewer suggested that an assessment of whether a harm is necessary is part of an assessment of whether it (or the intervention which constitutes or causes it) is proportional. On this view, no harm is proportional if the same benefits can be achieved through an intervention which is less harmful (cp. Hurka 2005, p. 38). Here we shall follow the conventional view and say that proportionality is a necessary condition for harmful intervention and that the requirement that the harm is necessary to achieve the benefits is a different and additional necessary condition for harmful intervention.
Admittedly, just war theory also considers preventive wars, i.e., wars waged to prevent a future unjust threat from materializing. Generally, just war theorists are very skeptical of the permissibility of such wars (Walzer 1977, pp. 85–90).
Nathan (2017, p. 381) argues that cases with no crime or ‘only possible future threats’ should be considered ‘analogous to harming the innocent bystander in exchange for a significant benefit’. We return to this claim concerning the moral justification of harming innocents later.
There could be people who are implicated in a threat, but who have not done anything that would reasonably lead them to think that others see them as a threat, e.g. because they are very good at concealing that they in fact pose a threat. Still, we think there are far fewer people of this kind than people who are not implicated in a threat but who do things that might lead others to reasonably believe that they are, e.g. by visiting extremist websites out of curiosity.
An anonymous reviewer questioned the relevance of the notion of intention in the context of (mass) surveillance on the ground that, typically, surveillants have little concrete ideas about which harms surveillance will prevent and, thus, typically do not intend the benefits involved in surveillance. In response, we note first that this is compatible with certain surveillance-related harms, e.g., violations of privacy, being intended, in which case intentions might indeed be relevant to the proportionality of surveillance. Secondly, an effect, including a good effect, might be unintended under a very specific decision (e.g., foiling a terrorist attack on Melbourne city center Christmas Day 2016) while intended under a less specific description (e.g., foiling terrorist attacks in Australia).
Cp. (Evans and Lewis 2013).
Things might be different in a variation of the first case, where the intrusion of the villain is intended as a means of scandalizing the child pornographer, who is also a political opponent of the regime, and where stopping the distribution of child pornography is a mere side-effect.
Macnish argues that when a surveillance activity intrudes on innocent bystanders, the relevant moral assessment should conform to the doctrine of double effect. He does not specify how this should be done, and he does not differentiate directly between intentions when harming the non-liable (Macnish 2015, p. 541).
Because the individual is liable, collecting information about him is not a morally objectionable means, in keeping with some interpretations of the doctrine of double effect. A similar point applies to the ringleader in the example in the previous section.
Hence, the case is analogous to that of a tactical bomber who bombs a factory with not very precise munitions, foreseeing, but not intending, that some bombs will miss the factory and hit civilian buildings etc. instead.
This is a highly contested topic within just war theory. Permitting intentionally harming of non-liable individuals brings just war theory close to endorsing terrorism (McMahan 2009a).
Admittedly, we do not defend the claim that individuals have a prima facie claim to having their privacy protected. Not everything can be defended in one article, and we simply note that the view that there is such a claim (even if reducible to other claims) is generally accepted (Rössler 2005).
Some might object that the good of avoiding terrorist attacks is incommensurable with the good of not intruding on people’s privacy such that one cannot weigh them one against the other. This is an important worry. However, it applies also to standard notions of proportionality, and not just to wide proportionality+, and accordingly we bracket this objection here.
As noted previously, this is not to say that any individual act of surveillance involved in these programs are harmful.
Partly due to the complexity of the matter, and partly due to the fact that much of the data that researchers would need to access to analyze the effectiveness of mass surveillance is confidential, inevitably, assessments of the sort offered here must be very tentative.
We have not considered how the identity of the expected beneficiaries of the intended intrusion bears on our specification of the relevant proportionality principle. One might think that if those non-liable individuals who are harmed or wronged through mass surveillance are the very same individuals as those who will enjoy the relevant morally relevant benefits from surveillance, the relevant proportionality requirement is less demanding than if these benefits accrue to different individuals to those who are harmed or wronged. It may take fewer moral benefits for a mass surveillance program of US citizens to protect US citizens from terrorist attacks than a mass surveillance program of Saudi citizens to protect US citizens from terrorist attacks. We leave this complication for future work on the ethics of surveillance.
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Rønn, K.V., Lippert-Rasmussen, K. Out of Proportion? On Surveillance and the Proportionality Requirement. Ethic Theory Moral Prac 23, 181–199 (2020). https://doi.org/10.1007/s10677-019-10057-z
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DOI: https://doi.org/10.1007/s10677-019-10057-z