Privacy and what it means for Australia’s metadata laws and the NSA’s phone tapping

by on 6 May, 2015

By Edward James

"Edward James is just one voice among seven billion. To Edward, it matters not what happens to him personally but; rather, what you do with what you have read. For is an idea only worth the value of its speaker or should the merits of every statement be assessed in its own right?"

“Edward James is just one voice among seven billion. To Edward, it matters not what happens to him personally but; rather, what you do with what you have read. For is an idea only worth the value of its speaker or should the merits of every statement be assessed in its own right?”

The issue of privacy goes far beyond the government intercepting telecommunications. However, the relatively recent leak by Edward Snowden regarding the activities of the US government serves as a good lesson in privacy in general.

In regards to this specific issue, there were some people that actively endorsed the government listening in, some that did not care as they have nothing to hide and others that were concerned about what this type of surveillance means for civil liberties. It is fair to be concerned about the matter. In most cases, people are expecting to have private interactions to later find out that what they have communicated has been received by unexpected parties.

There are probably plenty of conversations that you have had where, at the very least, you would not like the subject of these conversations to know what was being said about them. Or, there have probably been a number of very personal things you have said about yourself that you only wanted a selected group of people to hear (like your doctor for example). It should be noted though that, even in these circumstances, there is still a chance of others finding out. Someone may overhear what is being said or an intended recipient may pass the information on to others.

What the mass phone-tapping scandal of the NSA did was raise the likelihood of people whose opinions you care about finding out information that may sour their opinion of you. For that is all that privacy really is, stopping others from having a complete/fuller picture about your life. There are things you do and say which you would prefer that some others did not know about.

To explain, ignoring how the NSA obtained the information for the minute, does it have any real world implications if a faceless person which you will never meet knows a few intimate details about you? The answer is no. The issue of privacy and domestic spying is a game of ‘what ifs’. What if hackers stole that information and publicly published it? What if the person who viewed this information knows the same people I know? What if I become famous and that person with the information uses it to bring down my fame?

The real reason privacy is a concern is not because others may find out about what you are doing, but because it is not socially acceptable to be your true self in a way where others are aware of what you are doing. The concern about privacy extends from a general human condition of valuing those that display an idealized version of themselves instead of the reality. It would take too long to go into the evolution of such behaviour and it is not overly important why this phenomenon exists. The point is, when you break it down – the concern about privacy is really about keeping up appearances.

For an actual example of such a thing, look no further than Facebook. People present self-styled versions of their life for others to see. Compare how many profiles there are on Facebook with, say, the number of status updates highlighting that someone is watching porn and masturbating. Considering the sheer amount of porn on the internet, the number of porn-related status updates is not in line with what is expected – should people actually present complete pictures of their lives.

Privacy in and of itself is a form of disinformation. To maintain privacy is an attempt to ensure that others do not know everything there is about you.  To look at it another way, imagine really early humans with no shelter, no private property and no clothes and so on. Let us say that you are amongst these humans. You now need to void your bowels. You can either do it in the open where everyone can see or behind a bush. All other things being equal and ignoring things like defecating where you eat, what do you choose?

In the example, if you do not want others to see you go to the toilet, it is you who has to manufacture privacy by going behind a bush. For a less on-the-nose example, imagine instead you are about to have sex with a fellow human of the group – do you do it in front of everyone or do you find a secluded spot? It is the same thing, in either case there is no entitlement to privacy. To say that there is; is to say that that others cannot explore, walk around or look in a particular direction of the open world at certain times because you feel uncomfortable.

Bring it back to today, imagine now that you have a house and a fence and so on. That said, you have decided to build everything out of transparent Perspex. Anyone standing on the street or next door can see into your property and see everything you do from going to the toilet to showering to touching yourself. It was your choice to build such a place and the people seeing into your house are freely standing on public or on their own private property. The only way to stop people seeing what you do is to have others force those that would look into turning their heads or by creating an exclusionary zone around your house.

To have an entitlement of privacy in such a situation would be to forcibly control the behaviour of others – even in their own homes. Not only that, but it is to do so for the sake of your own feelings. State entitled privacy is quite literally the limitation of the actions of others to spare your feelings. The problem on legislating by feeling will be discussed later, suffice to say, considering the gamut of emotions people can have, to legislate on the basis of feelings is to set a dangerous precedent.

What does this all mean for telecommunications privacy thought? Well now imagine you are in your regular house with its windows and its walls. One should note that people can still look into your windows as they would your Perspex house. More importantly, look at the principles of sight: a certain range of electromagnetic waves are generated or reflected off things and then these waves come across an eye which responds a particular way to these waves and by responding such a way it sends signals to your brain which then depicts the world around you visually.

The only way that people can see is if you are generating or reflecting light off of yourself or your personal belongings. It is in fact you who is broadcasting visual signals to others – regardless whether you intended to or not. If you do not want others to see what you are doing simply ensure that no light escapes the area that you are doing these things in. For who are you to say that others cannot interpret the signals that you personally are sending to them in the first place?

So now consider the electromagnetic waves one broadcasts when using Wi-Fi or mobile communications. You are creating something and distributing into through public and other people’s private areas. To demand that others not look at it is to try and prevent others from using what you have freely given them. Those unintended recipients of your broadcasts are under no contractual obligation with you to behave in a certain manner – they are not trading anything to receive what you provide. Perhaps the only people who could not look are those that provide the service in the first place – on the proviso that the initial service agreement included this as a term.

In reference to internet traffic, considering the internet makes use of public networks; to say that the government and all that use those networks cannot view your data is to demand private exclusivity in a public setting. It would be like driving down public roads and asking people not to look in your car windows. Just as the government can set up cameras and sensors to track all the details of those that use the roads so to can they do that with public networks – of which the internet is a part.

Another example would be like sending a postcard in the mail and asking those to not read what is written in plain sight. It would be an entirely different story though if a letter was in an envelope and the envelope was opened en route to its destination. In the latter circumstance, a product is being tampered without the agreement of the owner of said product. This goes back to the principle that privacy is your responsibility to manufacture.

If you do not want the government to look at how you use the internet, to intercept your telecommunications or for the public in general to see what you are doing, then you need to utilize methods of disinformation to ensure that only the intended recipients receive the message. For your Perspex house; tint your windows, for your letters; put it in a sealed envelope, for your mobile signals; set up an encryption system, for internet traffic; use private networks or proxies or, again, a method of encryption and for your Wi-Fi; set a password. Note though that none of these are foolproof and people can still attempt to overcome your obfuscation.

The only time you are ‘entitled’ to privacy is when the only way that people can see what you are doing is if they enter onto or alter your private property without your authorization. Which brings this to Australia’s metadata laws. These laws force private enterprises to engage in practices that they would otherwise have a choice about in order to track the telecommunications of the people. Considering that laws are not a matter of consent but coercion – if you do not follow, you are punished and you have no choice about the creation of said laws – these laws in particular do in fact violate the only privacy you are entitled to. The government is forcibly altering matters between private enterprises in order to see something it otherwise could not.

Note here though that this assumes that the ‘right’ of the government to interfere into the actions of others is in question. Should you simply accept that this institution is freely able to determine what others may or may not do; the metadata laws are fine. And, that is fine if you do think like that. But, on that principle alone it is very hard to then draw a line between what is acceptable and unacceptable interference without it being a case of ‘because I said so’.

If one does in fact question the authority of government and should that government be a public institution then the concept of public networks extend to government information. Just as you should be able to freely stand in public and view all the world around you from that position and just as those that operate or use public networks can observe all that goes through said networks, so does the public have access to all information held by public institutions.

To describe exactly what that does or does not apply to would take many thousands of words and would be incredibly dull to read – plus it would necessitate detailing the logic used to justify each case. Suffice to say that public institutions only contain public information. Please note though that this statement cannot apply to victims of crime as they do not choose to be victims. Nor can it apply to public/civil servants under orders [of, effectively, the public] where knowledge of those orders will place them at risk of direct harm – like undercover police officers, for example.

That said, the US government loves to classify things a secret on the basis of national security. Unless a direct and logical flow of cause and effect can show that the release of such information will place an actual person at greater risk of harm the argument of necessity by security cannot hold-up.

To use an outlandish example, aliens: if there is classified evidence to their existence, this could not be kept secret on the idea that people in general would flip-out with the knowledge. Knowledge of aliens does not directly control the actions of people – you are not forced to act one way or another on that knowledge alone – and rioting still depends on the choices of rioters. Thus, there is no direct cause and effect. Even if people are prone to panic, which they are, it is just bad luck if they destroy society as you live in the world you create.

That said, public knowledge of detailed military technology or tactics does jeopardize the lives of the operators or units in defending from aggressors (assuming one’s military is used for defence against attacks or stated threats) – which is in line with protecting the identity of undercover officials.

Hopefully there is enough information here to be able to explore further cases on one’s own. The point of this piece is to highlight what privacy actually is and what that should mean if one lived in a reasonable society. Exactly how this all should be policed, including the distribution of potentially sensitive government information is another matter. Noting that the policing methods themselves would also need to be consistent with everything else as well, if one wanted to maintain reason and justice.

However, to ask and expect people to be reasonable and consistent is a foolish endeavour. The odds of it ever happening on a mass scale are slim-to-none. That does not mean people could not suddenly act in such a manner, but the presence of emotions and self-interest make it highly unlikely. This is not a bad thing; it is just a reality one has to deal with. For more on my views on how to solve issues like these, head over to my blog,  The Last Revolution.

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