Computers, Privacy & the Constitution
-- GerryMoody - 23 Jun 2008

Liberty and Anonymity

In On Liberty, John Stuart Mill argues that autonomous thought and action are necessary conditions for personal liberty. According to Mill, the government should only limit an individual’s freedom in order to prevent him from harming another; when it constrains him for any other reason, the government exercises its power improperly. Applying Mill’s “harm principle,” this essay will explore two questions: first, is autonomy possible without the ability to remain anonymous? And if not, does even the specter of extra-legal surveillance threaten the growth of our society by changing the way we behave in private? This essay argues that only surveillance conducted according to law can both promote national security and protect individual freedom.

The Despotism of Custom

The greatest threat to autonomy according to Mill is not the government, but rather the "despotism of custom," or the "tyranny of prevailing thought or feeling." For Mill, social custom creates an inertia against which the individual must strive in the search of something superior. One detects such apathy in the nation’s response to the exposure of the NSA wiretapping program. This collective shrug, commentators have argued, results from the comforting notion that only those with something to hide should fear surveillance. These people fail to recognize that some of today’s most conventional beliefs and behaviors had to develop in the private lives of forward-thinking individuals before either the state or mainstream society would accept them. The harm principle is intended to give people the space to develop counter-cultures, or what Mill called experiments in living."

The Panopticon

Commentators have speculated that Mill’s emphasis on dissent and individualism was a response to his rigorous education, overseen by his father, James Mill, and Jeremy Bentham. Bentham, of course, designed the panopticon, a circular prison wherein prisoners are always potentially being watched by an unseen guard at its center. In his essay Panopticon, Bentham explained that the prison offered “a new mode of obtaining power of mind over mind.” The constant “inspection” of individuals enabled the inspector to control them: “the more constantly the persons to be inspected are [watched], the more perfectly will the purpose X of the establishment have been attained.” Acknowledging that constant surveillance of inmates was “impossible,” Bentham believed the next best thing would be to create the constant possibility of surveillance, so that the inmate “would conceive himself to be” under observation.

Anonymity, Terror, and Freedom

Anonymity—at one level of abstraction—is the individual’s ability to choose and limit the witnesses to his mental or physical actions. There are varying degrees of anonymity, and a certain amount is essential to personal autonomy. An individual is not acting autonomously if, when he speaks or reads or clicks a on a link, he has reason to wonder whether there are untold others secretly listening or watching. Autonomy and anonymity are inextricably tied, and both are allergic to surveillance. For example, the knowledge of actual or possible surveillance can affect speech by inciting protest or compelling self-censorship. The listener—real or simply possible—enters the conversation and threatens even free thought, as the speaker will always have to consider the strategic implications of exposing his speech or action. This is part of the reason Bentham knew the panopticon would be so effective: it guarantees that an inmate will never be able to know whether he acts anonymously, forcing him to continuously choose between obeying the rules and breaking them in front of the unseen eyes of his keepers. Without anonymity, the inmate has little autonomy, and is more likely to live according to the will of those who imprisoned him.

Terrorism also obviously threatens autonomy. Terrorists in Iraq, for instance, attack civilians who choose to join or vocalize support for the Iraqi government. After September 11th, people and businesses moved away from New York City and many Muslims lived in fear of irrational retaliation in the wake of the 2005 London bombings.

Rights and Privacy

The NSA wiretapping program makes political dissenters and government whistle-blowers think twice before speaking. Terrorists intimidate by threatening the safety of civilians. Both have at least one thing in common: they each operate outside the law. The tension between anonymity and security can be best resolved by enacting and enforcing national privacy legislation. This would help to ensure that surveillance is only used to prevent harm and not to stifle creative thinking or political dissent.

A complete discussion of privacy legislation, however, must consider Mill’s tyranny of the majority, manifested in the popular belief that only those who have something to hide have anything to lose in a surveillance society. Activists must do a better job of articulating the importance of personal privacy. They must make clear that until privacy legislation is enacted and enforced, we will wonder always whether we are under surveillance. As the panopticon demonstrates, we are as good as watched if we believe someone might well be watching. This feeling of being watched, which will only grow as technology develops, could have disastrous effects on personal liberty.

Successful privacy legislation will be more than a mere compromise with the executive branch of government. First, it should announce that privacy is essential to liberty, and explain the relationship between anonymity and autonomy. Second, it should comprehensively and definitively place limitations on when and how surveillance may be used in the United States. As Mill wonderfully wrote, "[a]ll that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people." With no law to guarantee the individual a comprehensive right to privacy, technological advancement might make our future understanding of privacy, and of liberty itself, mere shadows of the past.

Word count: 955


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r3 - 23 Jan 2009 - 15:51:38 - IanSullivan
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