Speech Under Surveillance

As the discussion of the NSA's surveillance program continues, it's important to reflect on the role privacy plays in a free society. As analysts and experts debate the scope and degree of access, the PRISM leak shows us that our communications and personal information are vulnerable. Even if no one is in fact listening, reading, or tracking, someone might be, so we cannot assume that any information transmitted over any communication network or held by any third party is safe from scrutiny.

Why does this level of scrutiny make us feel less free? For one, with the loss of privacy comes the loss of a little bit of autonomy. Agree or disagree with prevailing social norms, when in public there is a clear pressure to conform to them. In private, a person can shrug off that pressure and act solely on his or her own judgment. Privacy theorists from John Stuart Mill to Tim Scanlon emphasize the freedom of the private sphere as an important proving ground for developing a sense of autonomy, an important ingredient of freedom.

I find the autonomy argument interesting, but I don't think it stops there. Considering the current situation, the principal concern is not the fully private domain, but the domain of information shared between individuals. Free speech and free association entails the ability to share what we want with whom we want. I can share my opinions on a political candidate with a sympathetic friend but not with a colleague I don't want to antagonize. This kind of discretion is important both for protecting ourselves from other people's biases and for providing a safe space for discussion and exchange.

When all of our communications are subject to eavesdropping, we lose that safe space. I no longer feel secure in disclosing my opinions even to trusted friends. As a society, we stop speaking to each other about anything of substance, anything that might invite suspicion, investigation, or persecution. Each person becomes an isolate island of opinion, a seemingly tiny mote of dissent in an ocean of uneasy acquiescence. A democratic society is only healthy if citizens are talking to one another, debating law and policy, and recognizing their important role as constituents of the state.

As third-party service providers like Google have increasing control and custody of our information, we need to focus on how to keep maintain privacy of our personal information and our communications. In current policy, third party custodians present a vulnerability because there is an assumption that without some explicit or established confidentiality agreement, any information we turn over to a third party does not carry a reasonable expectation of privacy.

Since it doesn't seem like we're going to stop using Google anytime soon, it will become increasingly important to demand that our information-management services carry strong privacy or confidentiality guarantees. Google's call for transparency in the PRISM debate has been a good sign. While lots of our data runs through Google's hands, they seem to have a sense of stewardship over that information. Of course, if the NSA has back doors or is intercepting information during transmission, Google's policies may serve as only a thin protection.