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The Ethics of Surveillance 

Introduction to Surveillance

Surveillance is, simply put, the observation and/or monitoring of a person. Coming from the French word for "looking upon," the term encompasses not only visual observation but also the scrutiny of all behavior, speech, and actions. Prominent examples of surveillance include surveillance cameras, wiretaps, GPS tracking, and internet surveillance.

One-way observation is in some ways an expression of control. Just as having a stranger stare at you for an extended period of time can be uncomfortable and hostile, it is no different from being under constant surveillance, except that surveillance is often done surreptitiously and at the behest of some authority.

Todays technological capabilities take surveillance to new levels; no longer are spyglasses and "dropping" from the eaves of a roof necessary to observe individuals - the government can and does utilize methods to observe all the behavior and actions of people without the need for a spy to be physically present. Clearly, these advances in technology have a profound impact with regards to the ethics of placing individual under surveillance&emdash;in our modern society, where so many of our actions are observable, recorded, searchable, and traceable, close surveillance is much more intrusive than it has been in the past.

Surveillance and Physical Searches

Particularly interesting about government surveillance is that in the United States surveillance is not held to the same standards of accountability&emdash;as the Constitution protects American citizens from unreasonable searches and seizures, physical searches of individuals may not be conducted without a warrant issued by a judge. However, after the passage of FISA and subsequent laws, citizens have not been given the same protection with regards to electronic surveillance. As there have been massive changes in technology and lifestyle since the 1970s, electronic surveillance could be considered much more invasive than a physical search, yet as has been made clear in the legal section of this website, it is in fact much easier for government agents to perform surveillance. Why there is such disparity between these standards to us a matter of serious concern.

"If you haven't done anything wrong, you have nothing to fear."

This is a typical argument used by governments and other groups to justify their spying activities. Upon cursory inspection, it seems to make sense&emdash;as most people are law-abiding citizens, most ostensibly will not be targeted for surveillance and it will not impact their lives, while making their lives more comfortable and safer through the elimination of criminals. Thus, the government's use of closed-circuit television cameras in public spaces, warrantless wiretapping, and library record checks have the potential to save lives from criminals and terrorists with only minimal invasion of its citizens' privacy.

First, as a mental exercise, we ask that the reader consider that these arguments could easily be applied to asking all citizens to carry location tracking devices&emdash;it would make tracing criminal acts much easier, and that it could easily be argued that people refusing to carry these devices only do so because they have something to hide. It is a matter of course that most people in our society would object to this solution, not because they wish to commit any wrongdoings, but because it is invasive and prone to abuse. Now consider that, given current technology, the government already has the ability to track a known target's movements to a reasonable degree, and has easy access to information such as one's purchasing habits, online activities, phone conversations, and mail. Though implementing mandatory location tracking devices for the whole population is certainly more invasive than the above, we argue that current practices are analogous, extreme, and equally unacceptable.

Next, this argument fails to take into consideration a number of important issues when collecting personally identifiable data or recordings&emdash;first, that such practices create an archive of information that is vulnerable to abuse by trusted insiders; one example emerged in September of 2007 when Benjamin Robinson, a special agent of the Department of Commerce, was indicted for using a government database called the Treasury Enforcement Communications System (TECS) for tracking the travel patterns of an ex-girlfriend and her family. Records show that he used the system illegally at least 163 times before he was caught (Mark 2007). With the expansion of surveillance, such abuses could become more numerous and more egregious as the amount of personal data collected increases. 

In addition, allowing surreptitious surveillance of one form, even limited in scope and for a particular contingency, encourages government to expand such surveillance programs in the future. It is our view that the danger of a "slippery slope" scenario cannot be dismissed as paranoia - as a prominent example, the collection of biometric has expanded immensely in the past several years. Many schools in the UK collect fingerprints of children as young as six without parental consent (Doward 2006), and fingerprinting in American schools has been widespread since the mid-eighties (NYT National Desk 1983). Now, the discussion has shifted towards DNA collection&emdash;British police are now pushing for the DNA collection of children who "exhibit behavior indicating they may become criminals in later life" (Townsend and Asthana 2008), while former New York City mayor Rudy Giuliani has encouraged the collection of DNA data of newborns (Lambert 1998). 

When data is collected, whether such data remains used for its stated purpose after its collection has been called into question, even by government officials: the European Data Protection Supervisor has acknowledged that even when two databases of information are created for specific, distinct purposes, in a phenomenon known as 'function creep' they could be combined with one another to form a third with a purpose for which the first two were not built (eGov Monitor Weekly 2006). This non-uniqueness and immutability of information provides great potential for abuse by individuals and institutions.

When is surveillance appropriate?

Many different groups define appropriate bounds for surveillance in different manners. One viewpoint that we have found interesting is that of M.I.T. professor Gary Marx, who argued that before implementing surveillance we should evaluate the proposed methods by asking a number of questions, which we enumerate below:

A. The Means

Harm: does the technique cause unwarranted physical or psychological harm?

Boundary: does the technique cross a personal boundary without permission (whether involving coercion or deception or a body, relational or spatial border)?

Trust: does the technique violate assumptions that are made about how personal information will be treated such as no secret recordings?

Personal relationships: is the tactic applied in a personal or impersonal setting?

Invalidity: does the technique produce invalid results?

B. The Data Collection Context

Awareness: are individuals aware that personal information is being collected, who seeks it and why?

Consent: do individuals consent to the data collection?

Golden rule: would those responsbile for the surveillance (both the decision to apply it and its actual application) agree to be its subjects under the conditions in which they apply it to others?

Minimization: does a principle of minimization apply?

Public decision-making: was the decision to use a tactic arrived at through some public discussion and decision making process?

Human review: is there human review of machine generated results?

Right of inspection: are people aware of the findings and how they were created?

Right to challenge and express a grievance: are there procedures for challenging the results, or for entering alternative data or interpretations into the record?

Redress and sanctions: if the individual has been treated unfairly and procedures violated, are there appropriate means of redress? Are there means for discovering violations and penalties to encourage responsible surveillant behavior?

Adequate data stewardship and protection: can the security of the data be adequately protected?

Equality-inequality regarding availability and application: a) is the means widely available or restricted to only the most wealthy, powerful or technologically sophisticated? b) within a setting is the tactic broadly applied to all people or only to those less powerful or unable to resist c) if there are means of resisting the provision of personal information are these equally available, or restricted to the most privileged?

The symbolic meaning of a method: what does the use of a method communicate more generally?

The creation of unwanted precedents: is it likely to create precedents that will lead to its application in undesirable ways?

Negative effects on surveillors and third parties: are there negative effects on those beyond the subject?

C. Uses 

Beneficiary: does application of the tactic serve broad community goals, the goals of the object of surveillance or the personal goals of the data collector?

Proportionality: is there an appropriate balance between the importance of the goal and the cost of the means?

Alternative means: are other less costly means available?

Consequences of inaction: where the means are very costly, what are the consequences of taking no surveillance action?

Protections: are adequate steps taken to minimize costs and risk?

Appropriate vs. inappropriate goals: are the goals of the data collection legitimate?

The goodness of fit between the means and the goal: is there a clear link between the information collected and the goal sought?

Information used for original vs. other unrelated purposes: is the personal information used for the reasons offered for its collection and for which consent may have been given and does the data stay with the original collector, or does it migrate elsewhere?

Failure to share secondary gains from the information: is the personal data collected used for profit without permission from, or benefit to, the person who provided it?

Unfair disadvantage: is the information used in such a way as to cause unwarranted harm or disadvantage to its subject?

In general, we feel that surveillance can be ethical, but that there have to exist reasonable, publicly accessible records and accountability for those approving and performing the surveillance in question.

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Kalev LeetaruContributor

AI & Big DataI write about the broad intersection of data and society.

Photo illustration of the Facebook logo. (CHRISTOPHE SIMON/AFP/Getty Images)

Earlier this month it came out that among Facebook’s myriad algorithmically induced advertising categories was an entry for users whom the platform’s data mining systems believed might be interested in treason against their government. The label had been applied to more than 65,000 Russian citizens, placing them at grave risk should their government discover the label. Similarly, the platform’s algorithms silently observe its two billion users’ actions and words, estimating which users it believes may be homosexual and quietly placing a label on their account recording that estimate. What happens when governments begin using these labels to surveil, harass, detain and even execute their citizens based on the labels produced by an American company’s black box algorithms?

One of the challenges with the vast automated machine that is Facebook’s advertising engine is that its sheer scale and scope means it could never possibly be completely subject to human oversight. Instead, it hums along in silence, quietly watching the platform’s two billion users as Big Brother, silently assigning labels to them indicating its estimates of everything from their routine commercial interests to the most sensitive and intimate elements of their personality, beliefs and medical conditions that could be used by their governments to manipulate, arrest or execute them.

Such concerns are unfortunately far from hypothetical. I can personally attest that there are many governments across the world that very much aware of the potential of Facebook’s advertising tools for surveillance and indeed use them actively to track specific demographics and interests, using the company’s built-in reporting tools to identify geographic areas and demographics to target for further surveillance.

 

 

Today much of the governmental use of Facebook’s ad targeting tools revolves around using its publicly accessible targeting and reporting tools to understand things like which neighborhoods have the highest density of persons in a particular demographic that also have a particular interest of concern to the government. By running large numbers of parallel campaigns covering all of the permutations of a set of demographics and interests, governments can even learn which demographics are most associated with particular interests and which interests are most strongly correlated with particular demographics. Geographic reporting tools allow neighborhood-level identification of where those demographics and interests coincide, allowing surveillance resources to be increased in those areas.

The public availability of Facebook’s targeting tools means intelligence agencies need no court orders to leverage them, foreign intelligence services can use them to track and surveil on foreign soil and even local law enforcement agencies can use them with few restrictions. The global availability of Facebook’s advertising platform offers a particularly powerful and inviting tool for intelligence agencies attempting to map out adversarial nations, allowing them to better understand demographic and interest correlations and geographic affinities and guide the allocation of their own ground based resources.

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In spite of their incredible power and public availability, Facebook’s ad tools are still a relatively blunt instrument compared to traditional individual-level surveillance tools.

As I alluded to earlier this week, what happens when countries in which homosexuality is a criminal offense that can potentially bring the death penalty use Facebook’s tools to target those communities? Using only Facebook’s public advertising tools, they can estimate popular neighborhoods and hangouts, correlated interests in those areas and so on, but they can’t readily compile a list of real names and addresses of everyone in their country that Facebook believes may be homosexual.

Given that homosexuality in some countries is classified as a crime under their formal legal code, could those countries use a court order to force Facebook to provide a list of all names of individuals in their country that its algorithms believe may be homosexual? The laws of many countries would make it difficult for Facebook to attempt to shield its users from a lawful request for a list of individuals suspected of committing what is in that country a serious crime.

Compounding matters, those individuals may have no idea that Facebook has identified them as potentially homosexual. They may take great care in all of their communications, friendship connections, likes, statements, status updates and all other online actions in an attempt to prevent the government from suspecting them. Yet, Facebook’s unyielding all-watching Eye of Sauron is not easily fooled and will likely eventually assign them a marketing label indicating its belief of their sexual preference based on the most nuanced patterns invisible to the human eye.

While Facebook agreed to remove its treason category due to its illegality in all countries (left unspoken was its limited marketing use which mean it likely was generating little revenue), a company spokesperson stated that the company would not be removing other categories that could place individuals at grave risk of arrest or death. Noting that homosexuality categories can be used by LGBTQ advocacy groups to reach people interested in those topics, the company said that they would not be restricting their use of homosexuality categories or any of its other sensitive topics categories even in countries where they are illegal.

When asked whether the company would at least consider limiting its application of sensitive categories in countries where they are illegal, such as not automatically labeling homosexual users against their will in countries where they could face the death penalty, the company offered that since marketers wanted to target those sensitive categories even when they placed users at grave risk of physical harm or death, “we’ll be keeping [them].”

It is remarkable that the company would not even consider placing the life safety of their users ahead of its marketing interests and that revenue generation is prioritized even when it has a very real possibility of leading to the death of those users. Such are the ethical and moral standards of today’s Silicon Valley.

This raises the question then of what Facebook would do when confronted with a formal legal request, such as public court order or a more secretive National Security Letter or similar, that ordered the company to hand over the names and IP addresses of all users that its algorithms believed were interested in certain topics or belonged to certain demographic groups.

When asked “has Facebook ever received a request from any government agency worldwide that asked it to provide a list of user names of accounts that had specific advertising interest labels associated with them” a company spokesperson replied that the company would provide that information to any government “In response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States when we have a good-faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards” and pointed to its data policy.

When asked whether the company had indeed received such requests and actually provided a list of names in response that its algorithms believed were interested in those categories, the company let its answer above stand.

Such a response is truly frightening, as it demonstrates just how clearly the central role Facebook is increasingly playing as a tool for law enforcement, intelligence agencies and repressive regimes to crack down on legitimate dissent or internationally recognized human rights. It also raises important questions about the company’s legal exposure if it knowingly assists a repressive regime track down and execute citizens based on internationally protected statuses.

Putting this all together, instead of bringing the world together, social media is increasingly helping to elevate the voices tearing it apart, while its international reach, massive centralized data warehouse and algorithms that can divine the most sensitive and intimate elements of our lives are likely to increasingly become a go-to one-stop shop for the world’s intelligence agencies to spy on and influence the world while governments themselves increasingly leverage their legal powers to force Facebook to help them hunt down dissent and those different from themselves. Welcome to a world even Orwell could not have imagined.

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