The new Act on the Intelligence and Security Services has led to controversy in the Netherlands, resulting in a referendum on March 21st. Both proponents and opponents have been vocal. What stands out in the arguments of the opponents is the issue of privacy, which is seen as the most important argument to vote against the proposed Act, as the new powers would infringe on the privacy of Dutch residents.
In the aftermath of Snowden, Wikileaks and the Panama Papers, many individuals have taken a more critical stance regarding government surveillance. Opponents of the new act fear that the intelligence and security services will gain legal powers that are too broad and allow for untargeted information-gathering on Dutch citizens. It is therefore no surprise that the act has been labeled as a “dragnet law”, referring to this practice of widespread and untargeted collection of information.
However, the discussion does not seem to escape the superficial level. The initiators of the referendum have stated that they hope that the referendum will be the starting point of an in-depth debate. At the same time they themselves stick to platitudes such as ‘privacy as a fundamental human right’ without any further specifications on what they are referring to specifically. Considering the fact that most people share numerous personal data on the internet without giving it second thought and the fact that multiple studies conclude that the average citizen has no idea what happens to his or her data, this seems to be a clear case of the illusion of privacy. Privacy: very important but at the same time what privacy are we (or they) talking about?
Privacy always relates to one’s private life: it usually refers to the possibility to protect that what is considered to be personal against outsiders (the state or fellow citizens). In the debate on the Act on the Intelligence and Security Services the focus is mostly on informational privacy, the protection of personal information against government surveillance.
In the WIV-debate privacy is presented as an absolute right that cannot be violated (as a result the opponents have a preference for making references to innocent citizens). There are two issues when taking that perspective. First of all, we as a society have an agreement with our government: the state protects civilians and in return we forfeit part of our privacy. In this social contract we ask the state to protect us against outside threats, such as terrorism and crime; but also against the power of the state itself. In doing so we have agreed to give up part of our privacy, for example physical privacy (think of airport checks when we travel) or relational privacy (when the state acts in case of domestic abuse). Privacy is therefore always a right that will have to be weighed against other principles and that is never absolute.
A second misconception about privacy as an absolute right is an extension of this social contract. An intelligence service intends to keep us safe by preventing certain events from happening. That means that they by definition will have to keep an eye on (or even impede the privacy of) innocent citizens (using far or less far reaching methods); even when the individual in question has not committed any crimes. Because intelligence services are not targeting or trying to ‘catch’ the bad guys after they have already committed an offense but rather, they try to identify potential threats, far before they may materialize. This means that in practice they will always check, analyze and in some cases invade the privacy of innocent individuals. This can be compared to a highway on which you can collect untargeted metadata (which vehicles pass, at which speed, in what direction?) in the hope of discerning patterns and acting pre-emptively, or targeted data (where is that specific blue Volkswagen going, who is behind the wheel, where does it stop and what is the driver doing?).
To come to a conclusion: most critics of the new WIV seem to be fighting for the illusion of privacy rather than initiating an actual in-depth debate on the proper balance between security and privacy. That does not mean the new legal powers as proposed in the Act on the Intelligence and Security Services need our approval by definition. In the words of Larry Ellison, former CEO of Oracle: “The privacy you’re concerned about is largely an illusion. All you have to give up is your illusions, not any of your privacy.“ We need to go beyond the argument of ‘privacy’ and instead have to ask ourselves: what privacy do we mean exactly? At what cost?