Government Surveillance and Privacy Infringement

Introduction

The notion of privacy has become increasingly muddled in the modern world, characterized by the rapid onset of technology. The pandemic of COVID-19 brought a new struggle to the ethical and legal implications surrounding the balance of public health and safety with the right to privacy. Therefore, the question arises of whether a government can infringe on the privacy of its citizens to protect them. The ethical aspect of government surveillance is complicated: there is no single definitive answer since each dilemma is heavily contextually determined. Therefore, much of the needed context must be provided to sufficiently support ethical arguments to answer the question. This essay touches upon two primary topics of public safety – the context of crime and the context of health, the latter section being more expansive. Ultimately, given that the government has its citizens’ best interests in mind, it is justified to infringe on individuals’ privacy for public security.

Criminal Investigation and Private Property

From the legal perspective, the government can, in some instances, breach citizens’ confidentiality. Specifically, The Fourth Amendment gives people a constitutional right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (U.S. Const. amend. IV). However, the same amendment authorizes government actions that violate individuals’ privacy “upon probable cause” and if a concrete description of “the place to be searched, and the persons or things to be seized” is given (U.S. Const. amend. IV). Ultimately, this provision aims to grant and safeguard citizens’ right to privacy and their freedom from ‘unreasonable’ infringements.

When it comes to citizens’ protection, there is no incentive for the government to violate their privacy more than required and authorized. The evidence obtained because of an unreasonable (obtained without a search warrant and a probable cause) search and seizure may not be presented in court as per the exclusionary rule established by the Supreme Court in Mapp v. Ohio 347 U.S. 643 (Gless & Richter, 2019). Individuals undeniably possess the right of “privacy of person and property” in the process of criminal investigation (Gless & Richter, 2019, p. 2). The American criminal justice system is designed to uphold these human rights regardless of how desperate the fact-finding process may get (Gless & Richter, 2019). For instance, if the investigators reasonably suspect a formation of a terrorist group and obtain a warrant, they would be justified in searching the suspects’ property. Thus, unreasonable violations of privacy would not be justified by their utility or endorsed by the law, and therefore the government should be able to access the needed data when there is a potential public threat.

Like physical evidence in court, data may also aid in identifying and mitigating public threats. Risk management and security are among the predominant concerns of the governmental organizations’ “homeland security,” especially in the aftermath of 9/11 (Lyon, 2017, p. 827). Meeting the securitization needs requires increased access to information about potential risks, which simultaneously weakens typical privacy constraints and expands supervision of “risky behaviors” (Lyon, 2017). If it is possible to prevent a terrorist act by evaluating potentially dangerous behavior or individuals or group by legal methods, it should be done. Thus, in severe threats to public safety, such as terrorism, closer monitoring and collection of digital data is justified.

Public Health in the Digital World

An aspect of privacy that spans beyond physical spaces and belongings is data privacy. An increasing amount of data is generated about every individual in the modern world, ranging from legal documentation to shopping preferences to private messages on social media. Ienca & Vayena (2020) argue that feeding collected personal data into the prediction and spread algorithms is a primary way to combat the COVID-19 pandemic. Moreover, according to the Centers for Disease Control and Prevention (CDC) (2022), surveillance is an essential public health service to “monitor environmental and health status to identify and solve community environmental health problems” (para. 4). Lastly, Mello & Wang (2020) argue that in the context of the imminent threat to public health, it may be unethical not to use the available data if that could assist with protecting public health. In the context of the COVID-19 pandemic, the trade-off of privacy for health advances “may be not only ethically justifiable but ethically obligatory” (Mello & Wang, 2020, p. 951). Thus, the necessity of data collection and monitoring is apparent – the question is then an extent to which such collection should occur.

The conflict surrounding health and privacy may be conceptualized through two ethical standpoints: utilitarian or libertarian. One of the branches of the utilitarian framework is termed consequentialism. In the act consequentialism framework, the value of the action’s consequence determines the rightness of that action (Johnson & Cureton, 2022). Therefore, the government must consider surveillance’s impact on public health and safety. Further, act consequentialism asserts that an act is ethically justified if its good outcomes are maximized through the total good outweighing the bad (Sinnott-Armstrong, 2021). Therefore, if the positives of public surveillance outweigh the harm, the administration is justified in its actions.

Sometimes, this approach is interpreted as the maximum good being done where more people benefit, but that is not entirely correct. The bigger numbers do not automatically increase worth: if a small number of people loses incomparably more than a larger group gains, it may not be justified. For the act to be justified in such a scenario, the sacrifice of the smaller group must increase the benefits to the greater group significantly more than any other alternative (Sinnott-Armstrong, 2021). In the question considered here, the gain for the American population would be increased security for all and lowered risk of disease development, weighed against individual privacy infringements.

Another commonly considered framework is deontology or Kantian theory. The deontological framework Kant pursues deems the sense of moral worth, goodwill, and, most importantly, moral duty as vital for deciding on the ethics of action (Johnson & Cureton, 2022). Deontology proposes to consider two questions in making such decisions. The first question asks the agent to consider what any sane adult would rationally and reasonably do in each situation (Johnson & Cureton, 2022). Public health interventions usually require strong evidence that it is necessary and adequate to intervene in the proposed way (Rothstein, 2020). However, there was pressure to respond promptly in the context of a global pandemic, even if the gathered evidence was not yet sufficient. In the beginning, it was difficult for health professionals to estimate what information would be helpful; one of the ways to address that issue was to gather all potentially relevant data (Rothstein, 2020). Therefore, a rational thing to do would be to minimize the adverse health effects of the spreading virus, which can be preventatively addressed by disease monitoring. Therefore, surveillance for public security passes the first test of ‘reasonableness.’

Having established that the government can rationally collect data, the second question must be asked. That is, whether the proposed action respects others’ goals or treats them as mere instruments (Johnson & Cureton, 2022). The basic idea of this question is humanity and respect – avoiding using people as a means to achieve one’s ends. One could argue that since public surveillance may infringe on citizens’ privacy, it may lead people and their data to be viewed as a tool. Notably, people expressed more concern and opposition regarding these methods in pandemic prevention than police investigation (Kugler & Oliver, 2021). Here, the question is whether the data is collected respectfully and openly – if that is the case, then the authorities are justified in their actions.

Therefore, the ethics of appropriate data collection must be considered to advance the argument for the government’s (contextual) right to violate privacy. A primary concern for the public was that the gathered data might be reused by the government or technology companies for other purposes that infringe on their privacy (Kugler & Oliver, 2021). Hence, the argument against the ability of the government to collect personal data is that it is not known where and how that data may be used in the future. The lack of transparency and potential misuse of obtained information are the things that public administrators must address to overcome these concerns.

Thus, for the surveillance practices to be ethical, they must be reframed as a tool for the public and not to watch the public. Ienca & Vayena (2020) stress the importance of using big data and algorithms responsibly and with respect for personal privacy in the context of the pandemic response. This approach allows for aligning citizens’ right to privacy and the government’s desire to keep the public safe. Overall, three major principles could ensure ethical surveillance: proportionality to the seriousness of the threat, limitation to the necessary minimum, and scientific and legal justification (Ienca & Vayena, 2020). If these requirements are met, the government can collect the data for public safety, even if that constitutes a privacy violation.

Conclusion

In conclusion, in certain circumstances, the government may violate citizens’ privacy if that is done for public security. Ultimately, both from a utilitarian and Kantian perspective, the government is justified in infringing on people’s privacy as the cause of people’s safety, and the reasonableness of data applications supports it. Regarding the data collection procedure, rules must be followed for this action to be ethically and legally justifiable. First, the extent of data collection must be proportionate to the seriousness of the public threat. Extensive data collection is justifiable in the pandemic, which is a global health concern. Second, the data collection should not be excessive; however, given the unknown (at the time) scope of COVID-19 effects and transmission rates, a larger-than-usual extent of privacy violation was permissible. Third, surveillance should be legally and scientifically justifiable, which, in case of threats to society, such as terrorism or lethal pathogen spread, is. Lastly, the government does not have an incentive to obtain any in violation of legal requirements as it would not be admissible in court, which adds a layer of protection against misuse of such power.

References

Centers for Disease Control and Prevention. (2022). Ten essential environmental public health services.

Gless, S., & Richter, T. (Eds.). (2019). Do exclusionary rules ensure a fair trial? A comparative perspective on evidentiary rules (Vol. 74). Springer International Publishing.

Ienca, M., & Vayena, E. (2020). On the responsible use of digital data to tackle the COVID-19 pandemic. Nature Medicine, 26(4), 463–464.

Johnson, R., & Cureton, A. (2022). Kant’s moral philosophy. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (2022). Metaphysics Research Lab, Stanford University.

Kugler, M. B., & Oliver, M. (2021). Constitutional pandemic surveillance. Journal of Criminal Law and Criminology, 111(4), 909–963.

Lyon, D. (2017). Surveillance culture: Engagement, exposure, and ethics in digital modernity. International Journal of Communication, 11, 824–842.

Mello, M. M., & Wang, C. J. (2020). Ethics and governance for digital disease surveillance. Science, 368(6494), 951–954.

Rothstein, M. A. (2020). Public health and privacy in the pandemic. American Journal of Public Health, 110(9), 1374–1375.

Sinnott-Armstrong, W. (2021). Consequentialism. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (Fall 2021). Metaphysics Research Lab, Stanford University.

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