Speech given by NZCCL chairperson Thomas Beagle to the Rotary Forum - The Privacy Security Dilemma.
I'm not here to talk about privacy, I'm here to talk about power.
It's become increasingly clear to me that privacy, while important, is not a sufficient lens with which to look at the changes that are happening as human society digitises itself.
As someone who has been involved in political activism around privacy and technology, I've often been called on to explain why privacy matters. If you've done nothing wrong, you've got nothing to hide, right?
Now I can rebut that statement in a number of ways but it still kept coming up. Eventually I realised it was the word "privacy" that's putting people wrong.
When people think about their own privacy, the emotion they tend to think about is shame. It's the feeling they get when something they want to keep secret is revealed to people who matter to them, such as their friends, family and community. But this emotion doesn't really apply when it's an impersonal computer or a distant bureaucrat - so an argument against the surveillance society based on privacy fails to resonate.
The digitisation of society isn't just about privacy. Modern technology is changing more than that. Nearly everything we do creates data, and this data is increasingly being collected, stored, aggregated, and analysed. Every year we think of new ways to use it, or have it used against us.
When companies collect information about us and then use that information to manipulate our behaviour, is this not an exercise of power?
Digital optimists talk about "the power of big data to change lives" - but what is often missed is who are the people who get to wield that power, and who get to have it wielded against them?
And when governments gather more and more information about people, what does this do to the balance of power between the rulers and the ruled?
We know that people behave differently when they know they're being watched. This can be seen online, with more and more studies talking about the chilling effect of surveillance on people's willingness to speak out, to question orthodoxy, even just to seek out contentious information.
Maybe it's safer not to say anything controversial in case it comes up when you apply for a job in the future. Maybe you shouldn't tell your doctor the truth, in case the government grants itself the right to access your medical records. Maybe you shouldn't blow the whistle on the corrupt behaviour you discovered.
This is about power. It's people using information about us to influence and control our behaviour in ways that suit their needs and not ours.
And it's also important to note that it's not just the reality of spying and surveillance that damages our society, it's our perception of them. It's the feeling of being watched and tracked at all times, the uncertainty that comes from not knowing what someone else knows about us, the fear that something we do or say today might be used against us in the future.
You can see this privacy vs power dynamic at work when you consider the intelligence agency's self-serving logic that just collecting data doesn't amount to surveillance, it's only surveillance when the data is analysed or looked at by a person.
This makes a certain superficial sense when we're thinking about personal information in terms of privacy and shame, but its a very different story when we think about power. It's the equivalent of someone saying "Oh, we've copied your personal diary but you've got nothing to fear, we're just going to keep it forever and read it if we ever want to." Your knowledge of this acts as a constraint on your behaviour.
And this brings me to civil liberties.
I became involved with civil liberties because I believe in democracy, and government by the people.
But I also understand that while "the people" might be powerful, individuals are often quite helpless against the government's might. Furthermore, there is a tendency for even democratic Governments to accumulate more and more power over the people who elect them.
Civil liberties are a response to this dynamic. They're a set of constraints that we impose on our government to protect individual rights and thus help preserve our democracy.
But when information is power, and when government agencies are increasingly collecting, storing, and analysing information about people, the balance of power tilts from the people towards the government.
Some people try to say we should be more afraid of big companies than the government. But corporations don't have much power over us really. Corporations can't cut your benefit, put you in jail, take away your driver's license, or deny you the ability to travel overseas. And corporations can't compel others to share their data with them.
It's government use of information, and the desire to collect more of it, that I see as the threat to our freedom.
And this is where the recent Intelligence Review fell down so badly.
I'm not going to go into the recommendations now, but in a review that contains the line "The need to maintain both security and the rights and liberties of New Zealanders has been at the forefront of our minds." there is a surprising lack of analysis of what those rights and liberties might be.
It failed to consider how changes in technology are not only changing the scope of surveillance but also the ramifications of it.
It failed to consider the dynamic where we see a continual expansion of surveillance powers just because it's possible.
It failed to consider that the only thing stopping us from living in a future panopticon, where our lives are an open file, are the constraints we choose and the limits we enforce.
And it also failed to consider the costs imposed on us from living in a surveillance society. Costs such as the discouragement of whistle-blowers, the impact surveillance has on the integration of immigrant communities, the erosion of freedom of expression by the quietening of political participation.
Instead the focus appeared to be on improving the "efficiency and effectiveness" of the intelligence agencies, neglecting the fact that some of these "inefficiencies" are actually constraints deliberately put in place to protect our freedom.
We also need to look at the reality of surveillance and spying. Nicky Hager many years ago, and Edward Snowden much more recently, both said that the major concern of these spy agencies is not what we would think of as security, but is economic and diplomatic in nature. That the spy agencies are not primarily designed to protect citizens, but to advance commercial interests and project power.
Is there any better example of this than New Zealand spying on "friendly" nations in the Pacific, passing on the captured information to Australia and the US so that they can take advantage of them in trade and fishing negotations?
In closing, I've talked a bit about privacy and quite a lot about power, but I also want to touch on security.
We often see people trying to frame these debates about spying and surveillance as a battle between security and privacy. There is an idea that we can adjust some sort of balance between them until we find the setting that's just right.
But we need to look at the reality of the New Zealand situation. Our last terrorist incident was over 30 years ago. Even our most recent "scary headlines" published when the spy agencies were doing a bit of a PR blitz, turned out to be about something as terrible as people voluntarily leaving Australia. We are not currently seriously threatened by security issues and anyone who claims otherwise is probably just applying for a larger budget.
Earlier I said that privacy is a feeling - well, security is also a feeling. And when it comes to security, I am a lot more worried about the threat of our very real security services, both now and in the future, than I am about hypothetical terrorists.
We need another Intelligence Review. A better one. One that goes beyond a desire to streamline and improve the status quo. One that's prepared to look at the costs of surveillance and not just the rather over-hyped benefits. One that's prepared to wrestle with the issues of what we can and cannot control as we digitise our world. One that gives more than just lip service to civil liberties and our democracy.