The Admissibility of Ethics and the Implementation of Oversight over Digital Surveillance

Submitted by Daniel Elya Rak

Recent developments in the technological, operational, and institutional aspects of digital surveillance all point to one main trend: the equilibrium of proportionality, necessity, and intention in intelligence practice is being challenged. This could change the way states value digital privacy and weaken oversight mechanisms. Covid-19 is posing new difficulties for the delicate balance of concerns over digital surveillance, and is beginning to blur the line between democratic and totalitarian approaches to this kind of law enforcement activity. In light of these trends, the regulatory and oversight capacities of the practice of digital surveillance are in decline.

Digital Surveillance – a Justified Panopticon? 

At first glance, it seems as if the practice of digital surveillance is ethical compared to older methods of espionage. In the case that national security is the national interest, defined empirically by intelligence acts worldwide, a utilitarian and consequentialist approach is, in my opinion, the primary ethical school of thought in intelligence work. This approach is also an ethical justification to digital intelligence: the cost of conducting digital surveillance on individuals is lower than the potential outcome – that a certain individual is eventually an unidentified imminent threat to national security and the greater good – may it be a suicide bomber sent by a Salafi terror organization, a spy handled by the Russian SVR, or, for instance, a SARS-CoV-2 carrier. In addition, the approach serves as an ethical justification for the practice of digital surveillance, compared to classic HUMINT (Human Intelligence) espionage.

Some argue that invasive surveillance is actually the lesser of two evils. In an analogy to Jeremy Bentham and Michel Foucault, digital surveillance serves as a modern panopticon – a means to deter potentially violent individuals and groups from threatening the national interest by creating a reality in which the general society is being watched every moment. On the other hand, this panopticon is a means to prevent more extreme, intrusive and violent measures from being utilized to achieve the same objective: national security. Hence, intelligence agencies are utilizing the “lesser evil” methods of intelligence gathering. 

Based on Bentham’s theory of Utilitarianism, “Intelligence Utility” is the implementation of less “painful” means for the largest “benefits”, defined in the intelligence context as national and international security, by unveiling information that others are willing to keep secret. Therefore, the implementation of digital intelligence is an ethical approach to intelligence gathering when compared to older intelligence gathering tactics such as physical tracking, HUMINT agent recruitments and handlings, covert breaches and home wiretaps. These classic intelligence methods were extremely prominent during the Cold War. They were utilized by all the intelligence agencies involved, whether it was the KGB’s violent methods of population deterrence in the USSR, the Staatssicherheitsdienst’s (Stasi) excessive and reckless invasions of the citizen’s privacy though constant monitoring in East Germany, or the FBI’s persecution of individuals suspected of being involved in communist activities during the paranoia of McCarthyism in the United States.

Compared to historical examples of the 20th century, digital intelligence is serving the citizens and the intelligence community, not only from a utilitarian and consequentialist perspective that govern any intelligence practice, but in relatively deontological principles as well. 

Democracies or Dictatorships? Data Ownership and Regulation as Regime Characterizers

The realm of intelligence is changing, following the transformation of political interests in modern states. Digital intelligence can serve the greater good, but it’s handlers can also control and disseminate data for unethical goals. From biblical times until the end of the 20th century, the international political realm was perceived as the struggle between entities on geopolitical power: the rule and ownership of land, and the centrifugal influence demonstrated through this perception of power. In the contemporary structures of politics and national security interests, data is gaining prominence to be the most important asset for governments, whether they be democratic, authoritarian, or theocratic.

Politics is evolving with modernity, shifting its emphasis to the competition of who controls the flow of information, especially in the digital domain. More than ever before, modern governments gather information in order to increase their own power. The centrality of the ownership of data is a phenomenon popular in modern authoritarian and dictatorship regimes. Today the cause for which the state uses the data defines its regime and its internal level of freedom. China is a prime model for an authoritarian state that uses any personal data possible to dictate social order and maintain the power of the Chinese Communist Party. China has an inherent lack of oversight mechanisms that leaves the Chinese Ministry of State Security with virtually unlimited power to achieve the Party’s goals using any available means. The 2019 National Intelligence Law is an official signature of this intelligence strategy.

In contrast to China, legal and governmental institutions in democracies aim to regulate intelligence work, the ownership of data, and the ways of utilizing it within a framework of ethical boundaries. These are the main elements of oversight existing in democracies. This kind of oversight is effective when institutions are tasked with regulating fair use of data instead of creating powerful intelligence apparatuses. 

In democracies, the oversight of the intelligence apparatus is more dominant, and perceived as less lenient than in authoritarian regimes. The absence of such oversight over digital surveillance could reduce the attention given to moral considerations in data-management regimes that democratic states have been able to foster so far. This would challenge the credibility of democracy by undermining principles of freedom and privacy. Attempts to acquire power in modern democracies through the utilization of personal information for personal and sectorial political interests such as the cases of Cambridge Analytica in the U.S elections of 2016 and the allegations of misconduct in the 2016 Brexit referendum, can be seen as potent examples of the deterioration of democratic credibility. Thus, digital intelligence may be encouraging immoral uses of data, and not for the role the intelligence apparatus was primarily created for; preserving national security.

Digital Surveillance Oversight – A Slope to Regression?

The simplicity and proliferation of intelligence gathering through digital methods creates a slippery slope: the temptation for governments to seize control of their populations by using data as a political tool to deter individuals from gathering as an oppositional collective. In order for domestic intelligence agencies operating in democratic states to preserve social and political freedom as a rule, they must engrave human rights into their constitutional and legal norms, and be subject to legal principles, norms and rules that regulate intelligence activity. This is imperative to prevent intelligence agencies from using data in a manner that would violate the foundational principles on which the state’s identity and legitimacy exist. 

Although there are existing arrays of structures, institutions and acts in democracies such as the British Intelligence and Security Committee of Parliament (ISC) and the Investigatory Powers Tribunal (IPT), the United States Senate Select Committee on Intelligence, and the Israeli Knesset Foreign and Security Committee, the level of oversight that can be imposed on intelligence communities is limited due to their distinctive operative secrecy. In addition, the regulation of intelligence work that is seen by the public is mainly focused on the oversight of “intrusive intelligence” and “interception of communication” as they require external authorization by a Secretary for Homeland Security or a Secretary for Justice, while the “use of communication data” requires only internal agency authorization. Implicitly, there is no clear distinction between the method of interception of communication and use of communication data. Accessing WhatsApp message logs and recording phone conversations can be perceived both as “interception of communication” and “use of communication” methods simultaneously. This vague overlap seems deliberate and without any effective enforcement. There is an inherent legal obscurity in intelligence oversight mechanisms that encourages disproportionate collection, utilization and exploitation of data by governments, which poses a challenge to ethical considerations and questions the will to create effective accountability.

Coronavirus Watershed – The Rise of the Surveillance State?

In the current global Coronavirus outbreak, states including western democracies see the health and social order of their populations as superseding personal privacy. The outbreak is seen as a clear threat to national security. This has allowed governments to justify bypassing oversight for the use of surveillance in order to maintain national security. China has vastly increased its digital surveillance utilization since the eruption of COVID-19. State-of-the-art AI algorithms, LOCINT (Location Intelligence) COMINT (Communication Intelligence) and even bio-surveillance aspects such as body temperature and cough monitoring are being widely utilized. To the Chinese government, the crisis proves that the control of the masses is effective in totalitarian and authoritarian regimes for resolving a national health crisis – thanks to boundless usage of digital surveillance. The justification of digital surveillance by interpretation of proportionality is a slippery slope to the end of privacy.

The outbreak serves as a watershed for surveillance. Now, surveillance is not only external to the body, but internal: though location and communication monitoring are vastly increased, these methods are not as invasive as biometric surveillance, such as body temperature and coughing, and the monitoring of personal health. To paraphrase Yuval Noah Harari, this gives birth to a dystopian prophecy: if the state can monitor the citizen’s physical conditions, it may also know how citizens emotionally react to political trends.

Democracies are using the Chinese model, having ordered and authorized intelligence and security agencies to identify, surveille and control the movement of potential SARS-CoV-2 carriers. Israel, a democratic state, has officially implemented digital surveillance on its own general population for the first time in its history, after implementing Taiwan’s model without a cabinet decision or a parliamentary vote. Israeli Prime Minister Benjamin Netanyahu issued an “emergency decree” to bypass the refusal of the cabinet’s subcommittee and legal authorizations. Though halted following ethical and data protection ramifications, the Israeli Security Agency (ISA, also known as Shin Bet) has controlled and surveilled all Israeli citizens in addition to those who have been diagnosed as SARS-CoV-2 carriers, including all individuals who entered the country by incoming flights. The Shin Bet enforced and preserved isolation, and gathered information through GPS and cellular LOCINT history on individuals who were in proximity to virus carriers. The agency notified those at-risk individuals through personal messaging in an effort to slow the rate of transmission, and provided constant monitoring for the Ministry of Homeland Security and the Ministry of Health. Following the emergence of a second wave of COVID-19 in Israel, a relapse for public mass surveillance seems inevitable. It is feasible to imagine that the massive use of digital intelligence will be preserved in times of stability, hence abiding to a “temptation of the devil” for maintaining a surveillance state.

The emergent utilization of SIGINT, LOCINT and what I call “HEALTHINT” or “PHYSINT” during the 2019-2020 Coronavirus outbreak serves as a watershed in intelligence studies. Currently, mass surveillance is a key tool for the maintenance of security and global health, and more worryingly, the empowerment of political entities. Excessive use of digital surveillance is becoming the rule, not the exception.

In a historical perspective, digital surveillance is the “lesser evil” when compared to older surveillance methods. It is a more effective utility that serves the same end while requiring less oversight than the latter. Contemporary digital surveillance methods reduce negative ethical ramifications as these methods of surveillance are not physically invasive compared to classic intelligence practices from the 20th century. 

However,  there is much legal obscurity in intelligence oversight mechanisms. This obscurity subsequently encourages governments to use digital surveillance for monitoring the masses, and not only a small percentage of the population as in the past times. Oversight and regulations on the ever-increasing use of mass surveillance in times of crisis are harder to enforce, as seen in the activities of intelligence agencies during the coronavirus outbreak in authoritarian and democratic countries alike. The difficulty in oversight and regulatory enforcement of ever-expanding digital surveillance fortified by developments of AI technology are a slippery slope that is steadily deteriorating the right to privacy. 

These are revolutionary times in a generational scope – the Orwellian prophecy is more feasible than ever before. The unlimited license to use advanced technologies of digital surveillance may not remain an exception for times of crisis: The “trigger-happy” manner of mass surveillance, by justifying the use of digital surveillance in emergency decrees in the Coronavirus crisis, could become a norm in relatively stable and peaceful times. Values such as the right to privacy are being ignored in the name of national security, and the level of oversight is decreasing in the name of global health. This domino effect could end up as an opportunity for defining the surveillance state as the rule and not the exception. This is a warning sign for the future of governance, democracy, and the international order, which will be substantially altered by digital surveillance. 

The recent developments in the technological, operational, and institutional aspects of digital surveillance all point to one main trend: they challenge the equilibrium of proportionality, necessity and intention in intelligence practice. Therefore, the way states value digital privacy may change, and they will weaken oversight mechanisms accordingly. Following these trends, the regulation and oversight of practices of digital surveillance is decreasing, and will continue to diminish in the years to come.