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Mises Seminar, 29-30 November 2013, Brisbane, Australia Dr Ben O’Neill, University of New South Wales. Whistle-Blowing and Government Secrecy. Libertarianism and Privacy. Individualism and Privacy.
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Mises Seminar, 29-30 November 2013, Brisbane, Australia Dr Ben O’Neill, University of New South Wales Whistle-Blowing and Government Secrecy
Individualism and Privacy “Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.” ― Ayn Rand (1963) For the New Intellectual.
Individualism and Privacy • The libertarian worldview is characterised by a high degree of individualism. • Characterised by a great deal of respect for individual judgement —e.g., the capacity to judge interests, capacity to engage in mutually beneficial interactions, etc.
Libertarianism and Privacy What is the libertarian position on entitlements to privacy? • Entitlements to privacy are judged relative to property rights and non-aggression. • Privacy is regarded as an important cultural value in a free society.
Entitlements to Privacy • Bodily Integrity:Dealt with by contract and property. There is an assumption of bodily integrity and ownership of possessions unless there is agreement to the contrary. • Searches: If searched without consent, with no crime justifying the search, then this may constitute an aggression.
Entitlements to Privacy • Communications: Dealt with by contract and property. There is an assumption of privacy in carriage of communications unless there is agreement to the contrary. • Surveillance: If monitored without consent, with no crime justifying the examination, then this may constitute an aggression.
Entitlements to Privacy • Contractual rights to privacy: Follow directly by agreement with service providers. • Constraints on investigation agencies: In order to minimise breaches of rights, search and seizure should only occur where there is ‘probable cause’ for suspicion of a crime.
Constitutional Protection The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. — Fourth Amendment, US Constitution
Ethics of Whistle-Blowing • Whistle-blowers are often subject to contractual obligations to their employer requiring them to keep information private. • This is the case in military and intelligence agencies where the nature of the agency is secretive and the information is sensitive.
Ethics of Whistle-Blowing • Confidentiality agreements: Theseare a legitimate part of the business of many organisations and these are generally binding on the people who enter into them. • Unlawful contracts are not binding: This includes a confidentiality contract operating to prevent the disclosure of unlawful actions.
Ethics of Whistle-Blowing “To refuse to grant either party to an illegal contract judicial aid ... tends strongly towards reducing the number of such transactions to a minimum.” — McMullen v. Hoffman (1899), per Peckham J.
Ethics of Whistle-Blowing • Whistle-blowers are not lawbreakers: If a whistle-blower discloses evidence of unlawful actions, they are not breaking the law, even if this evidence was confidential. • In the positive-law sense, there may be legislative restrictions against disclosure. Whistle-blowers can be prosecuted unfairly.
Ethics of Whistle-Blowing • Classified information: This is a designation which is at the discretion of the agency which seeks to keep the information secret. • To say something is “classified” means only that the government has decreed that it should be kept secret.
Ethics of Whistle-Blowing • No exception for classified information: This self-designated classification cannot be determinative of the legal status of the information and the disclosure. • “Classified” status is often used to prevent the disclosure of evidence of wrongdoing in military and intelligence settings.
Ownership of Evidence • No legitimate ownership claim: The government acquires its assets through the proceeds of theft. It therefore has no legitimate ownership claim of its assets. • Information in government documents also frequently comes from unlawful surveillance or forced reporting requirements.
Ownership of Evidence • Evidentiary use of property: Even a legitimate owner of property cannot use their ownership claim to prevent the confiscation of their property as evidence of a crime. • E.g.: If a murderer stabs someone to death he cannot complain that his knife is confiscated as evidence of his crime!
Ownership of Evidence • Usually a person accused of a crime will attempt to distance themselves from any physical evidence: “That’s not my knife!” • The government instead attempts to assert an ownership claim to the evidence: “How dare you take my blood-soaked knife!”
The Libertarian Solution • Basic legal principles: Property rights and contracts would be respected. However, any contract restricting disclosure of evidence of criminal acts would be invalid. • Privacy assurances: Contractual assurances of privacy would be binding and actionable.
The Libertarian Solution • Rule of Law: Agencies would be required to operate within the law. If programs lead to “compliance problems” then this would mean that they cannot operate legally. • Equality before the law: Investigation agencies subject to the same constraints as ordinary people ― no special powers.
The Libertarian Solution • Probable cause for searches: Investigations agencies would have a genuine incentive to avoid privacy breaches. • Access from private firms: Allowable when there is a contractual allowance for this with the relevant customers, or where there has been a crime.
The Libertarian Solution • Investigation of crime: Agencies would use ‘probable cause’ to access data to look for evidence of a crime. They would pay a price for false-positives. • Whistle-blowing: Would operate the same way. They could break confidentiality to disclose evidence of a crime.
The Libertarian Solution • No government data centres: Surveillance would need to be targeted, so there would be no legitimate need for data centres to store vast quantities of personal data. • Decentralisation of power: No agency would “own the internet” ― access would be diffuse.
The Libertarian Solution • The main effects of imposing libertarian property and privacy principles: • Surveillance would need to be targeted rather than indiscriminate; • There would be penalties for agencies breaching assurances of confidentiality; • Investigation agencies would want to operate based on ‘probable cause’ to avoid losses.
