Of the many arguments deployed in the defence of surveillance technology there is one that doesn’t just miss the point: it misses all of them. Beguilingly simple, the expression “if you’ve done nothing wrong you’ve nothing to worry about” is, of course, not the answer to legitimate public concern over surveillance; it’s not even an answer. There are many reasons why - the absence of logical merit, ethical legitimacy and legal validity being but three. Yet the argument still seems to find support in repetition. A tragic example of the argument’s terrible consequences can be seen in the recent case of the wrongly convicted Post Office workers, some of whom had sadly died before eventually convincing the State that they’d ‘done nothing wrong’. Here then are 5 reasons for abandoning the argument once and for all:
- Presumption of Guilt. Let’s begin with the need for rebuttal. The argument requires you to prove you’ve done nothing wrong. This reverses our constitutional safeguard of the presumption of innocence until the State has proven guilt to the relevant standard and instead passes the burden of proof to the individual. Moreover, it puts the individual in the notoriously difficult position of having to prove a negative (e.g. “I’m not dishonest”).
- (a) Database infallibility (computer says “wrong”). Dependence on a database entry means that, if the computer says you’ve done something wrong, you’ve ‘done something wrong’. If that computer is looking for indicia of criminality, the irresistible inference is that you’re a criminal. If you’re already trying to prove a negative (see Reason 1) your burden becomes exponentially harder when you have to disprove the entries on someone else’s ‘infallible’ database in order to do it.
- (b) Database fallibility (computer is wrong). Sometimes however it’s the computer that has ‘done something wrong’. Anyone with a satnav knows this. As others have pointed out, people judged by algorithms often have to meet a standard far higher than the algorithm was itself. Confusing precision with reliability, this scenario means you must go beyond disproving an entry on someone else’s trusted database and must now discredit their system.
- Accept or admit. The argument imposes a false dichotomy then assumes the answer, excluding anything in between. It assumes benignity in all State intrusion. However, if it’s been determined that you’ve ‘done something wrong’ in a criminal prosecution, your best tactical option at trial (even as someone who hasn’t) may nevertheless be to plead guilty. Once you do so you have admitted culpability and vindicated the argument, adding insult to ignominy.
- Appeal to innocence. Opposing the argument is seen as self-incriminating: by resisting it you supply the corroborative evidence of ‘wrongdoing’ (in the same way as when you request a lawyer right after being told you are entitled to have one).
- Done nothing wrong? What exactly do we mean by ‘wrong’? Does speeding count? How about ‘pulling a sickie’ or looking for loopholes in the lockdown rules? Criminologists and sociologists know how humanity errs and the “if you’ve done nothing wrong ...” argument doesn’t leave many people to be consoled by innocence. In addition, life experience shows that rules change after technology’s introduced - things that weren’t ‘wrong’ when the systems were approved now are (aka ‘function creep’ which has been shown to increase with synchronisation of State functions and databases). These developments are rarely accompanied by new rights and, if you surrendered your old ones, there aren’t any more.
An alternative approach
When rebuilding by the light of the embers of World War II, the architects of the society we now enjoy made sure that we can live in a mature and tolerant democracy, free from arbitrary interference from the State. Repeating the “if you’ve done nothing wrong…” mantra means you accept that privacy and freedoms of assembly, speech etc. are enjoyable, not as inalienable rights, but only at the pleasure of the State. In a democratic society governed by the rule of law isn’t it for those intruding on fundamental rights and freedoms to justify their doing so? In times of crisis the need for justification is arguably all the greater, in case we distractedly settle for a permanent lowering of the threshold in the face of temporary emergency.
The proper role of technology in surveillance calls for balance, not only of what’s possible against what’s lawful, but increasingly alongside what we find acceptable. Societal acceptability is the ground where the accountable, ethical and legitimate use of surveillance technology is being shaped. In that shaping we would do well to resist placing too much reliance on technology, to underscore thoughtful leadership and to reinforce the role of independent oversight of ‘surveillance’ systems, whether they rely on biometric databases, traffic cameras or, as in the case of the profound injustices to the Post Office workers, employers’ accounting records.