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Security Through Human Rights

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Abstract

Governments can only deliver lasting security by implementing their human rights obligations. That means using proportionate security measures that actually work, and tackling the root causes, instead of the symptoms, of radicalisation. Mass surveillance and ethnic profiling are techniques used in a number of EU countries. Although they might seem superficially appealing, in practice they are likely to be endangering public safety. The report argues that alternative counter-terrorism policies that comply with human rights standards are actually more effective at delivering security. Key findings: - Mass surveillance is killing democracy, because democracy can’t work without privacy. Over fifty years of research proves how humans conform to majority opinions and rules when we are in public or think we are being observed. Privacy gives us the freedom to create, think, debate and share information and ideas without fear of judgment. This allows societies to evolve and progress by changing the rules and concepts we live by, for example, protecting the environment or the sharing economy. Privacy also allows journalists, activists and politicians to hold our leaders to account because these people often rely on sources of information who are unwilling to come forward if they can be identified and punished. - The general population now tends to see the internet as a ‘public’ space where we cannot enjoy privacy. Recent research on internet usage confirms that significant proportions of journalists are self-censoring and portions of the public no longer feel free to use the internet to read about or communicate on issues that they fear might provoke disagreement. Mass surveillance is an obstacle to properly functioning democracy. Despite costing society such a high price, mass surveillance has failed to give us anything in return. All available evidence shows that it has never been useful in preventing a terrorist attack or identifying attackers. - In the vast majority of reported terrorist attacks, the perpetrators were either already known to security services or had previously come into contact with the authorities because of criminal activities or mental health problems. - When security services have failed to prevent an attack this is frequently because they have not had the resources to keep the perpetrator under surveillance or because information from other government bodies or foreign governments has been ignored. - The most useful sources of intelligence in combating terrorism tend to be the communities, families and acquaintances of perpetrators. The public remains the most important source of information for security services. Large-scale operations involving ethnic profiling in the USA, Germany and France have not led to anyone being prosecuted for terrorist offences. Research on the use of ethnic profiling for criminal offences shows that it leads to fewer offenders being caught. - Ethnic profiling makes the public more vulnerable: it creates a blind spot for security services because terrorist organisations simply recruit attackers of different ethnicities. Violent extremists come from a wide range of nationalities and ethnicities, including white (western) converts. Ethnic profiling also creates resentment among innocent members of the targeted community. That means these communities become less likely to volunteer information to the police. Being profiled also makes innocent victims feel marginalised and discriminated against, which contributes towards the root causes of radicalisation. - Governments combating radicalisation into violent extremism have focused on the very final stages of the process of radicalisation. Governments have decided to ignore the root causes, such as social and economic inequality and discrimination at home and collaboration on human rights abuses with repressive regimes abroad. The article recommends that governments should: - Give security services greater resources to carry out targeted surveillance, while making sure that strong judicial and parliamentary checks are in place to prevent abuse; - Strengthen or introduce community-based policing whereby police forces and communities develop relations of mutual trust. This would make it more likely that the police receive intelligence from the public. This policy should not involve the police recruiting informants. Instead it should be based on building a relationship of mutual respect between the police and the communities they serve. It should be applied generally to all communities and not targeted at specific minorities; - Security services should only use their powers to stop, search or detain people when they have objective evidence of criminal activity. Governments can follow the example of successful projects in Spain and the UK where police have been trained on how to avoid ethnic profiling, which has resulted in fewer stops and more arrests; - Implement their obligations to promote equal access to education, employment, and adequate housing and to combat discrimination against ethnic minorities, and to respect human rights in the conduct of their foreign relations. This would tackle the problem of radicalisation at its roots. - Governments have tried to convince the public that human rights are part of the problem, that privacy is just something we use to hide embarrassing secrets and that we can defeat terrorism without dealing with root causes. But the reality is that human rights keep us safe and if governments just kept to their legally binding obligations to implement them, our societies would be more secure.
SECURITY
THROUGH
HUMAN
RIGHTS
Dr. Israel Butler
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Table of contents
Note to readers 3
Executive summary 4
Introduction 10
Part I: Mass surveillance 12
I.A: Why mass surveillance is ineective in practice 12
I.B: The mass surveillance debate: ‘nothing to hide’ 15
I.B.i: The individual dimension of privacy 15
I.B.ii: Privacy as secrecy 15
I.B.iii: ‘Right to hide’ 16
I.B.iv: Reinforcing privacy as secrecy for the individual 17
I.C: Broadening the arguments against mass surveillance 17
I.C.i: Testing the arguments about mass surveillance and security 17
I.C.i.a: Mass sur veillance has never helped to prevent terrorism 17
I.C.i.b: Mass sur veillance is not even helpful to solve crimes after they have been committed 18
I.C.i.c: Mass surveillance makes us less safe by draining resources from more eective ways of collecting intelligence 18
I.C.i.d: Mass sur veillance can help criminals, foreign spies and terrorists 19
I.C.ii: Mass surveillance: privacy and democracy 20
I.C.ii.a: Privacy: freedom to form opinions, think and make decisions without interference 21
I.C.ii.b: Why we need privacy to form opinions and make decisions: the science 22
I.C.ii.c: How the theory applies in practice 25
I.C.ii.d: How does this apply to mass surveillance? 27
I.C.ii.e: Rewriting the privacy argument 31
Part II: Ethnic profiling 33
Part III: What solutions should civil society organisations promote? 37
III.A: Invest in methods of intelligence-gathering that make us safer 37
III.B: Self-help measures to protect privacy 39
III.C: Reduce vulnerability to radicalisation 40
Conclusions 45
Notes 46
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Note to readers
is background paper is a tool for non-governmental organisations (NGOs) working to counter the
rollback of human rights standards taking place in the name of counter-terrorism. e document
presents an alternative narrative, according to which security can only be protected if human rights
standards are properly implemented. It analyses two rights-violating counter-terrorism measures (mass
surveillance and ethnic proling) and explains that these tools are ineective and counter-productive.
In contrast, alternative counter-terrorism policies that are rights-compliant are eective to deliver
public safety. Although the paper concentrates on two counter-terrorism tools, the general argument
that human rights make societies safer can probably be applied to other rights-violating counter-ter-
rorism measures. e paper provides NGOs with the strongest arguments and evidence available to
help them advocate in favour of human rights standards. All arguments have been substantiated with
reference to reliable (and, where appropriate, academic) sources so that readers can follow up and
adapt those points most pertinent for their own advocacy.
is paper does not necessarily reect the opinions of the members of the Civil Liberties Union for
Europe.
e author would like to thank Natalija Bitiukova, Jelle Klaas, Eee de Kroon, Doutje Lettinga,
Cristina de la Serna Sandoval, and Lydia Vicente for their feedback and comments on an earlier draft.
All errors remain my own.
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Executive summary
Governments pit security and human rights
against each other
Terrorist attacks in Europe have placed po-
litical leaders under intense pressure to take
measures to make the public feel safe. Govern-
ments have reacted by expanding the powers
of security services, including by authorising
mass surveillance and lowering the threshold
of proof required by security services to stop
and search individuals or their property. In
several countries, stop and search powers have
been used mostly against (people perceived to
be) Muslims, which amounts to ethnic prol-
ing. Although these measures violate human
rights law, governments argue that human
rights obstruct the work of security services
and should be subordinated to the goal of
security, because without security no one can
enjoy their human rights. e public appears
to have generally accepted or acquiesced to
this narrative.
Human rights advocates can win back public
opinion
Human rights organisations have had dicul-
ty persuading the public to reject these unjusti-
ed limitations on their rights. To turn public
opinion, rights groups should alter their advo-
cacy in three ways. First, the rights movement
needs a single overarching narrative that can
be advanced consistently by all those who ad-
vocate against the rollback of human rights in
the name of security. To date, organisations in
dierent human rights sectors (such as media
freedom, racial equality, digital rights, fair trial
rights, the freedoms of NGOs) have advanced
messages particular to their eld of work. is
has led to the public receiving numerous dis-
connected pro-human rights messages, which
weakens the power of advocacy. Second, rights
advocates need to show that mass surveillance
and ethnic proling are ineective to com-
bat terrorism and actually threaten security.
ird, rights advocates should increase the
value attached to privacy in public opinion.
Advocates working on privacy have generally
rearmed a narrow understanding of the con-
cept as a personal right to hide secrets. In the
public mind, sacricing personal secrecy is an
“mass surveillance has never helped to
identify a terrorist suspect or prevent a
terrorist attack in the West
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acceptable price for the security they believe is
delivered by mass surveillance. Rather, privacy
advocates should develop a broader concept of
privacy and explain its collective benets for
democracy.
Mass surveillance is useless to prevent ter-
rorism and jeopardises public safety
e authorities argue that mass surveillance
provides vital intelligence to identify terrorist
suspects and prevent attacks. Research into the
contribution of mass surveillance programmes
in the USA nds that mass surveillance has
never helped to identify a terrorist suspect or
prevent a terrorist attack in the West.
Neither is mass surveillance (including data
retention) necessary for investigating crimes
after they have been committed. is is be-
cause the information that is usually of interest
to security services has long been collected by
internet and phone companies as part of their
normal business, including the location from
which calls are made or numbers dialled.
Mass surveillance requires nancial and sta
resources to store, lter and analyse the infor-
mation collected, and to follow up on potential
suspects agged by this system. is means
that resources are being wasted on a policy
that does not improve security.
In contrast, putting resources into more tradi-
tional targeted surveillance would have a big
impact on public safety. In the vast majority
of terrorist attacks in Europe since 9/11, some
or all of the perpetrators were known to the
security services. Security services failed to
act in time for a variety of reasons. In some
cases, resource constraints meant that they
had to abandon targeted surveillance of a
suspect to deal with other priorities. In other
cases security services failed to communicate
internally or failed to act on information sup-
plied by other governments. Mass surveillance
has become a lethal distraction and waste of
resources that is making it more dicult for
security services to use eective methods of
gathering intelligence that guarantee security.
A broader concept of privacy: mass surveil-
lance is destroying democracy
As well as endangering our security, mass sur-
veillance is also undermining democracy. A
large body of research from the disciplines of
social psychology and communications studies
proves that when human beings are in public
or feel they are being watched, we are reluctant
to express ideas and opinions that dier from
majority held opinions or social rules. Recent
studies and surveys also show that because
the public is now aware that governments use
mass surveillance, people tend to view phone
and internet communications as a public space
where they have no privacy.
It seems that this tendency to conform to the
majority-held opinion and social rules is hard-
wired in humans. Historically, disagreement
with the majority may have led to expulsion
from the group or denial of resources resulting
in hardship or death. In experiments, when an
individual disagreed with the group this led to
reactions in parts of the brain associated with
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pain, while expressing agreement with the
group triggered the production of oxytocin,
also known as the ‘love’ hormone.
Without privacy, individuals are unable to
develop and spread ideas that might challenge
majority opinions and existing rules. ere are
broadly two categories of people responsible
for the creation and spread of ideas. First,
opinion-shapers, who are so condent in their
ideas that they are not put o by hostile or
sceptical majorities. Second, the rest of the
public, who are either convinced of, or go
along with, majority opinions and rules.
ose who shape public opinion (such as jour-
nalists, philosophers, politicians, academics,
or activists) require privacy to research, create
and test ideas or new information. Concepts
that are now widely accepted, such as racial
or gender equality, universal surage, the
sharing economy or environmentalism were
once considered outrageous by majority opin-
ion. Unless opinion-shapers can evaluate and
rene their ideas in private, they will not be
condent enough to promote them in public.
In turn, members of the general public require
privacy to research and evaluate these ideas
and pieces of information and decide whether
they agree. Without privacy, the pressure to
conform to existing opinions and rules is so
heavy that individuals are reluctant to admit
to entertaining potentially controversial ideas.
Mass surveillance makes it much easier for the
authorities to monitor opinion-shapers. As a
result, opinion-shapers are more reluctant to
carry out their work because they feel that they
are more likely to be sanctioned in some way,
such as losing one’s job, being harassed, having
one’s property searched or losing funding. It
is well documented that the authorities have
used these tactics against politicians, activists,
NGOs, academics and journalists working on
issues including racial equality, human rights,
social justice, the anti-war and anti-nuclear
and environmentalist movements.
Because a substantial proportion of the public
now views communication over phone or in-
ternet as being in the public sphere, individuals
are self-censoring their opinions and refraining
from using these technologies to communicate
or carry out research. In turn, this means that
they are unable to make informed decisions
over whether to accept or reject current opin-
ions and rules or whether to approve or not of
their political leaders and their policies.
Because mass surveillance makes it harder for
new opinions and rules to emerge, our societies
will nd it dicult to adapt to new challeng-
es, hold our leaders accountable or make good
quality decisions.
In the vast majority of
terrorist attacks in Europe
since 9/11, some or all of the
perpetrators were known to
the security services”
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Ethnic proling is ineective and endangers
public safety
Examples of ethnic proling in the sphere of
counter-terrorism can be found in Germany
(the ‘rasterfahndung’), the USA (special reg-
istration, travel bans targeting certain Mus-
lim-majority countries) and, more recently,
France (in particular, property raids). ere is
little evidence that these operations uncovered
terrorist activity. Ethnic proling is inecient
and increases the threat to security, for two
reasons. First, it creates a blind spot that is ex-
ploited by terrorist groups who simply deploy
individuals that do not belong to the suspect
minority group. Individuals involved in violent
extremism belong to a wide variety of nation-
alities and ethnicities, including an increasing
number of white Western converts. Second,
ethnic proling makes minorities distrusting
and suspicious of security services, which
makes them less likely to cooperate with the
authorities and contributes to marginalisation,
which makes individuals more vulnerable to
radicalisation.
Intelligence-gathering measures that re-
spect human rights are most eective
Instead of investing in mass surveillance gov-
ernments should focus on eective methods
of collecting intelligence that comply with
human rights law. First, governments should
give security services more resources to carry
out targeted surveillance, while incorporating
judicial and parliamentary oversight to prevent
abuse.
Second, governments should invest in the
most common source of intelligence: the pub-
lic. Community-oriented policing based on a
genuine respectful partnership can create trust
and personal relationships between law en-
forcement personnel and the community they
serve. is in turn creates an environment
where the public spontaneously oers intelli-
gence to local police.
ird, security services should abandon ethnic
proling in favour of behavioural proling,
according to which individuals are targeted
only on the basis of objective evidence, such as
suspicious behaviour. In cases where security
services have replaced ethnic proling with
behavioural proling the overall number of
individuals stopped by police falls, the number
of suspects caught in searches rises, and the
proportion of ethnic minorities stopped, falls.
Governments can reduce radicalisation by
implementing their human rights obliga-
tions
Research shows that it is not possible to draw
up a prole of a typical violent extremist or to
predict who will resort to terrorism. However,
there is agreement around which factors make
people more vulnerable to radicalisation.
First, the existence of intense anger or frustra-
tion caused by an actual or perceived injustice.
is can come from an experience of discrim-
ination, marginalisation or exclusion - either
personal or vicariously on behalf of one’s
ethnic or religious group. ese feelings can
also arise from perceived injustices committed
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against one’s group in other parts of the world,
such as the West’s involvement in armed con-
ict or collaboration with repressive regimes
in the Middle East. Second, the absence of a
strong sense of identity or sense of purpose,
which may arise because of inconsistencies be-
tween or dissociations from national, cultural
or religious identities or lack of education or
employment. ird, these factors create a ‘cog-
nitive opening’ where the individual wishes to
correct these injustices and starts looking for
answers to explain why the world as they see
it is so unfair and how they might change it.
is opening is lled by extremist ideology
that twists religious teachings and provides
a ready-made narrative maintaining that an
evil, morally bankrupt West is repressing and
humiliating Muslims worldwide. Fourth, the
process through which this narrative is adopt-
ed by an individual, and through which the
moral taboos associated with killing innocents
break down, generally takes place in a group
or network where its members radicalise each
other often under the supervision of a mentor.
European governments trying to prevent
radicalisation focus on the nal stages of the
process and try to stop individuals from being
convinced of the answers given by extremist
ideology. It is dicult to identify potential
suspects and to do so the authorities have to
monitor entire communities. is fuels feel-
ings of suspicion and marginalisation among
minorities, which increases their vulnerability
to radicalisation and distrust towards the au-
thorities.
Instead, governments should address the
underlying factors that create the ‘cognitive
opening’ in the rst place. is would sig-
nicantly curtail the ow of individuals into
violent extremism. e authorities can achieve
this by implementing their human rights obli-
gations, both domestically (to promote equal
access to education, employment, health care
and non segregated housing) and during the
course of their international relations.
e over-arching message: human rights
keep us safe
If governments were to implement their hu-
man rights obligations, Europe would be safer
from terrorism. Mass surveillance and ethnic
proling are useless to ght terrorism and
make us less safe. Many attacks could have
been prevented if security services had been
given adequate resources to continue targeted
surveillance of suspects or were more ecient
“Without privacy, individuals are unable to
develop and spread ideas that might challenge
majority opinions and existing rules
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at sharing and acting on information. Gov-
ernments should properly resource law en-
forcement agencies to carry out targeted sur-
veillance (with appropriate safeguards), invest
in community-oriented policing and abandon
ethnic proling in favour of behavioural
proling. Combining these measures with
policies to promote equality and inclusion for
minorities and an ethical foreign policy would
deliver long-term security. By implementing
their human rights obligations, governments
will minimise threats to security, and allow
threats that do emerge to be dealt with more
eectively. Put otherwise, human rights keep
us safe.
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Introduction
In the name of ghting violent extremism,
European governments have progressively
introduced a number of measures that vio-
late human rights law. Broadly speaking, the
authorities have argued along the following
lines: terrorists want to destroy ‘Western
values, including human rights; we must not
let terrorists win by compromising these val-
ues, but we cannot ensure the survival of said
values without guaranteeing our security; we
cannot guarantee security without sacricing
our human rights, because human rights make
it more dicult for security services to per-
form.2 is rhetoric, which the human rights
movement has had diculty countering, has
won over signicant public support.3
It has been suggested that human rights or-
ganisations have had diculty winning the
rights versus security debate because dierent
sectors – with their own specialisations – have
each formulated their own counter-argu-
ments.4 Non-governmental Organisations
(NGOs) working on equality have concen-
trated on the problem of ethnic proling; civil
liberties NGOs have focussed on the right to
privacy, due process and on abuse of suspects
by security services; digital rights NGOs have
focussed on how individuals are losing control
over their data, which can be misused by com-
panies and the authorities to build (erroneous)
proles that damage the lives of individuals
and social groups; free speech NGOs have
focussed on the impact on journalism and de-
mocracy; others have focussed on questioning
the eectiveness of counter-terrorism mea-
sures. is has meant that the public has heard
a variety of arguments in defence of various
aspects of human rights but has not heard a
single, unifying, clear and consistent message
from NGOs.5
is paper proposes an alternative narrative: to
guarantee security, governments must imple-
ment human rights standards. Discussion will
concentrate on two rights-violating measures
that are being deployed in the name of secu-
rity: mass surveillance and ethnic proling.
ese measures undermine public safety. Mass
surveillance is ineective to prevent terrorist
attacks or identify terrorists. It also constitutes
a drain on the limited resources of security
services and distracts law enforcement agen-
cies from focusing on existing intelligence that
would prevent attacks. Ethnic proling cre-
ates mistrust and suspicion between security
services and ethnic minorities, which makes
these groups less likely to cooperate with and
volunteer intelligence to security services.
Ethnic proling also distracts security ser-
vices by focusing their attention on minorities
matching erroneous proles, making it eas-
ier for genuine suspects to avoid detection.
Beyond counter-terrorism policy, failures by
governments to implement their human rights
obligations in the context of foreign and so-
cial policy contribute to public insecurity. In
particular, subordinating rights promotion to
economic and other political goals in foreign
relations while failing to promote racial equal-
ity at home increases the vulnerability of seg-
ments of society to radicalisation and violent
extremism leading to terrorism.
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If governments wish to keep the public safe,
then security services should implement meth-
ods of gathering intelligence that are proven to
be eective; namely, targeted surveillance un-
der judicial scrutiny, behavioural proling and
community-oriented policing. Governments
should also implement their legal obligations
to promote racial equality for marginalised
ethnic minorities and prioritise respect and
promotion of human rights among the goals
of foreign policy.
is is not to say that human rights tools should
be co-opted into counter-terrorism strategies.
Rather, it is to say that implementing human
rights standards is an eective, holistic and
sustainable means of delivering security.6
e alternative narrative proposed here does
not pretend to be entirely original – it draws
together many of the existing arguments ad-
vanced by NGOs working in dierent sectors.
Its contribution is rather, rst, to weave these
arguments together into a single coherent
and short message; and second, to esh out
some of the missing connections between the
arguments, such as the link between privacy
and democracy, or ethnic proling and intelli-
gence-gathering.
Some rights advocates may prefer to oppose
mass surveillance and ethnic proling on
principle alone, rather than arguing that these
measures are ineective and counter-produc-
tive. is position is based partly on concern
that eectiveness-based arguments weaken the
pro-rights position, because if evidence showed
that these measures could be made eective,
then rights advocates would have nothing to
fall back on. However, the two positions can
be reconciled. Legally, when the state imple-
ments a measure that interferes with a right,
this must be proven to be necessary and pro-
portionate. at is, the proposed interference
must be eective – it must be apt to achieve
the intended legitimate aim.7 Furthermore,
even if particular measures that interfere with
a right might be proven to be eective, if they
destroy the essence of a right, they will not be
legally permissible.8 Put otherwise, eective-
ness arguments do not undermine rights-based
arguments. If anything, they go hand in hand.
Part I will focus on mass surveillance, examin-
ing its contribution to security and its impact
on privacy and democracy. Part I will also ex-
amine the privacy versus surveillance debate,
propose an alternative concept of privacy and
explain the link between privacy and democ-
racy, which has been inadequately explained
by privacy advocates. Part II will discuss the
contribution of ethnic proling to criminal
law enforcement and counter-terrorism. Part
III will propose alternative counter-terrorism
measures that have a proven record of eec-
tiveness in delivering security, and which can
be made compatible with human rights stan-
dards.
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Part I: Mass surveillance 9
e USA and many European countries
routinely carry out mass surveillance of their
own and foreign populations. In many cases,
this has been done in secret, without legal au-
thorisation (namely, judicial or parliamentary
oversight), or using vague or out-dated legal
provisions that did not explicitly authorise
mass surveillance.10
I.A: Why mass surveillance is ineective
in practice
[ Targeted surveillance,
mass surveillance, metadata,
content data]
When security services identify a suspect, they
may decide to watch and follow this individual
and read and listen to their calls, emails and
conversations to collect evidence of a crime.
Watching a specic suspect is known as targeted
surveillance, and is a well-established technique
used to investigate and prevent crime. To pre-
vent the police abusing their powers and inves-
tigating individuals who are not suspected of
doing something illegal, international standards
require security services to get the permission of
a judge or similar independent authority before
they can place a suspect under surveillance.11
In contrast, mass surveillance – also known
as ‘bulk’ or untargeted surveillance – is not
aimed at a specic suspect. Mass surveillance
involves the interception of large quantities
of information sent over phone or internet
services – for example, all the phone records
and internet histories or all text messages and
emails sent by everyone in a given country. is
information is kept for a number of months
or years so that security services can search
through it. Security services search the infor-
mation using certain criteria to try to identify
people involved with terrorism and crime. For
example, they may search for messages that in-
clude certain words (e.g. ‘caliphate’ or ‘ bomb’)
or calls made to or from a particular country
(e.g. Afghanistan or Iraq) to a particular city
(e.g. Brussels). Mass surveillance is supposed
to allow security services to look for new
threats that they do not already know about.12
e information collected through untargeted or
mass surveillance can be broadly divided into
two categories. First, metadata (also known as
‘communications data’), which identies things
like the websites a person visits, credit card
transactions, the email addresses of persons an
individual writes to, the subject lines of emails,
the phone numbers a person calls and to which
he/she sends text messages, their posts to social
media as well as their location.13 Second, con-
tent data, which refers to the actual content of
an email, text message, phone call, or video call
(e.g. over Skype or Facetime).
In an attempt to calm public concern over
mass surveillance, the authorities frequently
argue that people should not be worried about
security services collecting their metadata
because this does not allow the authorities to
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listen to or read the contents of a conversation.
However, metadata paints a very clear picture
of who we are and what we do and think, and
it is much quicker to nd these things out from
our metadata than it is to read through our
emails.14 e websites a person visits for news,
entertainment or research and their online
purchases give an indication of their political
or religious views, hobbies, personal interests
and lifestyle. Even if one does not read their
content, emails sent to or from a lawyer, doctor,
psychologist or bank show a person may have
health, family, nancial or legal problems. By
looking at how often someone sends and re-
ceives messages from a particular number or
email address, a person can work out the iden-
tity of your friends and how emotionally close
you are to them and your relatives. e subject
lines of someone’s emails show what issues
that person is speaking about.15 Location data
(routinely collected by applications on smart
phones) shows a person’s daily habits – where
he/she lives and works, which shops he/she
visits, his/her favourite bars and cafes, what
time he/she tends to go to the gym, where he/
she is when a photo is taken, a message is sent,
or a post is made through social media (such
as LinkedIn, Twitter, Pinterest or Facebook).16
Until recently, EU law (the Data Retention
Directive) required communications service
providers (like the companies that provide
mobile phone or internet services)17 to collect
metadata.18 In 2014, the EU’s Court of Justice
declared that this legislation was illegal be-
cause of how seriously it invaded individuals’
privacy.19 In 2016, the EU’s Court of Justice
also found that national legislation that some
governments introduced to replace the Data
Retention Directive was also illegal.20 Despite
this ruling, most countries in the EU still
collect metadata.21 Some EU countries, such
as France, the UK, the Netherlands, Hungary,
Lithuania and Poland, have recently created,
or are in the process of creating, new laws that
would give security services the power to col-
lect content data or metadata.22
Once metadata and content data have been
collected from the internet, security services
then try to narrow down the amount of data
that they will search and analyse. ey do this
by searching the data using certain criteria.
Data that matches these criteria is kept for
further analysis, and data that does not match
is put to one side. ese search criteria might
be certain key words appearing in emails or
messages, the locations from which messag-
es were sent or received or other patterns of
communication. Even though ltering the
data collected in this way helps to reduce the
amount of information that analysts have to
examine, the volume of data that matches the
criteria is still extremely large – still too much
for security services to analyse. For example,
recently leaked documents reveal that UK in-
telligence services collect far more information
than they are able to analyse or use – gures
for one UK surveillance programme showed
that 97% of the data collected was not even
being read.23
When security services do try to analyse the
data, it requires considerable resources. is is
because even after the data is ltered to keep
only the information that matches the search
criteria, most of the individuals identied will
be innocent (referred to as ‘false positives’).
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Furthermore, the search criteria will also miss
some potential suspects (referred to as a ‘false
negative’).
In reality, the situation would be signicantly
worse. e sources cited above point out that
it is impossible that the security services could
hope to develop such accurate searches, partly
because terrorists constantly adapt their meth-
ods to avoid detection, such as changing how
they communicate, the software they use or
the code words they use. So the number of in-
nocent people identied as terrorists, and the
number of terrorists who are not identied at
all, would be much higher. is illustration of
how mass surveillance works helps to explain
why, in practice, this tool has never been use-
ful to identify a terrorist suspect or prevent an
attack (discussed below).
Wild goose chase
Statisticians have tried to illustrate the ineectiveness of mass surveillance using a hypothetical ex-
ample. ey present an imaginary scenario according to which the security services have developed
a method of detecting a terrorist according to their voice.24 is machinery is assumed to be 99%
accurate. at is, when anyone makes a phone call, this machine will automatically detect with 99%
accuracy whether the individual in question is a terrorist. Let us imagine that the security services use
this equipment in a country with a population of 60 million people, where they estimate that 3,000
people are involved with terrorism.25 A 99% accurate detection method would correctly identity 2,970
of the 3,000 terrorists. irty terrorists would not have been identied at all and would escape the
attention of the security services. Furthermore, because the system is only 99% accurate, it would also
identify 1% of the general population as terrorists. at would amount to 600,000 innocent people
wrongly identied as terrorists.
e security services then have to carry out further investigations to be able to nd the 2,970 genuine
suspects from among the 600,000 or so people identied by the system as terrorists. Journalists in the
USA report that something similar occurred after the 9/11 attacks. Hundreds of FBI agents were sent
to investigate thousands of potential suspects agged by the NSA’s mass surveillance programmes as
potential suspects. ese investigations invariably led to dead ends and diverted ocers away from
carrying out investigations built on more traditional and eective methods.26
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I.B: The mass surveillance debate: ‘nothing
to hide’ 27
Governments argue that mass surveillance
is necessary to prevent terrorism and serious
crime. e main objection to mass surveil-
lance from the public and from activists is that
it violates privacy.
[Nothing to hide]
Advocates of mass surveillance argue that indi-
viduals who have ‘nothing to hide have nothing
to fear’ from the authorities. ey maintain
that security services are only watching out for
criminal activity and are not interested in inti-
mate, personal or condential information. e
‘nothing to hide’ argument frames privacy nar-
rowly, in two ways. First, it portrays privacy as
being of value only to the individual. Second, it
portrays privacy as something negative, which
is used to conceal discreditable secrets. Defenders
of privacy have countered with a ‘right to hide’
argument. However, this has only reinforced a
narrow understanding of privacy, which does
not appear to be important enough to outweigh
the desire for security that the public believes can
be delivered by mass surveillance.
I.B.i: The individual dimension of privacy
Privacy is important to us as individuals for
at least two purposes.28 First, humans tend
to choose to be alone or with close friends or
relatives so that we can take a rest from fulll-
ing a particular role (parent, colleague, sibling,
boss), unwind, express intimacy or recover from
a dicult experience like a rejection. Second,
for certain activities, we tend to want a degree
of anonymity, whether in the physical world
or online.29 is can include when we want to
test out new experiences, do something that
breaks social convention, or when we need to
address personal problems with a professional
like a doctor, lawyer or psychologist.
e ‘nothing to hide’ argument does not nec-
essarily contend that privacy is not important
to individuals. Rather, it maintains that the
security services do not really threaten indi-
vidual privacy: even though the authorities
collect everyone’s information, they have no
interest in our personal lives and will only
examine data to prevent or solve crimes. Gov-
ernments also maintain that even if the simple
act of collecting information interferes with
privacy, this minimal intrusion is justied to
protect national security. In a nutshell, the
state argues that it does not really invade our
privacy, and even if it does, this is a small price
to pay for safety.
I.B.ii: Privacy as secrecy
e second element of the ‘nothing to hide’
argument undermines the legitimacy of pri-
vacy by labelling it a vice. e authorities are
implicitly saying that our information can only
fall into one of two categories: personal infor-
mation, or information about illegal activities.
According to the government narrative, the
public has no reason to object to mass surveil-
lance on privacy grounds because our personal
information is safe. Because, according to our
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governments, security services are only inter-
ested in information about crime, anyone who
insists on opposing mass surveillance must
be doing so not because they care about their
privacy, but because they are hiding illegal
behaviour.
Put otherwise, the authorities’ position is that
privacy’s only value is to preserve secrets: ei-
ther secrets that the security services are not
interested in, because they are personal, or
secrets that the security services are interested
in, because they are illegal. Public safety is
more valuable than personal secrets, which the
security services are not interested in anyway.
And illegal secrets do not deserve secrecy.
I.B.iii: ‘Right to hide
Privacy advocates have confronted the ‘noth-
ing to hide’ position with at least three ‘right
to hide’ arguments.30 e rst concerns the
psychological impact of mass surveillance.
ere is some evidence to suggest that a lack
of personal privacy can lead to mental health
problems.31 However, this is probably a weak
argument for advocates ghting against mass
surveillance. is is because most of the
empirical evidence concerning the impact of
surveillance on mental health is taken from
studies of surveillance in specic institutional
settings with a clear relationship of hierarchy,
such as surveillance in the workplace, schools
and prisons. is is probably not very con-
vincing for the public because it is not easily
comparable to more subtle mass surveillance
by the security services. In the absence of more
directly pertinent evidence, the assertion that
mass surveillance is leading to stress, anxiety,
depression and violence among the general
population is unlikely to sway the public.32
A second foundation for the ‘right to hide’
argument is based on the safety of informa-
tion once it has been collected and placed in
databases. ere is evidence that security ser-
vices have abused their powers by monitoring
perfectly legal activity, for example by stalking
love interests and viewing and sharing com-
promising photos and videos of members of
the public.33 As will be discussed below, data
can also be stolen by criminals, foreign gov-
ernments and terrorists who may misuse it in
multiple ways – including for blackmail, theft
and murder. e more examples that can be
found and publicised, the more the public may
see that mass surveillance poses unacceptable
risks. is is a potentially powerful argument.
However, it may be more likely to convince the
public that they require better safeguards to
ensure appropriate data protection rather than
prompting people to call for an end to mass
surveillance altogether.
e third ‘right to hide’ argument questions
the way that the ‘nothing to hide’ camp cate-
gorises behaviour in a binary manner as either
personal or illegal. is position argues that
there is a third category: legal behaviour that
goes against social conventions or majority
views. According to advocates, concealment
does not imply illegality. Concealment merely
allows individuals to escape being judged (em-
barrassed or shamed) for unconventional but
lawful behaviour.
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is is an inherently hard argument to win,
because even if it denies illegal behaviour,
proponents of this argument are necessarily
‘outing’ themselves as hypocrites who engage
in socially unconventional behaviour that they
wish to conceal from other people.34 As will
be discussed below, individuals tend to be
reluctant to admit openly, outside the safety
of a trusted audience, to diverging from social
norms. is will make it dicult to motivate
signicant proportions of the public to support
a ‘right to hide’ couched in these terms.35
I.B.iv: Reinforcing privacy as secrecy for the
individual
e broader problem with all ‘right to hide’
arguments is that they reinforce a narrow un-
derstanding of privacy as a right whose only
purpose is to allow individuals to keep se-
crets. When presented with a choice between
preserving personal secrecy or guaranteeing
security, a large proportion of the public has
chosen security, which they believe can be de-
livered by mass surveillance.36 If campaigners
wish to tip the scales in favour of privacy, they
should attack both sides of the equation. First,
promote a broader understanding of privacy
that focuses more on its collective benets to
social innovation and democratic accountabil-
ity. Second, consolidate the currently scattered
evidence that proves that mass surveillance is
failing to deliver on its promise of security.
I.C: Broadening the arguments against
mass surveillance
e remainder of Part I of this paper will ar-
gue that mass surveillance is both ineective
against terrorism and a threat to security. It
will then propose a concept of privacy that
goes beyond concealment: the liberty to think,
form opinions and make decisions freely. is
understanding of privacy helps to explain the
collective functions of this value, in particular
its role in democracy (both social innovation
and democratic accountability). e remainder
of Part I will then explain how mass surveil-
lance interferes with the collective dimensions
of privacy.37
I.C.i: Testing the arguments about mass
surveillance and security
e following section sets out the case that
mass surveillance is not a necessary (or even
a useful) tool in the ght against terrorism
and crime. Contrary to what we are told, mass
surveillance does not make us more secure, but
rather makes us more vulnerable to terrorism
and crime.
I.C.i.a: Mass surveillance has never helped to
prevent terrorism
Mass surveillance has never been useful to pre-
vent a terrorist attack, or even to identify a ter-
rorist suspect.38 is is the conclusion reached
by two pieces of research into the NSA’s mass
surveillance programmes. One report was
produced by a US think tank and based on
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an analysis of over 200 cases concerning in-
dividuals indicted, convicted or killed abroad
because of their involvement in an act of ter-
rorism since 2001. e other was produced by
a US congressional oversight committee, based
on interviews with security service sta and
access to classied documents, among other
sources. e research nds that even where
information discovered through mass sur-
veillance has revealed evidence connected to
terrorist activities, the same information was
already available to security services through
traditional forms of investigation, such as
targeted surveillance, informants or tip-os
from the public. Put otherwise, the available
evidence shows that mass surveillance has
been useless to prevent attacks in the West, or
to identify terrorists.39
I.C.i.b: Mass surveillance is not even helpful to
solve crimes after they have been committed
As well as failing to prevent terrorism, evidence
from EU countries suggests that mass surveil-
lance is not even useful to help resolve crimes
that have already been committed. Studies on
Denmark, Germany and the Netherlands in-
vestigating whether the collection of metadata
under the EU Data Retention Directive has
been useful to help solve and prosecute crime
have found that the collection of metadata has
had virtually no eect.40 In some cases, the use
of metadata made no dierence to whether a
defendant was convicted. In other cases, the
evidence contained in the metadata that was
useful to the authorities was information that
telecommunications companies already col-
lected for billing purposes before the retention
of metadata was made mandatory. For exam-
ple, the list of numbers to which calls are made
or messages sent, what time these were made
and their duration.
Some EU governments have provided anecdot-
al examples of when metadata has been useful
to investigate criminal activity, or when the
absence of metadata has been a barrier to in-
vestigations. It is dicult to identify examples
where the information referred to could not
been obtained through other methods, such
as phone numbers kept for billing purposes,
information that could be acquired through
targeted surveillance during an investigation,
or location data, which can be acquired by tri-
angulating phone signals from mobile phone
towers.41
I.C.i.c: Mass surveillance makes us less safe by
draining resources from more eective ways
of collecting intelligence
Because mass surveillance is ineective to pre-
vent terrorism, and is not even useful to solve
crimes already committed, it means that the
resources spent to collect and analyse informa-
tion, and to follow up on false leads, are being
wasted. is is not just an irresponsible use
of taxpayers’ money. It is endangering public
safety.
Security services have limited resources – they
must prioritise how to use their sta and bud-
gets.42 Research into major terrorist attacks
in Europe since 9/11 shows that the security
services usually already knew of some or all of
the attackers involved. ese include the at-
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tackers involved in the Madrid train bombings
in 2004, the London bombings in 2005, and
the more recent attack against Charlie Hebdo
magazine and the Paris shootings in 2015,
as well as the Brussels bombings in 2016 and
the Manchester bombing and London Bridge
attack in 2017. In some cases, security services
decided not to monitor these individuals more
closely because their limited resources re-
quired them to prioritise between targets and
they chose to monitor other suspects. In other
cases, security services ignored information, or
failed to share information with each other, or
were too slow to act on the information they
were given.43
It seems that the only attacks where per-
petrators are less likely to be known to the
intelligence services as potential terrorists are
those committed by ‘lone actors’, in particular
when they are self-radicalised.44 However, it
seems that such attackers were either already
known to the police for their criminal activity,
and/or to other state bodies because of their
mental health problems. Indeed, Europol has
suggested that mental health problems may
have been the main factor behind recent lone
actor attacks.45 Given that these individuals
are already in contact with the authorities, it
seems untenable to suggest that indiscriminate
mass surveillance of the public at large would
be helpful to identify them.
Mass surveillance is making the public less
safe because it pulls resources away from ef-
fective counter-terrorism tools, like targeted
surveillance and improved intelligence shar-
ing, which could have helped prevent many
attacks. Human resources are being diverted
away from monitoring existing suspects and
into analysing new information thrown up
by mass surveillance. Former FBI and NSA
sta have criticised this approach, explaining
that security services are already trying to nd
a needle in a haystack when using traditional
methods of intelligence gathering; collecting
more (useless) data through mass surveillance
just adds more hay to the pile.46 Furthermore,
governments are investing in mass surveillance
instead of focusing on boosting the capacity
of security services to carry out targeted sur-
veillance. For example, in the UK, the cost of
collecting the public’s metadata has been esti-
mated at around 1 billion GBP over a ten-year
period, which some have argued could instead
be spent on hiring at least a further 3,000
police ocers (over the same ten-year period)
– which would be a signicant boost to sta
numbers, considering that MI5 is reported to
employ only 4,000 sta.47
I.C.i.d: Mass surveillance can help criminals,
foreign spies and terrorists
Electronically stored information is vulnera-
ble. Hackers, often using tools stolen from in-
telligence agencies, are able to bypass security
measures put in place by companies, public
authorities and governments to keep personal
data and commercial and state secrets safe.48
Personal data held by private companies is
frequently lost, stolen or held to ransom.49 For
example, in 2015 at least two telecommuni-
cations providers were victims of hackers who
stole personal details of millions of customers
and, in one case, the bank details of over
15,000 customers.50 In 2015, a website facil-
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itating extramarital aairs was hacked, re-
vealing the names, addresses, phone numbers
and sometimes bank details of over 30 million
people (including government and military
personnel), exposing them to blackmail and
theft, and leading some individuals to commit
suicide.51 In 2014, hackers stole data from 500
million Yahoo accounts.52 In 2012, data relat-
ing to the accounts of over 100 million Linke-
dIn members, including passwords, was stolen
and put up for sale by hackers.53 Hacking is not
the preserve of cyber criminals. Facebook has
warned of foreign governments attempting to
hack into individuals’ social media accounts,
and Western security services have warned
university researchers that foreign govern-
ments may attempt to steal their work through
cyber espionage.54 Russian hackers recently
placed emails from the Democratic National
Committee in the USA online, directly inter-
fering in national elections.55 Government in-
stitutions, even in countries with sophisticated
security services, are also frequently victims of
data theft. In 2015, a US federal government
website was hacked, revealing the details of
over 22 million current and former federal em-
ployees and applicants for federal government
jobs, including those in sensitive positions
with security services like the FBI.56 In 2016,
the Federal Reserve Bank of New York lost
to hackers over 100 million USD belonging
to the Bangladesh central bank.57 Research
from the UK suggests that from 2011 to 2014,
there were around 400 instances where local
authorities either lost or had data stolen from
them. Almost 200 physical storage devices,
like mobile phones and laptops, were lost or
stolen during the same period. In 2014, there
were over 100 instances of data loss or theft in
the UK’s health service.58
Ending mass surveillance will not necessar-
ily prevent future hacks and thefts of data.
However, mass surveillance places even more
information about people into databases held
by governments and private companies. e
more information that is held about us in digi-
tal form, the more likely criminals or terrorists
are to nd a database with vulnerabilities. is
increases the opportunities for wrongdoers
to blackmail or steal from a target, or study a
target’s habits and movements in preparation
for an attack.59
I.C.ii: Mass surveillance: privacy and
democracy
e previous section explained that in practice
mass surveillance fails to make us safer. It is a
waste of public resources and it leaves us more
vulnerable to criminals, foreign spies and
terrorists. Apart from undermining security,
mass surveillance is also a threat to privacy. As
discussed above, when campaigning against
mass surveillance, rights NGOs have pre-
dominantly portrayed privacy as a right that
benets individuals. at is, most campaigners
have not invested a lot of eort in explaining
to the public that privacy also has collective
benets for society as a whole, in particular the
role of privacy in democracy.
Some rights advocates have argued that
mass surveillance is bad for freedom of ex-
pression and freedom of information, which
are pre-requisites for a properly functioning
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democracy.60 However, there have been few
attempts by campaigners to explain how pri-
vacy plays an essential role in the free develop-
ment and exchange of ideas and information
that allows societies to create new rules and
evaluate how existing rules are being applied
by their leaders. Instead, it is more common
for campaigners to draw emotive parallels be-
tween mass surveillance and George Orwell’s
Big Brother, while sometimes pointing out
that surveillance is a tool used by totalitarian
regimes to control their populations.61
Evidence from surveys suggests that people
tend to view privacy as a personal commodity
that allows them to conceal information about
themselves, which they are willing to trade in
return for security and even in return for com-
mercial services, like discounted prices, free
use of social networking platforms or free use
of software.62 is may be because the public is
unaware of the collective (as opposed to indi-
vidual) benets of privacy, or because the link
between the individual and collective benets
has not been explained convincingly. If the
public can be persuaded that privacy is an
inalienable and common good, rather than a
tradable personal commodity, then they might
become more motivated to defend it against
mass surveillance. e following sub-sections
oer an alternative, broader conception of pri-
vacy and explain its democratic functions.
I.C.ii.a: Privacy: freedom to form opinions, think
and make decisions without interference
Privacy is neither particular to Western cul-
ture nor to modern times. Anthropological
studies suggest that privacy has been protected
by all cultures. Societies may dier in the ways
that they protect privacy and may draw the
line between what is public and what is private
in dierent places, but privacy is a universal
value.63
Privacy is our right to choose and control what
things we share about ourselves with other
people. We share information, ideas, opinions,
property, personal space and our bodies. We
share these things with our partner, family
members, friends, classmates, colleagues, ac-
quaintances, strangers and the general public.
And while we choose to share dierent things
with dierent people, we also choose not to
share certain things with anyone. When we
have control over these choices, we can be said
to have privacy.64 When our control over these
choices is taken away from us, our privacy is
invaded. Mass surveillance eliminates privacy
almost entirely because it results in everything
we do with our phones, computers and the
internet being recorded. We use these devices
constantly for almost all aspects of our lives.
As a result, we have lost control over how we
share information about ourselves.65
Because privacy gives us a choice over whom
we share information about ourselves with, it
allows us to limit how far we disclose certain
information – put otherwise, it allows us to
‘hide’. But privacy is about much more than
hiding. It is about creating a space where we
have the freedom to exchange information,
think and take decisions about our societies
and how they are being run.66
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I.C.ii.b: Why we need privacy to form opinions
and make decisions: the science
Privacy gives human beings freedom from
social control. e philosophers Bentham and
Foucault developed the idea that removing
an individuals privacy, by placing them in a
physical environment where they may be mon-
itored at any time, is the most eective means
of ensuring that this person will bring his/her
behaviour in line with social rules.67
Studies in sociology and criminology demon-
strate that surveillance of individuals in insti-
tutional settings, like students, prisoners or
workers, does indeed tend to induce confor-
mity with existing rules.68 Lawyers, political
scientists and philosophers have asserted that
Bentham’s and Foucault’s hypothesis also holds
true outside institutional settings, arguing that
the phenomenon of social control applies to in-
dividuals in society at large.69 But for the most
part, these academic disciplines have relied
more on their own expertly informed intuition
(and a few references to the use of surveillance
by totalitarian regimes), than on any empirical
research to back up their claims.70
[ Social control, the spiral of silence and
the chilling eect]
Research in the eld of social psychology, which
has gone mostly unnoticed by other academic
disciplines interested in privacy, has delivered
a mountain of empirical evidence proving that
Bentham’s and Foucault’s theory does have
more general application. eir experiments
prove that human beings tend to conform to the
rules and beliefs of society. is phenomenon is
referred to as ‘social control’. Individuals who
feel that they are being watched are even more
likely to comply with social expectations and to
agree with the opinions of the majority.71 is
body of research proves that the pressure hu-
mans feel to conform is so great that the mere
suggestion that we may be monitored causes us
to change our opinions and behaviour to match
social expectations. is is so even if we know
that no one is actually watching, and even if
the majority opinion is factually incorrect.72
Building on early research in the eld of social
psychology, scholars from the eld of communi-
cations studies have carried out similar tests to
examine whether the phenomenon of social con-
trol also applies to the way that political opin-
ions are formed in societies. A signicant body
of research conrms that individuals tend to
be unwilling to give their opinions on political
questions if they think that these run contrary to
the majority view. Scholars of communications
studies label this phenomenon of self-censorship
the ‘spiral of silence’.73 is largely corresponds
to the idea of the ‘chilling eect’ used by lawyers
and activists working on free speech and free-
dom of association and assembly, predominantly
in the USA. e chilling eect refers to the ten-
dency of individuals (in particular journalists
and interest groups) to self-censor when they
suspect that they may be subject to surveillance.
Unlike the concepts of the spiral of silence or so-
cial control, the concept of the chilling eect was
mostly based on common sense and anecdotal
evidence rather than empirical support, until
very recently.74
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e general rule that individuals conform to
majority opinions is not absolute – otherwise,
the rules and practices of our societies would
not have evolved as they have. New ideas that
may eventually change majority opinions
begin with a minority who are not afraid to
speak out and challenge majority-held views.
Majorities change their opinions through a
gradual process. Social psychology research
has found that new opinions and ideas can
cause the majority to change its opinions if
the proposition in question is put forward
consistently. If a minority is consistent in its
message, it is perceived by members of the
majority to be more condent and certain
of its views. And as the minority grows, the
minority’s perceived competence – and hence
their persuasiveness – grows too.75
Research by communications scholars on the
spiral of silence gives us a clue as to where
minority opinions come from. Studies have
found that there is always a ‘hard core’ of in-
dividuals who are willing to speak out even if
they are contradicting the majority-held view.
is ‘hard core’ is formed by individuals who
have a high certainty of the correctness of what
they are saying. In contrast, those who are less
certain about the correctness of the majority
position are more likely to ‘go with the ow’.
at is, they have not actively and consciously
evaluated and agreed with the majority posi-
tion. Rather, they accept it and are unlikely to
express a dierent opinion.76
Social psychology research explains that
minorities (in this context, those holding a
minority opinion) are regarded by the ma-
jority with disapproval and can be subject to
aggression from the majority. Because of this,
individuals in the majority are unlikely to im-
mediately admit in public that they have been
persuaded by the minority to change their
opinion. Because individuals fear disapproval
from the majority, they tend only to admit that
they have changed their opinions in private.77
Spiral of silence research explains that as
individuals begin to feel that their opinion is
gaining popularity, they become more willing
to speak out in support of what they once saw
as a minority view.78
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Hard wired to fit in
e tendency among humans to follow social conventions and conform to majority views seems to
have become hard-wired in humans. Early social psychology experiments showed that individuals
who express disagreement with the rest of their group become highly stressed because they fear
disapproval and hostility from the majority.79 Recent research incorporating brain scans into these
experiments shows that when an individual expresses opinions or beliefs dierent from their peers,
this actually activates part of the brain associated with negative emotions.80 Research also suggests
that the hormone oxytocin (responsible for stimulating bonding between sexual partners and mothers
with their babies) motivates humans to cooperate with members of their group and follow group
rules.81 Put otherwise, it appears that humans have evolved to t in and go along with the majority –
probably because we depend for our survival and prosperity on being part of a strong and harmonious
group. When we disagree with the majority, we risk being isolated from the group – formerly, this
could have meant denial of group benets like food, shelter and physical protection.
Even if a particular minority is unable to per-
suade the majority to adopt its position, the
debate that takes place appears to result in bet-
ter-quality decision-making. is is because
those in the majority seem to take the time
to evaluate the minority position and suggest
adjustments to the majority-held opinion or
rule. It seems that because individuals belong-
ing to the majority do not feel threatened by
the minority, they are more likely to actively
engage in a cognitive process of evaluation –
which can result in accepting the new view or
suggesting ways of adjusting the majority rule
to accommodate the objections of the minority
that seem to be valid. In contrast, individuals
who are part of the majority are more likely
to accept the majority view without critically
evaluating it. It has been suggested that this
is because the stress that individuals feel when
they challenge the majority makes it more
dicult for the parts of the brain responsible
for cognitive thinking to be activated – so
individuals are more likely just to accept the
majority view even if they have not actively or
internally endorsed it.82 Some social psychol-
ogy research suggests that over time, majority
views consolidate into permanent attitudes
among individuals who did not necessarily
initially agree with them, but have not been
prompted by contradictory views to evaluate
the majority position and actively make up
their minds.83
Interestingly, this analysis seems to conrm
the concept of the ‘moveable middle’ that is
used by some activists to help design campaign
strategies. Simply put, this idea postulates that
there is often a group in society that strong-
ly supports an idea, and another group that
strongly opposes it. And then there are those
in the middle who are not sure where they
really stand but tend to stick with the prevail-
ing majority view. It is this middle section of
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society that can be moved over to endorse the
values put forward by activists.
I.C.ii.c: How the theory applies in practice
Privacy is vital to democracy because it gives
us the liberty to choose what we share about
ourselves and whom we share this information
with. Without privacy, our thoughts, ideas and
opinions are open to anyone. And because we
tend to fear going against majority opinions,
without privacy we are reluctant to learn or
communicate about ideas that challenge the
views of the majority. Privacy allows us to
share information and develop ideas freely
because we can choose to limit our commu-
nication to those people with whom we feel
comfortable expressing our views. is gives
us the freedom to research, think and discuss
freely without the pressure to conform to the
majority view.84
[ Social innovation and democratic
accountability]
Privacy facilitates at least two democratic
processes. First, the process of creating new or
adjusting existing social rules, practices, laws
and policies. I will refer to this as social innova-
tion. Second, the process of evaluating whether
power-holders (such as members of government
or business or religious leaders) are applying
existing rules properly. I will refer to this as
democratic accountability.
Privacy is important at two stages in the pro-
cesses of social innovation and democratic ac-
countability. First, to allow those people who
shape opinions (by generating new ideas and
information for discussion by the public) to
develop, test and rene this information before
sharing it. ese opinion-shapers are referred
to in spiral of silence research as the ‘hard
core’ of individuals (noted above) who are so
convinced of their opinions that they do not
self-censor even in the face of a majority with
a contrary opinion. Privacy also facilitates the
second stage, which is when individual mem-
bers of the public research, discuss and evalu-
ate whether they want to reject or to act on the
new ideas and information.
Put otherwise, opinion-shapers (such as ac-
ademics, social commentators, journalists,
activists or politicians) use privacy to create,
test and rene new rules and concepts (social
innovation) and to assess how existing rules
are being applied by our political, commercial,
religious and other leaders (democratic ac-
countability). Many ideas that we now take for
granted as valuable social or legal rules were
once considered outrageous. For example, the
abolition of slavery, racial equality, the crim-
inalisation of domestic violence, the decrim-
inalisation of homosexuality, animal welfare;
or more recently, crowd-funding, the sharing
economy, recycling, human rights, social me-
dia, freedom of information, globalisation, so-
cial entrepreneurship and environmentalism.85
Opinion-shapers need space to research, test
and rene ideas because, as noted, if minori-
ties want to persuade the majority, their ideas
must be convincing, well evidenced and pre-
sented consistently and condently. Also, as
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noted, opinion-shapers need to be certain of
the correctness of their ideas if they are not to
self-censor due to fear of disapproval from a
hostile majority.
Once opinion-shapers have tested and rened
these rules, concepts and assessments private-
ly, they can be released to the general public
for consideration. As discussed, individuals are
unlikely to publicly express support of minority
ideas for fear of disapproval from the majority.
at means that for individuals to learn about,
evaluate and discuss opinions and information
that challenge the majority view, they require
privacy. If people progressively become con-
vinced of (aspects of) new ideas or information,
they gradually become ready to support them
openly, which will lead to changes in majority
opinion. Conversely, if minority opinions do
not emerge to challenge majority views, then
majority-held opinions gradually become more
deeply entrenched among individuals who did
not necessarily agree with them, but have not
been prompted to critically evaluate them.
PRIVACY & DEMOCRACY
Release to general public
for consideration
OPINION SHAPERS
e.g. journalists, scientists,
politicians, activists
express opinion in public
SOCIAL
INNOVATION
change/create
new rules e.g.
introduce recy-
cling, equal pay
for women
DEMOCRATIC
ACCOUNTABILITY
hold leaders
accountable, e.g.
vote in election,
write to MP
Develop
test & refine
new ideas &
concepts
Investigate
how leaders
are applying
existing rules
PRIVACY PRIVACY
express
opinion to
trusted
friends
discussresearch
PRIVACY
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is process allows new social norms to emerge
or existing norms to be adjusted (which are
often codied into laws and policies) and also
for democratic accountability when the infor-
mation being discussed relates to how existing
norms are being applied by political, religious or
business leaders. Because majority-held views
become entrenched over time even among in-
dividuals who did not necessarily agree with
them, if minority opinions become silenced,
societies are less likely to make well-informed
decisions about what laws or leaders they want.
is is because fewer ideas and less informa-
tion will be created by opinion-shapers for the
public to debate, and the public will debate
less. Unquestioned leaders are then more likely
to make poor-quality choices that are based on
majority opinions that have been formed with
little critical evaluation.
It should be kept in mind that privacy’s role in
the democratic process is neutral, in the sense
that it can allow both progressive and socially
harmful ideas to persuade or inuence majori-
ty opinion. Indeed, the process through which
majority opinion is changed could be applied
to partially explain the current trend of in-
creasing xenophobia and racism – for a time
considered unacceptable – in many European
countries.
I.C.ii.d: How does this apply to mass surveil-
lance?
ere is a growing body of research that ex-
amines whether the linked (perhaps identical)
phenomena of social control, the spiral of
silence and the chilling eect apply in the con-
text of mass surveillance. As will be discussed
below, surveys of public attitudes, experiments
and other research on internet use and mobile
phone use suggest that since the existence of
mass surveillance programmes was revealed
to the public, individuals see the internet and
other communications tools as a place where
they have no privacy. Many people feel that
they have lost control over whom they share
information with when they use emails, phone
calls, text messages and social media. Because
individuals now know that authorities can col-
lect or are collecting all the information that
passes over the internet, many people are be-
ginning to behave as if the online world is the
‘public’ or the ‘majority’. at is, individuals
are starting to censor themselves and refrain
from doing or saying things that might sug-
gest they are deviating from prevailing social
rules and political opinions. It should be not-
ed that the opinion surveys and experiments
concerning mass surveillance discussed below
are based on public perception of mass surveil-
lance. It seems irrelevant whether individuals
believe that their information is actually being
read or analysed. It is enough to make people
self-censor if they simply think that their data
is being collected. is suggests that even if
lawmakers create limits on when collected data
can be accessed by security services, this will
not prevent self-censorship. is is conrmed
by experimental research in the eld of social
psychology which shows that individuals are
likely to become reluctant to air their views on
controversial topics if there is a mere sugges-
tion of surveillance.86
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How is mass surveillance aecting the creation of
new ideas and information?
Mass surveillance is making it much more
dicult for new ideas and information to be
developed and shared. Unfortunately, it is
impossible to prove a negative – we cannot
produce data on the number of news stories
or innovative concepts that have failed to per-
suade the public of a new idea due to the social
control/spiral of silence/chilling eect created
by mass surveillance. However, there is plenty
of evidence that journalists and associations
are slowing down and sometimes stopping
their work because mass surveillance removes
the privacy that they rely on to do their job of
informing the public and stimulating debate
and change.
Opinion-shapers self-censoring
Surveys of non-ction writers and journalists have asked these groups about how they have changed
their behaviour since the Snowden revelations explaining the extent of mass surveillance. A survey of
around 500 journalists and non-ction writers in ‘free’ countries (which includes all EU countries)87
revealed that, because of mass surveillance: 20% have avoided writing or speaking on particular topics
and another 14% have seriously considered doing so; 20% have avoided certain topics in phone and
email conversations and 11% have seriously considered doing so; 31% have cut back or avoided social
media activities and 11% have seriously considered doing so.88 A survey by the same organisation
focussing on the USA found that because of mass surveillance, journalists and writers were self-cen-
soring on a wide range of issues – not only questions relating to national security, like military aairs.
Topics that journalists reported avoiding included: Middle East aairs, mass incarceration, drug
policy, pornography, the Occupy movement, the study of certain languages, historical issues like US
preparedness for a nuclear conict during the Cold War and criticism of the government.89
Another study based on interviews with
journalists, lawyers and (former) government
ocials working on the intelligence commu-
nity, national security and law enforcement in
the USA shows that revelations about mass
surveillance have made sources more reluctant
to come forward to journalists, which makes
it more dicult for the media to gather in-
formation and publish articles. Interviewees
explain that whistleblowers are now far more
reluctant to contact journalists about illegal
or unethical behaviour. is is because whis-
tleblowers fear that it is much harder for them
to remain anonymous, since mass surveillance
allows the authorities to search metadata to
nd out who has been in contact with journal-
ists.90 However, it is not merely whistleblowers
working in the area of national security and
law enforcement who have become reluctant
to expose illegal or unethical behaviour. Even
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organisations working on completely unrelat-
ed issues have been negatively aected. For
example, an organisation that promotes the
privacy of patients’ medical records, which re-
lies on anonymous informants to report when
corporations are breaking the law and illegally
sharing patient records, reported a signicant
fall in the number of whistleblowers coming
forward.91
A study of around 500 investigative journalists
in the USA reported that, because of mass sur-
veillance: almost 40% have changed the way
that they communicate with sources; almost
50% have changed the way that they store
and share potentially sensitive documents;
almost 30% have changed the way that they
communicate with other reporters, editors or
producers; and 13% had decided not to contact
a particular source.92 While there has not been
a similar survey for EU countries, associations
of journalists have argued that mass surveil-
lance makes it much more dicult for journal-
ists to do their job because individuals are less
willing to provide them with information due
to the risk of revealing their identity.93
Mass surveillance is also interfering with
the work of associations (particularly interest
groups), which are important for democracy
because they allow individuals to participate in
politics by organising themselves to promote
particular ideas, laws or policies. Associations
in the USA have reported that their members
have become reluctant to communicate with
each other, organise or participate in activities
because mass surveillance puts them at risk of
revealing their identities and opinions.94 ese
associations do not, for the most part, even
campaign on security-related issues. Rather,
their work is, at most, politically controversial,
covering topics such as environmental pro-
tection, gun control, drugs liberalisation and
equality. ese associations have gone so far
as to take legal action claiming that their right
to free speech has been violated because of the
chilling eect caused by mass surveillance.95
Mass surveillance is likely to interfere with
the work of opinion-shapers in two dierent
ways. As noted, opinion-shapers are likely to
belong to the ‘hard core’ identied by spiral
of silence scholarship who are suciently
convinced of their opinions that they will not
refrain from speaking out just because they are
in a minority. But to become this ‘hard core’
who are resistant to social control/spiral of
silence/the chilling eect, an opinion-shaper
must rst have been able to develop and re-
ne his/her ideas to the point where he/she is
condent and convinced of their correctness.
us, the rst way that mass surveillance may
inhibit opinion-shapers is during the phase of
idea development. Put otherwise, by removing
privacy, mass surveillance may prevent opin-
ion-shapers from being able to develop ideas
and information.
Once opinion-shapers have developed their
ideas enough to be so condent that they are
resistant to social control/the spiral of silence/
the chilling eect, mass surveillance interferes
in a dierent, more tangible way. At this stage,
mass surveillance inhibits opinion-shapers in-
directly because it makes them fear that they
will be exposed and/or monitored, and that, as
a consequence, some form of punishment will
then follow.
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Based on how others in a similar position have
been treated, opinion-shapers will be aware
that they run a real risk of sanctions. For ex-
ample: whistleblowers have been disciplined,
lost their jobs, prosecuted (and, in extreme
cases, murdered); journalists have been placed
on government watchlists and subjected to
searches; journalists have seen their sources
in third countries identied and harmed;
members of civil society organisations (such
as those campaigning on environmental pro-
tection, peace, anti-nuclear, civil liberties,
equality and anti-apartheid) have seen their
organisations and their personal lives inltrat-
ed and destroyed by informants.96
It is likely that other categories of opin-
ion-shaper are similarly deterred from devel-
oping and spreading their ideas. Academics,
activists and politicians are likely to be
aware of well-documented examples of their
colleagues being placed under surveillance
(usually illegally) and punished by the state for
their unpopular political views. For example,
academics in the USA and UK have been de-
nied jobs, promotions or funding for research;
activists (most famously, Martin Luther
King) have faced blackmail and exposure of
their personal lives to discredit or discourage
them.97 While there does not appear to have
been a documented case of elected politicians
being punished in this way for their ‘unortho-
dox’ views, British politicians from the Labour
Party and Green Party who have been target-
ed by surveillance have complained that this
makes them more cautious about expressing
their views.98
How is mass surveillance aecting the spread of
new ideas and information?
As discussed above, it is not only important
that opinion-shapers be able to develop and
rene new ideas and information before
making these public. It is also important that
members of the majority should be able to dis-
cuss, evaluate and decide on these new pieces
of information and ideas. Mass surveillance
is also interfering with this process because
individuals are becoming less comfortable
with communicating with each other over the
phone, through email, social media or using
the internet simply to inform themselves.
Recent surveys looking at how the public has
changed its behaviour now that people are
aware of mass surveillance suggests we are now
more likely to conform to social conventions
and majority opinions. Fifty-two per cent of
respondents to a survey in Germany said that
because of mass surveillance, they would prob-
ably refrain from using email or mobile phones
to address potentially taboo questions, for
example, to communicate with drugs coun-
sellors, psychotherapists or marriage counsel-
lors.99 Twenty ve per cent of respondents to
a survey in the USA who were aware of the
government’s mass surveillance programmes
said that they changed the way that they use
technology to communicate, for example, by
no longer discussing their private life online,
using search engines to look for information
on certain topics or making jokes that could
be taken out of context.10 0 is supports other
research ndings that report a drop of almost
30% in internet trac to Wikipedia articles
on almost 50 topics identied by US author-
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ities as issues that they track on social media,
following exposure of NSA surveillance pro-
grammes.101 A 2014 survey that included four
European countries showed that most people
in the UK (60%), Germany (65%), Spain (66%)
and France (76%) believe that the internet is
not a safe place to express their opinions – in
part because of government surveillance, and
in part because of monitoring by businesses.102
Two recent academic studies testing the spiral
of silence and chilling eect theories conrm
that individuals self-censor in their online
behaviour because of mass surveillance. One
study looked at the willingness of individu-
als to share their views on a story appearing
through their Facebook feed. e research
found that most individuals who perceived a
risk of online government surveillance were
less likely to share their views if they believed
that these views were controversial.103 Another
study looked at the willingness of individuals
to speak or write about certain topics online,
engage in online searches, or share content they
have created (presuming that these activities
were legally permissible). 62% of respondents
stated that they would be much less (22%) or
somewhat (40%) less likely to speak or write
about certain topics because of government
surveillance. 78% agreed strongly (38%) or
somewhat (40%) that government surveillance
would make them more careful about what
they discuss online. 78% agreed strongly (40%)
or somewhat (38%) that government surveil-
lance would make them more careful about
what they search for online. 60% said that
they would be much less (22%) or somewhat
less (38%) likely to share content that they had
created online because of government surveil-
lance.104 us, the academic research conrms
that just like opinion-shapers, members of the
general public censor themselves online and
refrain from expressing political views that
are not in conformity with dominant public
opinion or accepted rules.
is means that the space for debate and
discussion that privacy makes available is
disappearing – because most of what we do
involves using electronic devices, like phones
or computers, from which governments collect
information. Opinion-shapers are less likely
to propose new ideas that challenge existing
rules or collect new information that questions
whether leaders are following the rules. And
the public is less likely to be able to give these
ideas or sources of information due consider-
ation and make a free choice over which laws
and leaders they want.105 Mass surveillance
poses a serious threat to the quality of deci-
sion-making in society and the ability of soci-
ety to evolve and adapt to new circumstances.
I.C.ii.e: Rewriting the privacy argument
e dominant approach among campaigners
who have tried to explain the collective val-
ue of privacy has been to make the link with
democracy without breaking down the me-
chanics of how humans use privacy to think
and make decisions and without using existing
empirical evidence to show how this process
applies in practice. e absence of this kind of
explanation can make it dicult to convince
sceptical or undecided members of the public.
e above analysis hopes to give campaigners
new tools by drawing evidence from dierent
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academic disciplines to explain and clarify the
link between privacy and democracy.
To reshape the public’s understanding of
privacy, the concept must also be explained
more broadly than a right to individual se-
crecy, which has negative connotations and
commoditises privacy. is section explained
privacy as the freedom to think, form opinions
and make decisions without social pressure
or judgement. Privacy gives us freedom from
social control because it allows us to choose
whom we share information and opinions
with. is allows us to create a space where
we are free from external social pressure to
conform to the dominant rules and ideas of
our society. In this space, we can exchange
sensitive information about ourselves, but also
develop new concepts, form new opinions and
test and improve ideas before sharing them.
Opinion-shapers use this space to suggest new
social rules or evaluate how the rules are being
applied by our leaders. e general public uses
this space to evaluate, accept or reject the in-
formation they receive, which allows either for
the rules to be changed (social innovation) or
for our leaders to be reprimanded for breaking
those rules (democratic accountability). Mass
surveillance removes the possibility to create
these spaces because almost everything we do
has some online component, and individuals
treat the virtual world as a public sphere where
there is no privacy.
Mass surveillance undermines social innova-
tion and democratic accountability by foster-
ing conformity with existing rules. If opin-
ion-shapers are unable to propose new ideas
or gather and share new information for the
public to consume and judge, their societies
will no longer be able to make informed choic-
es about policies and laws, or when choosing
their leaders and holding them to account.
is has implications for democracy in gen-
eral: governments are more likely to choose
policies that sound attractive to the majority
population, but that have not been adequately
evaluated or rened; governments will feel
even less of an incentive to act for the good of
the population knowing that there are fewer
critical voices to hold them to account. In the
context of counter-terrorism, this makes it eas-
ier for governments to choose measures that
have popular appeal, but that are ineective or
counter-productive in practice, because there
is not enough freedom for opinion-shapers and
the public to question these choices or hold
leaders to account.106
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Part II: Ethnic profiling
e second counter-terrorism measure that this
paper will examine is ethnic proling. Author-
ities in many countries are using their powers,
such as the power to stop-and-search persons,
carry out border checks and raid properties,
against individuals because they are (perceived
to be) Muslim. In these situations, security
services are generally using their powers pre-
dictively – to nd potential terrorists who have
not yet been identied by objective evidence.
Because the security services do not know
who they are looking for, they try to make an
educated guess about potential suspects. So
the authorities construct a prole and target
individuals who t the prole’s criteria.
[Ethnic proling]
Ethnic proling refers to a situation where
security services are using their powers (usu-
ally predictively), using a prole that is based
on ethnicity. at is, the security services have
decided to exercise their powers in relation to
an individual because of that person’s ethnicity
rather than basing themselves on objective evi-
dence that proves the individual in question has
acted unlawfully.
To give a concrete example, law enforcement
agencies may be of the opinion that drug
dealers tend to be young black men dressed in
sports wear. As a result, without any objective
evidence, they routinely stop and search all
teenagers wearing hooded tops who appear
to be of African descent. Were it not for the
fact that these individuals did not belong to
this particular ethnicity, the security services
would not have used their powers to stop and
search them. If ethnicity plays a decisive role
in the use of police powers, this amounts to
unlawful discrimination.107
In practice, ethnic proling is ineective to
prevent or detect crime and is a waste of re-
sources.108 Research shows that when police
use ethnic proling, they target a higher pro-
portion of individuals from the ‘suspect’ eth-
nicity, and fewer individuals from the majority
population or other minorities. In situations
where law enforcement agencies have stopped
using ethnicity as a criterion and instead used
objective evidence of criminal activity, the re-
sults change signicantly.109 e overall num-
ber of searches or stops carried out by security
services falls, the number of oences detected
(i.e. the eectiveness of the stops) increases,
and the disproportionality with which minori-
ties are targeted compared to members of the
majority population falls signicantly.110 In-
stead of basing themselves on ethnicity, which
is not relevant to criminality, these security
services use behavioural proling. Behavioural
proles consist of patterns of behaviour that
have been identied as suspicious, such as
nervousness, avoiding eye contact, swapping
bags with another person, travelling without
luggage, purchasing one-way tickets with cash
and repeated meetings between individuals
within a short space of time.111 Put otherwise,
when using behavioural proling, law enforce-
ment ocers are basing their decisions to stop
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or search an individual on the fact that the
person is exhibiting suspicious behaviour –
which is objective evidence.112 Ethnic proling
is ineective because it causes security services
to focus their attention disproportionately on
innocent individuals who belong to the target-
ed ethnicity, while suspects from the majority
population escape scrutiny. It is inecient
because it results in fewer criminals being ap-
prehended.
Proling appears to be informing the use of
preventive counter-terrorism powers, such
as border control and police stop-and-search
powers, in a number of countries.113 As well
as being ineective to combat crime, available
evidence suggests that ethnic proling is also
useless as a counter-terrorism measure.
Large scale ethnic profiling in Germany
In Germany, after the 9/11 attacks, the authorities tried to identify potential terrorists by searching
through several databases containing over 8 million people, such as social security registries, univer-
sity records, the registry of foreign nationals and the records of phone companies.114 e authorities
highlighted people that matched the prole they had created of a potential terrorist: all Muslim males
between 18 and 40 who come from certain Islamic countries and are current or former students. Over
30,000 individuals in the databases matched the search criteria. eir identities were then cross-
checked against a database of two to three hundred thousand individuals certied to work in certain
sensitive professions, such as pilots, airport workers or those dealing with nuclear energy or hazardous
waste. e exercise failed to uncover any terrorist suspects and led to no charges being brought in
relation to terrorist oences.
Similarly, in the USA in September 2002, the
government implemented a ‘special registra-
tion’ programme targeting people ‘deemed to
be a risk to national security. Individuals t-
ting the following prole were required to reg-
ister with US immigration authorities and be
ngerprinted, photographed, interviewed and
submit to routine reporting: males of 16 and
over from a list of over 20 countries with large
Muslim populations. Almost 83,000 people
living in the USA had registered by June 2003,
after which much of the programme was
phased out. It is thought that up to 5,000 in-
dividuals were temporarily detained under the
programme and over 13,000 people deported
for visa violations, but no one was charged
with terrorism or terrorist aliations.115
As of December 2016, French security services
had carried out almost 4,300 police raids on
homes and mosques and placed over 600 peo-
ple under house arrest. However, this resulted
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in no prosecutions for terrorism charges.116
While there have been prosecutions, it seems
that a large proportion of these are for ‘apolo-
gising for/praising terrorism’, which would be
legally protected as free speech in some juris-
dictions.117 Because of the low level of success,
the fact that emergency legislation does not
require police to provide objective evidence
of suspicion as a condition for obtaining a
warrant, and the fact that all those subject to
raids were Muslims or people of Muslim ap-
pearance, the authorities have been criticised
for basing their decisions on imsy evidence
(such as anonymous tip-os from neighbours)
and ethnicity.118
Proling based on ethnicity is ineective as
a counter-terrorism tool because individuals
involved with violent extremism related to
Al-Qaeda and ‘Islamic State’ belong to a wide
variety of nationalities and ethnicities – in-
cluding increasing numbers of (white) Western
converts.119 Research suggests that Western
converts are actually far more likely to resort
to violent extremism than those brought up
Muslim.120 Ethnic proling can actually create
a blind spot for security services because they
focus their resources on individuals belonging
to the suspect ethnicity. Once recruiters and
attackers become aware that the authorities
are singling out certain ethnic minorities, they
adapt their behaviour to avoid detection – for
example, by choosing attackers from a dier-
ent ethnicity.121
As well as wasting police resources and divert-
ing attention away from potential perpetrators,
ethnic proling is likely to be counter-produc-
tive in the long run. It is well documented that
innocent individuals who are subject to the
use of police powers to stop-and-search or raid
their property, feel humiliated and resentful
when they believe that their ethnicity is the
main reason they have been singled out. Indi-
viduals also report that they come to distrust
the police and feel alienated and marginalised
from their community and the nation. A fur-
ther consequence appears to be an increase
in discrimination and hate crime from the
general public (which is often under-reported
because of a lack of trust in police) that ac-
ademics suggest results in part because racial
proling appears to legitimise discrimination
by private individuals. is reects the expe-
rience of members of Muslim communities
targeted by security services in the USA, UK,
and more recently Belgium and France. e
destruction of trust in the authorities makes
individuals less likely to cooperate with securi-
ty services, for example by reporting suspicious
behaviour or coming forward as a witness. e
increased marginalisation and perception that
the police cannot be relied on to protect their
communities against discrimination and hate
crime further compounds feelings of injustice
and alienation from the nation, which plays a
role in radicalisation, discussed below.122
As noted, obliging the security services to base
their decisions on objective evidence, such as
suspicious behaviour, can signicantly reduce
the number of innocent people targeted by
intrusive law enforcement measures. In addi-
tion, this means that law enforcement ocers
will always be in a position to give a reason-
able explanation to individuals as to why they
have been subject to police powers. Research
shows that when security services explain to
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individuals why they have been targeted, in-
form them of how to make a complaint and
treat them in a respectful manner, then they
are much less likely to have negative feelings
about their encounter with police.123
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Part III: What solutions should civil society
organisations promote?
is nal section will outline measures that
have proven eective in combating terrorism
and which also either promote human rights
standards, or can be calibrated to interfere
with rights in a proportionate manner.
III.A: Invest in methods of intelligence-
gathering that make us safer
Rather than wasting public money on equip-
ment and analysts for mass surveillance,
governments should invest in methods of col-
lecting intelligence that have proven eective.
First, governments should increase the capac-
ity of security services to carry out targeted
surveillance of individuals whom they have
reason to suspect of involvement with terror-
ism. As discussed above, in most cases security
services have already been aware of individuals
who have gone on to commit terrorist attacks.
In these cases, resource constraints or poor
communications within or between security
services have prevented the authorities from
stopping attacks. Put otherwise, the security
services are doing their jobs, but they require
more resources – including more sta – and
improvements in how they share information.
If governments also introduce measures to cut
o the ow of people who are radicalised into
violent extremism (discussed below), the num-
ber of individuals that the security services
have to place under targeted surveillance will
also drop in the long term.124 Although tar-
geted surveillance constitutes an interference
with individual privacy, it can be justied in
the interests of preventing crime and protect-
ing public safety as long as safeguards exist to
prevent abuse of these powers.125
Second, police use of stop-and-search powers,
border checks or raids on homes and other
properties should also be based on objective
evidence rather than on the basis of ethnic pro-
ling. In the context of stop-and-search pow-
ers, security services could copy successful use
in the USA, Spain and the UK of behavioural
proling, including the introduction of ‘stop’
forms, training, monitoring the use of pre-
ventive powers for patterns of discrimination,
and ensuring that the ethnic diversity of the
national population is reected in the diversity
of security service personnel.126 is would not
only improve the eciency and eectiveness
of the security services – and thereby improve
public safety – it would also remove a current
source of mistrust and resentment towards the
authorities (and one that contributes towards
discrimination and hate crime which further
alienates Muslims). In relation to the use of
raids, security services should be required to
prove the necessity of these measures to an au-
thorising judge. is would help to reduce the
number of innocent civilians targeted by these
measures, which, again, constitutes a source of
mistrust and resentment towards the security
services and the state, a factor that increases
vulnerability to radicalisation. In addition,
when the security services use these powers,
they should try to minimise the damage,
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trauma and humiliation involved by explain-
ing their actions, using proportionate force
and being as respectful as the circumstances
permit. ese measures will ensure that in the
long run, the number of innocent targets is
minimised, and that when an innocent person
is targeted, their trust in and respect for the
police is not damaged – which will help to
facilitate cooperation with security services in
the future, including for the purpose of gath-
ering intelligence.
ird, governments should invest in the single
most important source of information for secu-
rity services: the general public, who routinely
report suspicious activities to the police.127 e
failure of French and Belgian security services
to predict and prevent attacks in 2015 and
2016 has been in part blamed on their failure
to build relations with local communities, on
whom police forces normally rely for informa-
tion.128 Conversely, police forces in a number of
countries, particularly the USA and UK, have
implemented models of ‘community-oriented
or ‘community-based’ policing.129 Although
originally used to address high levels of crime
among particular communities, it has now
been adapted for use as a counter-terrorism
measure in communities with high concentra-
tions of Muslims. Research suggests that, if
used as a trust-building measure, it can be an
eective means of gathering intelligence and
preventing marginalisation.130
e research broadly identies two models of
community-based policing. Some countries
adopt a mix of these.131 e community-tar-
geted model is a top-down approach according
to which security services try to recruit infor-
mants (sometimes against their will) from
among the community, creating a network of
local ‘spies’ who feed information to the police.
Although this can generate intelligence for
the security services, it also creates mistrust
of the authorities and risks marginalising the
community, which actually leads to less coop-
eration and information owing between the
community and the police in the long run.
Rather, the model preferred by researchers
and advocated here is based on a mutually
benecial partnership between the police and
the community. e community helps to de-
termine what priorities police should address
locally, becomes involved in policing (e.g.
through neighbourhood watch programmes)
and maintains a regular dialogue with local
police. At a less formal level, police ocers are
expected to be present physically in the com-
munities and become involved in community
life. is should facilitate the emergence of
genuine personal relationships and friendships
and result in greater attention being paid to
communities’ day-to-day concerns, like petty
crime or anti-social behaviour. Research sug-
gests that this method of policing builds trust
and then information ows voluntarily and
organically from the community.132 In essence,
this is simply sensible policing, which should
be applied universally and not just focused on
particular communities as a counter-terrorism
tool. If this tool is only applied to Muslim
communities (as has been the case in the USA
and the UK), this can lead to mistrust and
suspicion, which can undermine its eective-
ness.133
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III.B: Self-help measures to protect privacy
If governments cannot be persuaded to refrain
from carrying out mass surveillance, a partial
answer may lie in the use of encryption.
[Encry ption]
Encryption describes the process by which infor-
mation, such as an email or credit card payment
details, is made unrecognisable or scrambled
when it passes over the internet.134 Once the
information reaches the intended recipient, for
example a bank, or a friends email address or
phone, it is decrypted or decoded. is allows the
recipient to read its contents. e information is
decoded using an electronic key. is key can be
held by the communications service provider, or
it can be held on the devices of the individuals
concerned – such as a telephone or computer.
e most secure form of encryption is ‘end-to-
end encryption’. With end-to-end encryption,
the electronic keys that can decode emails or oth-
er information are stored only on the recipient’s
phone or computer. is means that only the re-
cipient’s device can read this information. at
is, the communications service providers – and
the governments that obtain information from
them – cannot decode this information.
It has emerged recently that some communi-
cations service providers have cooperated with
government mass surveillance programmes by
providing customer data.135 Several of these
businesses have introduced encryption into
their services to regain public trust.136 In reac-
tion to this, some governments are considering
making end-to-end encryption impossible by
obliging communications service providers to
give the authorities encryption keys (known
as a ‘backdoor’) so that they can decode in-
formation that these devices hold.137 is is
because security services argue that terrorists
can prevent them from monitoring their com-
munications and plan their attacks in secret by
using encryption.
ere are three problems with this argument.
First, it is far from clear that encryption is a
key tool through which terrorists avoid detec-
tion. For example, despite original speculation
to the contrary,138 during the Paris attacks,
the perpetrators used non-encrypted mobile
phones to communicate with each other.139
Second, even if communications service pro-
viders give backdoors to the security services,
terrorists and criminals can still create their
own encryption software or use software cre-
ated in a country that has not made encryption
illegal, for which the security services would
not have backdoors. Furthermore, terrorists
can (and still do) use older ways of commu-
nicating like couriers or code words in unpro-
tected communications like text messages.140
ird, communications service providers
and experts in the eld agree that building
backdoors for security services is dangerous
because it is likely that terrorists and criminals
would be able to steal the encryption keys and
use the same backdoors. is would mean that
internet services that rely on encryption, such
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as banking or payment systems or health in-
surance records, are no longer safe.141
It should also be noted that encryption does
not disarm security services. e authorities
can still use targeted surveillance (like bug-
ging), or hack directly into the computer or
phone of the target to read their communi-
cations once they have been decrypted or to
obtain the encryption key.142
Although encryption can help protect privacy
by hiding the content of communications, it
does not tend to hide metadata.143 By itself,
therefore, encryption is not enough to counter
mass surveillance. Ultimately, this means that
the public will have to take steps to protect
themselves from security services by using
encryption software to conceal the contents of
their communications, and other tools to an-
onymise their use of the internet and protect
their metadata. It seems that most individuals,
however, do not know about the existence of
privacy tools or how to use them.144 To that
end, the population should be educated about
and encouraged to use privacy tools. NGOs
have been carrying out these activities.145
However, NGOs should continue their eorts
to press companies in the communications eld
to embed easy-to-use privacy tools into their
software and equipment. is would reduce
the amount of information these companies
collect in the rst place, and hence how much
information the security services are able to
obtain.146 It will be dicult to better protect
privacy until the general public becomes more
aware of privacy tools and these tools are made
much easier to use.
III.C: Reduce vulnerability to radicalisation
As noted, in an eort to identify terrorists
before they are known to security services,
the authorities try to predict, by constructing
terrorist proles, whom to target and inves-
tigate. However, research (even by security
services)147 repeatedly conrms that it is not
possible to draw up a prole of the ‘aver-
age’ terrorist. Among the violent extremists
studied by various researchers, there is little
consistency in levels of education, degree of
religiosity, nationality, family situation, social
background or past criminality. Increasingly,
those involved in violent extremism include
women, (white) converts and those in their
teenage years (including children).148
[Radicalisation]
e term ‘radicalisation’ may be problematic in
itself because it lacks precise meaning and has
been used to describe potentially conicting ex-
planations of why individuals turn to violence
in pursuit of ideological goals. Broadly speak-
ing, the phrase describes the process through
which an individual embraces an ideology that
justies violence. e most commonly used un-
derstanding of ‘radicalisation’ refers to the nal
stages of indoctrination and emphasizes the role
of the given ideology, such as a radical, inaccu-
rate interpretation of Islam. A broader notion of
the concept puts greater emphasis on contextual
factors, such as social inequality, and sees ide-
ology (religious, political or other) merely as a
tool that helps to justify a break with generally
accepted morality. is paper uses the broader
notion of the term.149
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Authorities have also tried to identify the
process through which individuals become
radicalised into violent extremism that leads
to terrorism.150 Again, research shows that it
is not possible to create a model that will allow
the authorities to predict which individuals
will radicalise, nor which, among those who
are radicalised, will move from being non-vi-
olent radicals to violent radicals that engage
in terrorism. However, it has been possible
to identify the factors that make individuals
vulnerable to radicalisation, as well as the dif-
ferent stages of the radicalisation process. Put
otherwise, it is impossible to predict who will
become radicalised into violent extremism, but
we do know what factors increase the likeli-
hood of it happening.151 e present section
concentrates on the phenomenon of ‘home
grown’ radicalisation among people already
settled in Europe and draws predominantly
on two studies that review existing research
on the issue.152
The stages of radicalisation
e research shows that certain factors make individuals more vulnerable to radicalisation. To sum
up: rst, a sense of anger over an injustice which prompts an individual to question the existing
order; second, a crisis of identity or purpose; third, the rst two factors combine to create a ‘cognitive
opening’ making the individual receptive to a new radicalising narrative; fourth, joining a network
or group where individuals undergo mutual radicalisation usually under the supervision of a mentor
or recruiter. e following paragraphs will explain these factors and how they t together in greater
detail.
Researchers have found that those who turn
to violent extremism have experienced intense
feelings of frustration and anger over an unjust
or unfair situation, which causes individuals to
question and want to change the existing so-
cial and political order. is can be rooted in a
personal experience, for example: experiencing
discrimination or hate crime; having one’s so-
cial mobility blocked by being unable to get a
job, or get a job commensurate to one’s skills or
qualications. Anger and frustration can also
be rooted in an individuals perception of un-
fairness towards others in the same group, for
example: a perception that Muslims in Europe
are living in relative deprivation (high rates
of unemployment, petty crime, segregation,
low levels of educational achievement, poor
access to services) compared to the majority
population.153 A recurrent and powerful driver
of resentment stems from the foreign policy
of Western countries, which is perceived to
be, rst, directly attacking Muslims through
military campaigns, especially in the Middle
East, and second, collaborating with repressive
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governments. e poor treatment of refugees
and migrants in many European countries
is also regarded as another source of anger
and frustration on which recruiters can cap-
italise.154 It appears that most frequently, the
perceived foreign and domestic victimisation
of Muslims combine to exert a strong sense of
outrage. is can also combine with a crisis
of identity and belonging (religious, national
or inter-generational) or purpose (due to lack
of education or employment) that is reported
sometimes among Muslim youth.
It is inaccurate to say unemployment, dis-
crimination, or foreign policies that violate
or support violations of human rights cause
individuals to become terrorists in a simple
causal process. While many Muslims perceive
these injustices, only a tiny fraction become
radicalised and an even smaller number turn
to violence. Rather, what these factors do is to
make it more likely for people to question the
current social, economic and political order.
ese factors can also make it more likely for
identity crises to emerge, especially among
youth, who do not wish to identify with their
parents, but who are also less likely to identify
with a country that seems to have turned its
back on them and is attacking Muslims world-
wide.
e research suggests that the above factors
combine to create some individuals who are
angry and without a strong sense of identity,
and that this leads to a ‘cognitive opening’
that is exploited by recruiters. A recruiter or
mentor is able to explain the current social
and political order as one where Muslims are
violently repressed, subjugated and humiliated
by Western powers in the Middle East, and
then abandoned to socio-economic stagnation,
discrimination, violence, suspicion and police
harassment at home. Using a ready-made,
well-structured meta-narrative based on selec-
tive and twisted interpretations of holy texts,
mentors or recruiters then explain these injus-
tices in absolutist terms, as a conict between
Islam and a morally bankrupt Judeo-Christian
West. Radicalisation gives individuals a pur-
pose (to ght for Islam), an identity (a jihadi)
and a new family (fellow ghters).
Research also tends to agree that the stage at
which individuals embrace extremism and lat-
er (perhaps) violence usually occurs in groups
and networks. ese could be groups based on
friendship, family or without pre-existing ties,
and they could be physical or virtual. As the
group isolates itself from the rest of society,
the group’s moral and ethical boundaries shift
and members mutually radicalise each other,
often under the supervision of a recruiter or
mentor. ere are various explanations of
how members of the group jump from being
non-violent to violent extremists, including
a personal catalyst event, such as a personal
experience of hate crime.
Experts agree that it is impossible to nd
a direct causal link between any one of the
factors mentioned and radicalisation into vio-
lent extremism. Research – not only of jihadi
Salast terrorism but also terrorist groups in
Italy, Germany, Northern Ireland and right-
wing skinhead youth – suggests that the ide-
ology itself is the least important of the all the
factors discussed that may lead an individual
to embrace violent extremism.155 Furthermore,
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dierent factors have dierent impacts, de-
pending on an individuals circumstances. For
example, some violent extremists are well ed-
ucated, and these individuals often nd their
way into leadership positions or in operational
roles in terrorist organisations where skill and
intelligence is required to carry out complicated
missions. University education may have been
a factor in their radicalisation, either because
this was the forum where individuals formed
networks, or because it became a source of an-
ger and frustration when individuals were not
able to have the job or standard of living that
an education should have opened to them,156
or (some suggest) because of an individuals
choice of degree.157 Similarly, relative depriva-
tion, neighbourhoods with high crime rates or
poor services and communal facilities and high
unemployment rates can become a factor in
radicalisation because they support the narra-
tive that Muslims are victims of discrimination
and that the state has abandoned them. is
can be a source of frustration and anger. But
researchers also point out that these conditions
create an environment where young people are
bored, isolated and without a sense of purpose,
which increases the appeal of extremist mate-
rial on the internet in which recruiters promise
status and adventure. Muslims in full-time
employment or full-time education also seem
more likely to have a stronger sense of national
identity than Muslims who are not.158 Finally,
to the extent that socio-economic inequality
contributes to criminal oending,159 it in-
creases the likelihood that individuals will
spend time in prison, which is an increasingly
important venue for radicalisation and the cre-
ation of jihadi networks.160
Governments have taken some steps to inter-
rupt or reverse the end stages of the process of
radicalisation, such as trying to stop the spread
of indoctrinating material over the internet,
challenging radical jihadi ideology, appre-
hending recruiters or implementing deradi-
calisation programmes.161 But these measures
target the very last stages of radicalisation into
violent extremism. ey are aimed at disrupt-
ing the ability of the radicalising narrative
to exploit a ‘cognitive opening’. And this
cognitive opening was created by perceived
injustices, frustration and lack of identity and
purpose. ese measures also target the least
important of all the elements that may drive
an individual towards violent extremism: the
ideology.162 ere are two problems with this
approach. First, to spot individuals who may
be radicalising, the authorities need to apply
intense scrutiny to Muslim communities. is
in turn exacerbates feelings of mistrust and
marginalisation that help make individuals
vulnerable to radicalisation. e UKs ‘Pre-
vent’ strategy has been repeatedly criticised
on these grounds.163 Second, governments are
concentrating their eorts countering a specif-
ic extremist ideology rather than taking steps
that could help to counter terrorism from all
sources, including extreme left and right wing
and separatist.164
In contrast, governments are doing very little
to address the prior broader problems that
create resentment, marginalisation and alien-
ation in the rst place. If governments were to
implement their human rights obligations to
promote racial equality, punish discrimination
and hate crime, improve access to education
and (non segregated) housing and take proper
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account of their human rights obligations in
foreign policy,165 this would reduce the likeli-
hood that individuals would be vulnerable to
radicalisation to begin with.166 is is not to
say that radicalisation would stop – there will
always be individuals who can be persuaded to
pursue violence. But by implementing human
rights standards, governments will reduce the
ow of new recruits, leaving the security ser-
vices with a more manageable task.
45
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Conclusions
ere is no inherent conict between security
and human rights. Governments have chosen
to implement counter-terrorism measures that
violate human rights standards because these
oer voters the illusion of safety and the re-
assurance of strong, decisive leadership. But
mass surveillance and ethnic proling are
making European countries more vulnerable
to attack by misdirecting the resources of
security services and undermining intelli-
gence-gathering. Mass surveillance is also
undermining democratic accountability and
social innovation, which makes it more dif-
cult for opinion-shapers and the public to
inuence and question the laws and policies
the authorities choose to put in place. Lon-
ger-term failings to give human rights ade-
quate importance as a goal of foreign policy
and to promote racial equality and economic
and social inclusion for minorities at home
have helped create an environment conducive
to radicalisation into violent extremism. Se-
curity services have failed to prevent attacks
because they have not had enough resources or
ecient methods of working that would allow
them to carry out targeted surveillance and act
on concrete intelligence. For our governments
to make us safer, they must therefore properly
resource law enforcement agencies to carry out
targeted surveillance (with appropriate judicial
and parliamentary oversight), invest in com-
munity-oriented policing and abandon ethnic
proling in favour of behavioural proling.
Combining these measures with policies to
promote equality and inclusion for minori-
ties, an ethical foreign policy, and existing
measures to disrupt and reverse radicalisation
would deliver long-term sustainable security.
is is not to say that the resolution to the
purported tension between human rights and
security is to co-opt human rights tools into
counter-terrorism strategies. e argument
made by the paper was not that human rights
are valuable just because they are useful to
combat terrorism. Rather, the paper has ar-
gued that if governments were to implement
their human rights obligations, this would
minimise the occurrence of threats to security
and allow threats that do emerge to be dealt
with more eectively. Put otherwise, human
rights keep us safe.
46
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Notes
1 Israel Butler PhD (Nottingham), LLM (Nottingham),
BA (Cantab). Israel Butler is Head of Advocacy at the
Civil Liberties Union for Europe.
2 Lazarus, L. & Goold, B., ‘Security and human rights:
e search of a language of reconciliation’, in Goold,
B. & Lazarus, L. (eds.), ‘Security and Human Rights’,
2007, 1.
3 Rainie, L. & Maniam, S., ‘Americans feel the tensions
between privacy and security concerns’, Pew Research
Centre, 19 February 2016. For a summary of public
opinion surveys in the UK post-Snowden revelations
see: Cable, J., ‘UK public opinion review: Working
paper - An overview of public opinion polls since the
Edward Snowden revelations in June 2013’, 18 June
2015. For results of a survey concerning public attitudes
across several countries, including six EU countries, see:
YouGov/Amnesty International, 18 March 2015.
4 Haunss, S., ‘Privacy activism after Snowden: Advocacy
networks or protest?’, in Fitz, K. & Harju, B. (eds.),
‘Cultures of privacy – Paradigms, transformations, con-
testations’, 2015, 227.
5 Consistency of message, as well as presentation of a
credible alternative to the prevailing norm, plays an
important role in determining whether minorities are
successful in persuading majorities to alter their view-
points. See overview of social psychology research by
Maass, A. & Clark, R., ‘Hidden impact of minorities:
Fifteen years of minority inuence research’, 95 Psycho-
logical Bulletin (1984) 428.
6 Emerson, B., ‘Report of the Special Rapporteur on the
promotion and protection of human rights and funda-
mental freedoms while countering terrorism’, UN Doc.
A/HRC/31/65, 22 February 2016, 19-20; Coolsaet, R.
‘“All radicalization is local”, e genesis and drawbacks
of an elusive concept’, June 2016, Egmont – e Royal
Institute for International Relations, 41-42.
7 Greer, S., ‘e exceptions to articles 8 to 11 of the Eu-
ropean Convention on Human Rights’, 1997.
8 For example, even if evidence showed that racial pro-
ling was eective, because it undermines the core
of the right to racial equality it would not be legally
permissible. See: ECtHR, Application. No. 55762/00,
Timishev v Russia, 13 December 2005, para. 58: ‘the
Court considers that no dierence in treatment which
is based exclusively or to a decisive extent on a person’s
ethnic origin is capable of being objectively justied in a
contemporary democratic society built on the principles
of pluralism and respect for dierent cultures’.
9 e paper does not deal with the use of personal data
collected by businesses or the authorities that is then
mined for proling purposes to make commercial de-
cisions or social and economic policy. For example, use
of data for a purpose other than that for which it was
collected, such as medical records being made available
to insurance companies (for an alarming step in this
direction in the UK see: New Scientist, ‘Revealed:
Google AI has access to huge haul of NHS patient
data, 29 April 2016), or the aggregation of data from
dierent sources that can result in erroneous and social-
ly damaging outcomes for individuals or communities
(like acting on tenuous correlations between certain
characteristics and creditworthiness). ese are genuine
concerns, and they will be dealt with insofar as they are
relevant to the use of terrorist proles by security ser-
vices. ese problems relate more to the misuse of data
that individuals have given over and the irresponsible
use of proling, rather than governments collecting all
communications data through mass surveillance. For
further reading on these issues see: Executive oce of
the president, ‘Big data: Seizing opportunities, preserv-
ing values’, May 2014; e Verge, ‘e minority report:
Chicago’s new police computer predicts crimes, but is
it racist?, 19 February 2014; Calders, T. & Žliobaite,
I., ‘Why unbiased computational processes can lead to
discriminative decision procedures’, in Custers, B. et al.,
‘Discrimination and privacy in the information society’,
2013, chapter 3; Solove, D., ‘“Ive got nothing to hide”
and other misunderstandings of privacy, 44 San Diego
Law Review (2007), 745; Lyon, D. (ed.), ‘Surveillance
as social sorting’, 2003; Gandy, O., ‘e panoptic sort:
A political economy of personal information’, 1993.
10 e Guardian, ‘Fifteen secret warrants in force granting
bulk data collection in UK’, 7 July 2016; European Par-
liament Resolution, UN NSA surveillance programme,
sur veillance bod ies in various Member States and impact
on EU citizens’ fundamental rights, 12 March 2014,
P7_TA(2014)0230; Council of Europe, Committee on
Legal Aairs and Human Rights, of the Parliamentary
Assembly of the Council of Europe, Report on mass
surveillance, 18 March 2015, Doc. 13734; Emmerson,
B., ‘Report of the Special Rapporteur on the promotion
47
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Human Rights
and protection of human rights and fundamental free-
doms while countering terrorism’, UN Doc. A/69/397,
23 September 2014; e Telegraph, ‘Germany, France
and Spain “were spying on citizens”’, 1 November 2013.
11 In cases of extreme urgency, it is possible for review to
take place after surveillance begins: ECtHR, Applica-
tion No. 37138/14, Szabo & Vissy v Hungary, 12 January
2016.
12 FRA, ‘Surveillance by intelligence services: fundamen-
tal rights safeguards and remedies in the EU, Mapping
Member States’ legal frameworks’, 2015, 17-18.
13 e Guardian, ‘e Guardian guide to your metadata’,
12 June 2013.
14 Schneier, B., ‘e NSA doesn’t need to spy on your calls
to learn your secrets’, Wired.com, 25 March 2015.
15 Mayer, J., & Mutchler. P., ‘MetaPhone: e sensitivity
of telephone metadata’, Web Policy, 12 March 2014.
16 Lyon, D., ‘Surveillance after Snowden’, 2015, chapter 3;
e Guardian, ‘What can you learn about me from 24
hours of my metadata?’, 3 December 2013; Zeit Online,
‘Betrayed by our own data’, 10 March 2011.
17 ‘Communications service providers’ refers to companies
that provide: internet services like Belgacom or UPC;
mobile phone services like Orange or T-Mobile; phones
and computers like Apple or Samsung; social media
websites like Facebook or Twitter; email services like
Microsoft or Google; or web browsers like Firefox,
Safari, Chrome, or Internet Explorer.
18 Directive 2006/24 on the retention of data generated or
processed in connection with the provision of publicly
available electronic communications services or of pub-
lic communications networks and amending Directive
2002/58, OJ L 105, 13 April 2006, 54.
19 CJEU, Joined cases C-293/12 and C-594/12 Digital
Rights Ireland, 8 April 2014.
20 CJEU, Joined cases C-203/15 and C-698/15 Tele2
Sverige AB, 21 December 2016.
21 Eurojust, ‘Analysis of EU Member States’ legal frame-
work and current challenges on data retention’, 26 Oc-
tober 2015, EU Council Doc. 13085/15.
22 Korteweg, D., ‘Dutch House of Representatives passes
dragnet surveillance bill’, 16 February 2017, Bits of
Freedom; Lubin, A., ‘A new era of mass surveillance is
emerging across Europe’, 9 January 2017, Just Security;
e Guardian, “Snooper’s charter” bill becomes law,
extending UK state surveillance’, 29 November 2016;
EUObserver, ‘Belgium “insulted” by bad press on ter-
rorism’, 25 April 2016; Czuchaj, D., ‘e new Polish
Surveillance Act – back door for law enforcement,
Lexology, 4 March 2016; ECtHR, Application No.
37138/14, Szabo & Vissy v Hungary, 12 January 2016;
Krahulcova, L, ‘We will, we will, watch you: codifying
mass surveillance in France’, Access, Now, 28 October
2015; BBC News, ‘UK surveillance powers explained,
5 November 2015; Reuters, ‘Dutch intelligence-gath-
ering reform bill sparks privacy concerns, 1 September
2015; mano teises, ‘Mindaugas Kiškis: Lietuvos kiber-
netinis saugumas turi būti užtikrintas proporcingomis
priemonėmis, 12 March 2015.
23 Gallagher, R., ‘Facing data deluge, secret UK spying
report warned of intelligence failure, 7 June 2016, and
documents published with this article: ‘Digint im-
balance’, 7 June 2016; Digint narrative’, 7 June 2016;
‘Preston study’, 7 June 2016.
24 Corrigan, R., ‘Mass surveillance not eective for nd-
ing terrorists’, 15 January 2015, e New Scientist;
van Gulijk, C. et al., ‘SURVEILLE Paper assessing
surveillance in the context of preventing a terrorist act,
2014, 13-16; Goldacre, B., ‘Datamining for terrorists
would be lovely if it worked’, 28 February 2009, Bad
Science; Savage, S & Wainer, H., ‘Until proven guilty:
False positives and the war on terror’, 21.1 Chance
(2008), 59; Rudmin, F., ‘Why does the NSA engage in
mass surveillance of Americans when it’s statistically
impossible for such spying to detect terrorists?’, 24 May
2006; Schneier, B., ‘Why data mining won’t stop terror’,
9 March 2005, Schneier on Security.
25 Based on gures for the UK: e Times, ‘3000 terror
suspects plotting to attack UK’, 18 September 2015;
BBC News, ‘UK population “to top 70 million in 12
years”’, 29 October 2015.
26 New York Times, ‘Spy agency data after Sept. 11 led
FBI to dead ends, 17 January 2006.
27 Solove, D., ‘“I’ve got nothing to hide” and other mis-
understandings of privacy’, 44 San Diego Law Review
(2007), 745.
48
Security
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Human Rights
28 Balick, A., ‘Internet privacy is about more than security:
it’s about psychology too’, 27 July 2015; Pedersen, D.,
‘Psychological functions of privacy, 17 Journal of Envi-
ronmental Psychology (1997) 147; Pedersen, D., ‘Model
for types of privacy by privacy functions’, 19 Journal
of Environmental Psychology (1999) 397; Rachels, J.,
‘Why privacy is important’, 4 Philosophy and Public
Aairs (1975), 323.
29 Rainie, L., Kiesler, S., et al. ‘Anonymity, privacy and
security online’, Pew Research Centre, 5 September
2013;
30 For example, Abdo, A., ‘You may have “nothing to hide”
but you still have something to fear’, ACLU, 2 August
2013.
31 Nucci, L., ‘Culture, context, and the psychological
sources of human rights concepts’, in Edelstein, W. &
Nunner-Winkler, G. (eds.), ‘Morality in context, 2005,
chapter 17; Jourard, S., ‘Some psychological aspects of
privacy’, 31 Law and Contemporary Problems (1966),
307.
32 For example, Aiello, J. & Kolb, K., ‘Electronic perfor-
mance monitoring and social context: Impact on pro-
ductivity and stress, 80 Journal of Applied Psychology
(1995), 339.
33 New York Times, ‘Racy photos were often shared at
NSA, Snowden says’, 20 July 2014; Washington Post,
‘LOVEINT: When NSA ocers use their spying pow-
er on love interests’, 24 August 2013.
34 In this sense some have argued that privacy’s main
purpose is to conceal discreditable secrets: Posner, R.,
‘Privacy is overrated’, Daily News, 28 April 2013; Pos-
ner, R., ‘e right of privacy’, 12 Georgia Law Review
(1977), 393.
35 Wasserstrom, R., ‘Privacy: some arguments and as-
sumptions’, in Schoeman, F., ‘Philosophical dimensions
of privacy: An anthology’, 1984, chapter 14.
36 Research on public opinion in the USA shows that over
the last ten years, support for surveillance has almost
always been greater than opposition to surveillance.
Support for surveillance does uctuate: it rises when
attacks occur and then drops o in the long run. How-
ever, the only time that public opposition to surveillance
overtook public support for surveillance in the USA was
just after the Snowden revelations in 2013. Rainie, L.
& Maniam, S., ‘Americans feel the tensions between
privacy and security concerns’, Pew Research Centre, 19
Febr uar y 2016. For a summary of public opinion surveys
in the UK post-Snowden revelations see: Cable, J., ‘UK
public opinion review: Working paper - An overview
of public opinion polls since the Edward Snowden
revelations in June 2013’, 18 June 2015. For analysis of
how public opinion towards counter-terrorism policies
in Spain has varied in response to attacks see: El Pais,
‘El 71% de los votantes del PSOE apoya el pacto antiter-
rorista’, 19 February 2015.
37 For an instructive interview by Rights International
Spain with Martin Scheinin, former UN Special Rep-
resentative on counter-terrorism and human rights,
covering several of the issues discussed below, see: En-
trevista a Martin Scheinin, antiguo Relator Especial de
la ONU sobre derechos humanos en la lucha contra el
terrorismo, 29 June 2015.
38 Kirchner, L., ‘What’s the evidence mass surveillance
works? Not much, 18 November 2015, Pro Publica;
Privacy and Civil Liberties Oversight Board, Report on
the telephone records program conducted under section
215 of the USA Patriot Act and on the operations of
the Foreign Intelligence Surveillance Court, 23 January
2014; Bergen, P., et al., ‘Do NSA’s bulk surveillance
programs stop terrorists?’, January 2014, New America
Foundation.
39 R eaders may be aware of a r ecent independent asses sment
of the usefulness of ‘bulk interception’ in countering
terrorism in the UK. e report found that ‘bulk inter-
ception’ had been ‘vital’ for ‘counter-terrorism in the UK
and abroad, cyber-defence, child sexual exploitation,
organised crime and the support of military operations’.
However, the report only examined ‘bulk interception’
directed at foreign-focused intelligence gathering. us,
the report did not ask whether the retention of phone
and email records and internet connection records by
communications service providers could be consid-
ered useful, thus excluding a large amount of what is
considered ‘mass surveillance’ from its assessment. In
addition, the case studies concerning counter-terrorism
examined by the report appeared to relate to intelligence
gathering in areas of armed conict, which meant that
alternative means of getting information, such as tar-
geted surveillance and human intelligence, were not
available. See: Anderson, D., Report of the bulk powers
review, August 2016, 20-21, 80-91. It should also be
noted that former intelligence analysts have explained
that it is technologically possible to obtain the same data
without collecting such a large volume of information
to begin with. is can be done by applying the lter
49
Security
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Human Rights
prior to (rather than after) the collection of the data. See
e.g., Binney, W. et al., ‘We could have stopped the Paris
attacks’, 23 November 2015, openDemocracy.
40 UK Parliament Joint Committee on the Draft In-
vestigatory Powers Bill, Oral evidence, Jesper Lund,
Chairman, the Danish IT Political Association, (QQ
234-249), 6 January 2016; Techpresident, ‘In Denmark,
online tracking of citizens in an unwieldy failure, 22
May 2013; Raab, C., et al., ‘Increasing resilience in
surveillance societies’, 2013, 41-42; European Digital
Rights, ‘Shadow evaluation report on the Data Reten-
tion Directive (2006/24/EC) 17 April 2011, 13-15.
41 See, for example: European Commission, ‘Evidence
for necessity of data retention in the EU, March 2013.
e report makes no eort to evaluate the anecdotal
evidence provided by European governments.
42 e Telegraph, ‘Only a fraction of terror suspects can be
watched 24/7’, 24 November 2014; BBC News, ‘Terror
watch lists: Can you keep tabs on every suspect?’ 2 June
2013.
43 Gallagher, R., ‘From Paris to Boston, terrorists were
already known to authorities’, e Intercept, 18 Novem-
ber 2015; ABC, ‘Un inspector asegura que perseguían a
varios de los acusados desde enero de 2003’ 21 March
2007; Rein ares, F., ‘Af ter the Madrid bombi ngs: Internal
security reforms and the prevention of global terrorism
in Spain’, Real Instituto Elcano working paper 40/2008,
14 October 2008; El Mundo, ‘La Policía controlaba tres
pisos del 11-M en vísperas de la masacre’, 10 August
2005; Coroner’s inquests into the London Bombings
of 7 July 2015, Report under Rule 43 of the Coroner’s
rules 1984, 6 May 2011; Intelligence and Security
Committee of Parliament, Report on the intelligence
relating to the murder of Fusilier Lee Rigby, 25 No-
vember 2014; New York Times, ‘Suspect held in Jewish
museum killings’, 1 June 2014; e Guardian, ‘French
suspect in Brussels Jewish museum attack spent year in
Syria’, 1 June 2014; Le Monde, ‘“Charlie Hebdo”: quand
la DGSI réécrit l’histoire’, 3 April 2015; Wall Street
Journal, ‘Overburdened French dropped surveillance of
brothers’, 9 January 2015; e Guardian, ‘French and
Belgian intelligence knew Paris attackers had jihadi
backgrounds’, 16 November 2015; e Guardian, ‘How
the French intelligence agencies failed before the Paris
attacks’, 19 November 2015; Le Monde, ‘Attentats de
13 novembre: quelles terroristes étaient déjà repérés?,
27 November 2015; Financial Times, ‘Belgium admits
mishandling Turkish terror warnings’, 25 March 2016;
RTBF, ‘Faute de moyens, la surveillance des frères Ab-
deslam avait été abandonnée’, 26 April 2016; Politico,
‘Belgian police knew since 2014 that Abdeslam brothers
planned “irreversible act”’, 28 April 2016; Politico,
‘Belgian police aborted Abdeslam investigation months
before Paris attacks, media report’, 17 May 2016; Flan-
ders Today, ‘Airport bomber monitored by police since
last summer’, 2 June 2016; Mail Online, ‘MI5 missed
chance to foil Paris and Brussels terrorists: Undercover
operation was halted three months before meeting
between ringleader and British extremists’, 4 October
2016; e Guardian, ‘MI5 opens inquiries into missed
warnings over Manchester terror threat, 29 May 2017;
e Telegraph, ‘London Bridge attack latest: Terrorists
named as police say they were not under surveillance as
the posed “low risk”’, 6 June 2017.
44 is seems to be because those who are self-radicalised
are less likely to have come to the attention of security
services by associating with other violent extremists.
However, this is not always the case. For example, the
individual who attacked the UK House of Commons in
2017 was known to the security services because he as-
sociated with extremists. See: e Independent, ‘Khalid
Masood: London terror attacker “was not lone wolf ” but
part of a wider conspiracy, security ocials believe’, 24
March 2017. Similarly, the individual responsible for
the lorry attack on a Christmas market in Berlin had
been under investigation for preparing an attack. See:
BBC News, ‘Berlin truck attack: Tunisian perpetrator
Anis Amri’, 23 December 2016. Sometimes an attacker
is both known to the authorities for their extremist
views and for mental health problems. See e.g.: New
York Times, ‘Suspect in Hamburg attacks was known
to German police’, 29 July 2017.
45 See: Europol, ‘Lone actor attacks - Recent develop-
ments’, 20 July 2016; Politico, ‘Europol spotlights
mental health in lone wolf attacks’, 20 July 2016. News
reports on lone actor attacks taking place after the pub-
lication of the Europol paper frequently note that the
attacker had received treatment for mental illnesses: e
Telegraph, ‘Ali Sonboly: Everything we know about the
Munich gunman’, 24 July 2016; BBC News, ‘Germany
“was warned about Ansbach suicide bomber’, 12 August
2016; DW, ‘Alleged Düsseldorf ax attacker “apparently
mentally ill”, 9 March 2017.
46 UK Parliament Joint Committee on the Draft Investi-
gatory Powers Bill, Oral evidence, William E Binney,
retired Technical Director of the United States National
Security Agency, (QQ 234-249), 6 January 2016; Bin-
ney, W. et al., ‘We could have stopped the Paris attacks’,
23 November 2015; e Intercept, ‘Inside NSA, ocials