Abstract:  This article begins by recounting a series of mass surveillance practices conducted by members of the “Five Eyes” spying alliance. While boundary- and intersubjectivity-based theories of privacy register some of the harms linked to such practices I demonstrate how neither are holistically capable of registering these harms. Given these theories’ deficiencies I argue that critiques of signals intelligence surveillance practices can be better grounded on why the practices intrude on basic communicative rights, including those related to privacy. The crux of the argument is that pervasive mass surveillance erodes essential boundaries between public and private spheres by compromising populations’ abilities to freely communicate with one another and, in the process, erodes the integrity of democratic processes and institutions. Such erosions are captured as privacy violations but, ultimately, are more destructive to the fabric of society than are registered by theories of privacy alone. After demonstrating the value of adopting a communicative rights approach to critique signals intelligence surveillance I conclude by arguing that this approach also lets us clarify the international normative implications of such surveillance, that it provides a novel way of conceptualizing legal harm linked to the surveillance, and that it showcases the overall value of focusing on the implications of interfering with communications first, and as such interferences constituting privacy violations second. Ultimately, by adopting this Habermasian inspired mode of analysis we can develop more holistic ways of conceptualizing harms associated with signals intelligence practices than are provided by either boundary- or intersubjective-based theories of privacy.

Keywords:  critical theory; democracy; Habermas; intelligence; national security; privacy; surveillance; telecommunications

Published:   20 October 2015

Issue:   Vol 3, No 3 (2015): Surveillance: Critical Analysis and Current Challenges (Part II)