Balancing Privacy and Free Expression Online
by Jodie Ginsberg
| IF YOU HAVE NOTHING TO HIDE, THEN YOU HAVE NOTHING TO FEAR, THE SAYING GOES. IT SHOULDN’T STOP YOU FROM EXPRESSING YOURSELF, BUT IT DOES.
[This is an edited version of a speech originally given at the Internet Librarian International conference in 2015. —Ed.]
Privacy and security often seem to be rights that compete with freedom of expression in an information age. Based on the experience of Index on Censorship—the 43-year-old anti-censorship organization that I have the privilege to lead—I want to argue that these are not mutually exclusive rights. They’re importantly symbiotic rights, which must coexist equally for the other to survive.
Why is it important to tackle censorship? Sometimes, we forget to ask ourselves this question, because we take it for granted that freedom is a good thing. Consider all those who were quick to shout “Je suis Charlie” following the attacks on the French satirical magazine Charlie Hebdo. The knee-jerk reaction in Western liberal democracies is often to say you are for free speech, without ever really stopping to consider why you might be for it—or why it’s a good thing.
It is vital to comprehend the value inherent in free expression to understand why some of the current tensions between privacy and security on the one hand and free speech on the other exist. It is also crucial for understanding ways to tackle the dangerous trade-offs that are increasingly being made in which free expression is seen as a right that can legitimately be pitted against privacy and security.
John Stuart Mill expresses it best when he talks of free expression being fundamental to the “permanent interests of man as a progressive being.” In On Liberty, he argues that “The particular evil of silencing the expression of an opinion is that it is robbing the human race. … If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.” The free exchange of ideas, opinions, and information is a kind of positive cacophony from which clear sounds emerge. In this doctrine, it is not just the having of ideas, but the expressing of them that becomes vital.
And it is here that those who would pit freedom of expression against privacy find grounds for the undermining of the latter. If the goal of free expression is the exchange of ideas for the better progression of mankind through the discovery of truths, then keeping ideas secret undermines that goal. This is the particularly pervasive argument used in Western liberal democracies to justify surveillance. If you have nothing to hide, then you have nothing to fear, the saying goes. It shouldn’t stop you from expressing yourself, but it does.
A study by the PEN American Center in 2015 demonstrated that knowledge of mass surveillance by governments is already changing the way in which writers work. The report, “Global Chilling,” showed an astonishing one-third of writers (34%) living in countries deemed “free”—based on the level of political rights and civil liberties—had avoided writing or speaking on a particular topic, or seriously considered it, due to fear of government surveillance. Some 42% of writers in free countries have curtailed or avoided activities on social media, or seriously considered it, due to fear of government surveillance, the survey found.
Privacy, then, is vital for free communication. Index on Censorship knows this from a long history that has ridden both the analog and the digital wave. In a recent edition of the magazine, for example, retired primary school teacher Nancy Martinez Villareal recalled smuggling pieces of information to the revolutionary left movement in Chile, in documents hidden in lipstick tubes. Copies of our own magazine were smuggled into Eastern Europe during the 1980s by intrepid reporters hiding the copies under bunches of then much-coveted bananas. We now communicate with persecuted individuals in some of the world’s most repressive environments for free speech using encrypted communications such as PGP. In addition to these services, projects such as Ethereum and MaidSafe are building an entirely new web out of the spare power and hard drive space from millions of computers put on the network by their owners. Because the network is distributed across all these individual computers, it is more or less impossible to censor.
Safe From Harm
In addition to security, protection of the individual—using notions of harm defined by the individual themselves—is increasingly being used as an argument for censorship. The U.S.’ Children’s Internet Protection Act (CIPA), for example, brought new levels of internet censorship to libraries across the country. CIPA was signed into law in 2000 and found constitutional by the U.S. Supreme Court in 2003. Two previous attempts at legislating in this area were held to be unconstitutional by the Supreme Court on First Amendment grounds.
As the Electronic Frontier Foundation has written eloquently on this, the law is supposed to encourage public libraries and schools to filter child pornography and obscene or “harmful to minors” images from the library’s internet connection. However, as with all such laws, the devil is in the implementation, not the original intention.
Schools and libraries subject to CIPA must certify that the institution has adopted an internet safety policy that includes use of a “technology protection measure”—in other words, filtering or blocking software—to keep adults from accessing images online that are obscene or child pornography.
Only images, not text or entire websites, are legally required to be blocked. Libraries are not required to filter content simply because it is sexual in nature. Libraries aren’t required to block social networking sites, political sites, sites advocating for LGBT issues, or sites that explore controversial issues such as euthanasia. However, this is what happens, either through technological illiteracy or overzealous implementation.
Librarians play an important role in ensuring free speech online. The American Library Association’s Code of Ethics states, “We uphold the principles of intellectual freedom and resist all efforts to censor library resources.”
To do this, it is important that librarians arm themselves with the knowledge needed to defend against censorship. An understanding of the limits of technological filters is, for example, a good start. Providing spaces for open discourse is another area in which libraries can play an active role in supporting free expression, using social media and the online world, to promote discussion in the offline one.
Index on Censorship knows well the importance of the scholar in freedom of expression. Although we have come to be known as Index, the charity is officially called Writers and Scholars Educational Trust—an effort to capture as simply as possible the individuals whom we intended to support from the outset. The title was never intended to be exclusive, but the inclusion of “scholar” signals the importance our founders attached to the role of the academic as a defender and promoter of free speech. In 2016, as we watch the spaces for free expression narrow, we will work doubly hard to ensure that traditional bastions for free speech—such as universities and indeed libraries—remain an arena for the clash of ideas, not the closure of minds.