Is Surveillance Justified?

Photo by Erin Song on Unsplash

“He sees you when you’re sleeping. He knows when you’re awake. He knows if you’ve been bad or good, so be good for goodness sake!”[1] The words from the Christmas jingle reflect what most parents know – the threat of surveillance is sufficient to keep their children in line, at least for a while until Christmas is over. While adults know that there is no Santa Claus watching every move we make, the reality is no less sinister. Information is power. Surveillance is the means used to obtain information on a target, with such information often coming from the target. The target is closely monitored to gather information on his or her behaviour from activities and the verbal and written information they generate. Common modes of surveillance include video surveillance with CCTV cameras ubiquitous in many cities around the world. Such footage when paired with facial recognition can make our movements and actions significantly transparent to the authorities. Surveillance also includes monitoring both publicly available and private sources of information. Our privacy may routinely be invaded, where the data we create on our computers and mobile devices are routinely scanned by machines, in the name of providing security to the people[2] or for commercial exploitation.[3]

Through examining the ethical theories of consequentialism, conventionalism and moral exceptionalism, this paper explores whether surveillance is justified and examine whether protestors in Hong Kong are justified in breaking the anti-mask law, which aids surveillance.

Higher Consequentialism

Surveillance is a double-edged sword. Those who carry out surveillance, often state authorities, naturally focus on its merits. By 2020, China plans to establish a social credit system, where the “creditworthiness and trustworthiness” of individuals and organisations are given a computational score based on their social and economic activities.[4] China’s Premier Li Keqiang said: “A fine [social] credit system provides market entities with the information they need for business operations. A blacklist should be established. Access to and sharing of information, which can serve to incentivise or discipline, helps reduce transaction costs and improve the business environment.”[5] In addition to economic aims, there are also social aims, where the system will “allow the trustworthy to roam everywhere under heaven while making it hard for the discredited to take a single step.”[6]

Surveillance holds the promise of preventing or deterring undesirable acts. In Singapore, lift vandalism decreased four times after surveillance systems were installed in the lifts, with the twin effects of evidence against offenders and deterrence cited as the cause of the decrease.[7] According to the American Civil Liberties Union (ACLU), mass surveillance by the National Security Agency greatly expanded after the September 11, 2001 attacks in the US in the name of national security. The ACLU views this trend as noxious and hence to be resisted.[8] However, if through such surveillance, terrorist attacks can be prevented leading to many lives saved, does it not warrant the cost of such systems and the disutility they may entail?

Such disutility includes abuse of the information by governments to oppress political opponents and other ‘undesirables.’ A system sweeping up huge amounts of data on everyone would be a goldmine for malicious actors who can use the information for criminal purposes. Errors made by such systems may result in innocent people being punished or blacklisted. However, these instances only express the potential for abuse, being hacked, or error, and not actual abuse, malice or error. Such potentialities can be guarded against through regulations and technological safeguards, while the benefits of mass surveillance are by contrast present and tangible. If we apply Bentham’s calculus of utilitarianism, it may show that the benefits outweigh the costs, even after accounting for the risk of abuse, malice or error. However, Mill asserts that there exist higher pleasures that are so superior in quality to base pleasures that man “would not resign it for any quantity of the other pleasure.”[9] Such pleasures include the “love of liberty” and a “sense of dignity.” Our right to privacy is part of the love of liberty and personal dignity. If Mill is right that our love of liberty is so precious that we would not trade it for all the benefits of surveillance, then should surveillance be banned since it intrudes on our liberty? Is surveillance necessary for society?

Conventionalism Considered

Is living in a society even necessary for man? Hume argues that it is. According to him, nature has given man endless wants and needs but has not provided him all the means to fulfil them. Man thus realises that living in society is the solution: “By society alone he is able to supply his defects. […] By society all his infirmities are compensated.”[10] When one labours alone, what one can achieve is small. Because such a man has to divide his efforts to meet all his needs, he is unable to be particularly good at any work. However, if he fails at any of the required tasks, he will be ruined. By combining our powers together in a society, we increase them. Through the division of labour, we enhance our abilities. Through mutual assistance, we decrease our exposure to misfortune. However, human selfishness, and violence from others aiming to steal our possessions due to resource scarcity, makes living with others problematic. To solve this difficulty, the members of society enter into a “convention […] to bestow stability on the possession of those external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry.”[11]

So that we can be free to enjoy our possessions peacefully, we have to mutually restrain our passions and self-interest, in accordance with the convention. Hence, to preserve Mill’s higher pleasures of love of liberty and dignity, perhaps we need to accept limitations to how we would otherwise behave. Surveillance is one of the tools we can use to restrain one another, one tool in our toolbox of societal conventions of law and justice. However, to prevent surveillance itself from crushing our liberty, it needs to be likewise limited, governed by a convention with clearly established limits which the members of society can agree to.

Above the Law

If one does not agree with the limits, and more broadly, the convention or the law, can one legitimately defy it? In Hume’s account, they cannot, even if justice and the public interest is better served by breaking the law. He writes in A Treatise of Human Nature:

A single act of justice is frequently contrary to public interest; and were it to stand alone, without being follow’d by other acts, may, in itself, be very prejudicial to society. […] But however single acts of justice may be contrary, either to public or private interest, ‘tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. ‘Tis impossible to separate the good from the ill. […] Tho’ in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order, which it establishes in society. And even every individual person must find himself a gainer, on balancing the account; since, without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worst situation that can possibly be suppos’d in society.[12]

Hume appeals in this passage to an overall gain on “balancing the account,” a move reminiscent of the utilitarian calculus though he predates Bentham. Can there however be situations where such single acts of justice ultimately benefit society? How can one claim such an exception to warrant suspending the prevailing social morality? Abraham is the exemplar par excellence of such moral exceptionalism. Because of his “teleological suspension of the ethical,”[13] he became “the father of faith”[14] across three major world religions, Christianity, Islam and Judaism.

“The ethical […] is the universal,” writes Kierkegaard in Fear and Trembling.[15] The ethical is the prevailing social morality that applies to everyone at all times, akin to Hume’s conventionalism. If one claims a moral exception, he is sinning against society. Abraham’s faith in God placed him in a bind when God commanded him to sacrifice his son, Isaac. If he follows his faith and obeys the command, society will condemn him as a murderer. If he does not, he disobeys God. Hence to abide by his faith, he must, as a single individual, paradoxically claim to be above the universal of societal norms and laws. He was caught in an absurd situation – to do the right thing, by obeying God, requires him to do the wrong thing, by killing his son.

How can his act be justified? Even if the outcome is good, Kierkegaard does not think that suffices to justify moral exceptionalism, rejecting such consequentialism as an “esthetic flirtation with the result” which ignores “the anxiety, the distress, [and] the paradox” confronting the knight of faith.[16] “If the one who is to act wants to judge himself by the result, he will never begin,” he writes. “Although the result may give joy to the entire world, it cannot help the hero, for he would not know the result until the whole thing was over, and he would not become a hero by that but by making a beginning.” Hence, “it is not what happens to me that makes me great but what I do.”[17]

Can protestors in Hong Kong draw on Kierkegaard’s theory of moral exceptionalism to justify their actions? The city, a special administrative region of China, is in the throes of a popular revolution. What began as a protest against a proposed extradition law in June 2019 have since evolved to become a wider fight for democracy and the future of Hong Kong. Most of the mass protests are illegal and the outcome of their actions remains uncertain; it seems that China is unlikely to give in to the protestors’ demands for more democracy though the protestors know they must act regardless of the result, like Kierkegaard’s hero who must make a beginning. They certainly face anxiety and distress, with concerns for their current and future livelihood and their personal safety against police violence and state retribution. The paradox they face is that they must fight for the future of the city they love and by doing so break its laws.

In October 2019, the government invoked emergency powers to ban the wearing of face masks in public assemblies. Many protestors wear masks to hide their identities for fear of legal prosecution or state retribution,[18] though some have exploited the anonymity to commit crimes or violence. According to a government statement, “the prohibition on facial covering is urgently needed for police investigation and collection of evidence, and for deterring violent and illegal behaviour,” that is, to aid state surveillance efforts.[19] Many protestors have continued to don masks and the protests have escalated since the ban became the law. Is breaking the law in this instance legitimate? Can the protestors claim that because they are fighting for a higher cause, the future of their city, they can defy such state surveillance? Can they suspend the ethical and be above the universal, analogous to Abraham during his spiritual trial?

In the face of oppression and unjust laws, civil disobedience has been considered a reasonable way to oppose tyranny after exhausting legal means of opposition. However, civil disobedience tends to be non-violent, public and non-secretive, where the protestors are willing to accept punishment. Their tactics also need to be proportionate to the evil fought. The fight for democracy in Hong Kong has been multi-pronged. In terms of legal means of opposition on the political front, pro-democracy politicians were disqualified from parliament in 2017,[20] and more recently, Joshua Wong, a leader of the protest movement, was barred from running for a district council.[21] Peaceful protests such as the 2014 Umbrella Movement, largely peaceful on the side of the protestors though there were police and thug violence against the protestors, did not succeed in political reform. The 2019 Hong Kong protests began as non-violent but has since turned shockingly violent, with protesters attacking police and public infrastructure such as subway stations though they may defend their actions as a reaction against police and state violence. Even more extreme is how they have allegedly hurt bystanders and members of the public who oppose the protests.[22] Masks were mostly not worn during the 2014 protests, allowing the protestors to be easily identified and arrested[23] but tactics changed in 2019, where masks have become a symbol of resistance after they have been outlawed.

According to Greenawalt,

The publicness of civil disobedience is mainly significant because it ensures that violators can be identified and arrested, and can be punished if authorities proceed against them. Voluntary submission to punishment goes some way towards satisfying one’s duty to be fair to others in respect to law. […] But when people act openly in a way that makes punishment simple, they implicitly declare that they seek no personal advantage from their action and are willing to pay the appropriate penalty.[24]

For Rawls, civil disobedience must be non-violent –

[Civil disobedience] tries to avoid the use of violence […] not from the abhorrence of the use of force in principle, but because it is a final expression of one’s case. To engage in violent acts […] is incompatible with civil disobedience as a mode of address. […] Civil disobedience is giving voice to conscientious and deeply held convictions; while it may warn and admonish, it is not itself a threat.[25]

The violence of the protests, especially against civilians, arguably undermines the protestors’ cause. According to Rawls,

The law is broken, but fidelity to law is expressed by the public and nonviolent nature of the act, by the willingness to accept the legal consequences of one’s conduct. This fidelity to law helps to establish to the majority that the act is indeed politically conscientious and sincere, and that it is intended to address the public’s sense of justice. To be completely open and nonviolent is to give bond of one’s security.[26]

The Hong Kong government has a point in wanting to deter violent behaviour. By shedding their masks at this critical juncture, the protestors will allow themselves to be identified but it will also reduce criminal acts of violence against the very people they are fighting for, since those intent on crimes unrelated to the protest can no longer rely on anonymity to protect themselves from identification and arrest. By shedding their masks, the protestors can regain the moral high ground, demonstrating to the people of Hong Kong and the world that they are sincere and unafraid, that the future of democracy in the city is so important to them that they are willing to face criminal prosecution and ideological persecution to achieve their aims. If they can be unified in shedding their masks, in the same way they have unified to protest, they will have safety in numbers – with over a million protestors,[27] the police cannot arrest them all and the state cannot persecute them all.

The situation in Hong Kong continues to unfold. On November 18, 2019, the anti-mask law was ruled unconstitutional by Hong Kong’s High Court. The Chinese government slammed the ruling, arguing that only China’s national legislature has the right to rule on constitutional matters.[28] The protestors may claim moral exceptionalism in carrying out civil disobedience, which as an act of social protest is well-established through such movements popularised by Gandhi and Martin Luther King, Jr.[29] However, the violence plaguing their movement is discrediting their cause. Civil disobedience requires a publicness, a willingness to face the legal consequences. The threat of punishment is real for the protestors, but in taking off their masks, they will demonstrate their sincerity and earnestness, and in that way elevate the importance of their fight. It will also reduce criminal acts of violence, which will boost popular support for their cause.

Conclusion

Utilitarianism in Mill’s account suggests that higher pleasures such as liberty are worth protecting, though when contrasted against Hume’s conventionalism, would suggest they require tempering. We can use surveillance to restrain one another’s darker tendencies but surveillance itself needs to be limited to avoid crushing our liberty. The paper then examines moral exceptionalism in the case of Hong Kong’s ongoing revolution. It concluded that while the protestors can claim moral exceptionalism in conducting a civil disobedience movement, the violence now linked to the protest is undermining their cause. By taking off their face-masks, the protestors may help their cause by regaining the moral high ground, demonstrating their earnestness while at the same time reducing criminal acts of violence.

Fighting French colonisation and racism in the 1950s, Fanon writes: “I recognise that I have one right alone: That of demanding human behaviour from the other. One duty alone: That of not renouncing my freedom through my choices.”[30] To accept some level of surveillance may improve the security of our society, but never too much, for then we would kill what is precious about a democratic society – our freedom.

Bibliography

Primary Sources

Coots, John Frederick, and Haven Gillespie. “Santa Claus Is Coming to Town.” Leo Feist Inc., 1934.
Fanon, Frantz. Black Skin, White Masks. Translated by Charles Lam Markmann. New ed. Get Political. 1952. London: Pluto Press, 2008.
Hume, David. A Treatise of Human Nature. 1739. London: Scientia Verlag Aalen, 1964.
Kierkegaard, Søren, Howard V. Hong, and Edna H. Hong. Fear and Trembling / Repetition. 1843. Princeton: Princeton University Press, 1983.
Mill, John Stuart. Utilitarianism. 1863. Waiheke Island: Floating Press, 2009.
Rawls, John. A Theory of Justice: Revised Edition. Harvard University Press, 1971.

 Secondary Sources

American Civil Liberties Union. “NSA Surveillance.” American Civil Liberties Union. Accessed November 17, 2019. https://www.aclu.org/issues/national-security/privacy-and-surveillance/nsa-surveillance.
Greenawalt, Kent. “Civil Disobedience.” In Routledge Encyclopedia of Philosophy. London: Taylor and Francis, 1998. doi: 10.4324/9780415249126-S005-1.
Liang, Fan, Vishnupriya Das, Nadiya Kostyuk, and Muzammil M. Hussain. “Constructing a Data-Driven Society: China’s Social Credit System as a State Surveillance Infrastructure: China’s Social Credit System as State Surveillance.” Policy & Internet 10, no. 4 (2018): 415–53. https://doi.org/10.1002/poi3.183.
West, Sarah Myers. “Data Capitalism: Redefining the Logics of Surveillance and Privacy.” Business & Society 58, no. 1 (2019): 20–41.
Mistreanu, Simina. “Life Inside China’s Social Credit Laboratory.” Foreign Policy, April 3, 2018. https://foreignpolicy.com/2018/04/03/life-inside-chinas-social-credit-laboratory/.
The Government of the Hong Kong Special Administrative Region. “Prohibition on Face Covering Regulation Gazetted,” October 4, 2019. https://www.info.gov.hk/gia/general/201910/04/P2019100400613.htm.

News Sources

ABC News (Australian Broadcasting Corporation). “Hong Kong Police Arrest More 2014 Umbrella Movement Pro-Democracy Protest Leaders.” ABC News (Australian Broadcasting Corporation), March 27, 2017. https://www.abc.net.au/news/2017-03-28/hong-kong-police-arrest-more-2014-democracy-protest-leaders/8392110.
Ang, Prisca. “Fewer Lift Vandalism Cases, Thanks to Lift Surveillance Systems.” Text. The Straits Times, November 15, 2019. https://www.straitstimes.com/singapore/fewer-lift-vandalism-cases-thanks-to-lift-surveillance-systems.
BBC News. “Huge Crowds Rally Peacefully in Hong Kong.” BBC News, August 19, 2019. https://www.bbc.com/news/world-asia-china-49386298.
Cheung, Tony, and William Zheng. “Anti-Mask Law Ruling from Hong Kong Judges Slammed by Beijing.” South China Morning Post, November 19, 2019. https://www.scmp.com/news/hong-kong/politics/article/3038325/hong-kong-judges-slammed-chinas-top-legislative-body.
Chinoy, Mike. “Joshua Wong Election Ban: Hong Kong Drives Protesters Back to the Streets.” South China Morning Post, October 31, 2019. https://www.scmp.com/comment/opinion/article/3035481/blocking-joshua-wong-standing-election-hong-kong-just-driving.
Haas, Benjamin. “Hong Kong Pro-Democracy Legislators Disqualified From Parliament.” The Guardian, July 14, 2017. https://www.theguardian.com/world/2017/jul/14/hong-kong-pro-democracy-legislators-disqualified-parliament.
Lo, Alex. “Is Hong Kong OK With Man Being Set on Fire?” South China Morning Post, November 12, 2019. https://www.scmp.com/comment/opinion/article/3037383/hong-kong-ok-man-being-set-fire.
Xinhua. “China Speeds up Effort in Building a Social Credit System.” Xinhua Net, June 6, 2018. http://www.xinhuanet.com/english/2018-06/06/c_137235486.htm.
Zhou, Viola. “What You Need to Know About Hong Kong’s New Anti-Mask Law.” Inkstone News, October 4, 2019. https://www.inkstonenews.com/politics/hong-kong-government-announces-mask-ban-deter-protesters/article/3031576.

[1] John Frederick Coots and Haven Gillespie, “Santa Claus Is Coming to Town” (Leo Feist Inc., 1934).
[2] American Civil Liberties Union, “NSA Surveillance,” American Civil Liberties Union, accessed November 17, 2019, https://www.aclu.org/issues/national-security/privacy-and-surveillance/nsa-surveillance.
[3] See Sarah Myers West, “Data Capitalism: Redefining the Logics of Surveillance and Privacy,” Business & Society 58, no. 1 (2019): 20–41.
[4] Fan Liang et al., “Constructing a Data-Driven Society: China’s Social Credit System as a State Surveillance Infrastructure: China’s Social Credit System as State Surveillance,” Policy & Internet 10, no. 4 (2018): 146, doi: 10.1002/poi3.183.
[5] Xinhua, “China Speeds up Effort in Building a Social Credit System,” Xinhua Net, June 6, 2018, http://www.xinhuanet.com/english/2018-06/06/c_137235486.htm.
[6] Simina Mistreanu, “Life Inside China’s Social Credit Laboratory,” Foreign Policy, April 3, 2018, https://foreignpolicy.com/2018/04/03/life-inside-chinas-social-credit-laboratory/.
[7] Prisca Ang, “Fewer Lift Vandalism Cases, Thanks to Lift Surveillance Systems,” Text, The Straits Times, November 15, 2019, https://www.straitstimes.com/singapore/fewer-lift-vandalism-cases-thanks-to-lift-surveillance-systems.
[8] American Civil Liberties Union, “NSA Surveillance.”
[9] John Stuart Mill, Utilitarianism (1863. Waiheke Island: Floating Press, 2009), 17.
[10] David Hume, A Treatise of Human Nature (1739. London: Scientia Verlag Aalen, 1964), 259.
[11] Ibid., 262.
[12] Ibid., 269.
[13] Søren Kierkegaard, Howard V. Hong, and Edna H. Hong, Fear and Trembling / Repetition (Princeton: Princeton University Press, 1983), 56.
[14] Ibid., 66.
[15] Ibid., 54.
[16] Ibid., 63.
[17] Ibid., 64.
[18] Viola Zhou, “What You Need to Know About Hong Kong’s New Anti-Mask Law,” Inkstone News, October 4, 2019, https://www.inkstonenews.com/politics/hong-kong-government-announces-mask-ban-deter-protesters/article/3031576.
[19] The Government of the Hong Kong Special Administrative Region, “Prohibition on Face Covering Regulation Gazetted,” October 4, 2019, https://www.info.gov.hk/gia/general/201910/04/P2019100400613.htm.
[20] Benjamin Haas, “Hong Kong Pro-Democracy Legislators Disqualified From Parliament,” The Guardian, July 14, 2017, https://www.theguardian.com/world/2017/jul/14/hong-kong-pro-democracy-legislators-disqualified-parliament.
[21] Mike Chinoy, “Joshua Wong Election Ban: Hong Kong Drives Protesters Back to the Streets,” South China Morning Post, October 31, 2019, https://www.scmp.com/comment/opinion/article/3035481/blocking-joshua-wong-standing-election-hong-kong-just-driving.
[22] Alex Lo, “Is Hong Kong OK With Man Being Set on Fire?,” South China Morning Post, November 12, 2019, https://www.scmp.com/comment/opinion/article/3037383/hong-kong-ok-man-being-set-fire.
[23] ABC News (Australian Broadcasting Corporation), “Hong Kong Police Arrest More 2014 Umbrella Movement Pro-Democracy Protest Leaders,” ABC News (Australian Broadcasting Corporation), March 27, 2017, https://www.abc.net.au/news/2017-03-28/hong-kong-police-arrest-more-2014-democracy-protest-leaders/8392110.
[24] Kent Greenawalt, “Civil Disobedience,” in Routledge Encyclopedia of Philosophy (London: Taylor and Francis, 1998), doi: 10.4324/9780415249126-S005-1.
[25] John Rawls, A Theory of Justice: Revised Edition (Harvard University Press, 1971), 321–22.
[26] Ibid., 322.
[27] BBC News, “Huge Crowds Rally Peacefully in Hong Kong,” BBC News, August 19, 2019, https://www.bbc.com/news/world-asia-china-49386298.
[28] Tony Cheung and William Zheng, “Anti-Mask Law Ruling from Hong Kong Judges Slammed by Beijing,” South China Morning Post, November 19, 2019, https://www.scmp.com/news/hong-kong/politics/article/3038325/hong-kong-judges-slammed-chinas-top-legislative-body.
[29] Greenawalt, “Civil Disobedience.”
[30] Frantz Fanon, Black Skin, White Masks, trans. Charles Lam Markmann, New ed, Get Political (1952. London: Pluto Press, 2008), 179.