Until 2013, controversies around government surveillance tended to be limited to concerns over CCTV and identity cards. For the most part it remained a minority issue, with the debate tending to be largely the preserve of civil liberties lawyers and NGOs. Yet since the leak of secret US intelligence files by NSA whistle-blower Edward Snowden, the issue of mass government retention of communications data – including emails, web browsing histories and messages on social media – has profoundly changed the nature of the surveillance debate.

In May this year, the vast majority of congressmen in the US House of Representatives voted to restrict the data-gathering capabilities of the intelligence agencies, largely in response to the Snowden revelations. The proposed changes to the laws regulating the NSA were still criticised by campaigners for being too weak. However, the ferocity of the debate illustrated how seriously the issue has come to be viewed by decision-makers in the USA since 2013.

Arguments against online surveillance are often rooted in concerns about privacy and state secrecy. Although support for intelligence activities in Britain and America was often high among the general public in both countries, many have criticised them in the wake of the 2013 Snowden revelations for refusing to submit to proper scrutiny over the Tempora and Prism programmes, which controversially involved the capture of mass digital datasets without, until the Snowden leaks, the widespread knowledge of those being surveyed (in other words, every member of the general public in the UK and USA, and countries beyond).

Privacy advocates frequently claim that a system of information-gathering undertaken without the permission of those who hold the information is immoral, particularly in societies that purport to be democratic and based on the consent of their populations. Furthermore, government attempts to conceal and mislead their populations about such policies suggest an awareness that such activities may not always contain the best interests of their citizens at heart, but are possibly aimed at appeasing the whims of powerful vested interests within intelligence circles.[1]

A NECESSARY EVIL

Those in favour of mass surveillance counter this by claiming that intelligence agencies exist to be able to gather information relating to terrorism, narcotics trafficking, and arms proliferation, and therefore need the most up-to-date technologies in order to do so – including intercepting internet cables. They also claim intelligence agencies only access the metadata – the information about browsing and the locations of online users – rather than the specific content of emails and social media messages, and that only those suspected to be from criminals ever get intercepted by humans.[2]

One of the few points of convergence between the two camps would be that in a just society that manages to cater to the needs of its citizens, surveillance in some form or another is undesirable, but a necessary evil. In this, there is a parallel with Just War theory in the sense that both surveillance and war can be seen as ultimately wrong, but needed in some form or another to prevent greater evils from occurring. Just War Theory can thus potentially help us to approach surveillance from a morally coherent angle.

NO HIDDEN AGENDAS

David Omand, the former head of Britain's Government Central Headquarters (GCHQ), is among commentators who have used Just War Theory to segue into a framework for surveillance that claims to be both ethical and effective. Omand claims that the cause must be just, with the agencies not over-stepping their boundaries, that there must be no ‘hidden agendas’ beyond concern for national well-being, and that it must be proportionate, lawful, open and realistic – tenets that he claims are already forced upon MI5, MI6 and GCHQ by the existing legislation.[3]

However, a significant flaw with Omand’s analysis is that in the wake of the Snowden revelations, many critics drew attention to the concern that the intelligence agencies have flouted both domestic and international laws in their excessive, evasive and potentially futile attempts at monitoring all electronic communications, combined in Britain with their attempts to harass and intimidate the journalists that tried to expose the Snowden revelations.[4] His claims rest on few tangible examples of the restrictions laid down by Just War theory actually being applied to the intelligence agencies, and he also maintains that for the most part, UK legislation is an adequate enough check against excessive power – which somewhat contradicts the need for a new framework for approaching surveillance in the first place.

WATCHFULNESS AND LOVE

Theologian Eric Stoddart has attempted to place surveillance within a context that has a more explicitly Christian ethic at its core. He claims that surveillance needs to have human well-being and a concern for the dignity of all humans at its base, and that the current ideological basis for digital surveillance is rooted excessively in the belief that people need to view every other person as their potential enemy. Instead, he maintains that surveillance needs to be based more on the belief that humans are worthy of dignity, flourishing and support, and that any system designed for our protection can gain much from the Christian belief in God’s watchfulness being drawn from a desire to provide love and protection, rather than to encourage us to view one another with potential loathing and cynicism.

Although theologically sound, Stoddart’s analysis seems to me excessively ethereal, lacking a detailed analysis of how to place ethical restrictions upon the use of digital surveillance. By contrast, Just War theory, with the right application, can expose the flaws within the current means for implementing surveillance and propose a way to implement a more just system.

So what exactly is Just War Theory?

WEIGHING TWO EVILS

The former Archdeacon of York George Austin notably summarised Just War theory through his claim that ‘all war is evil – but a Just War is a lesser of two evils’. The idea of Just War was not introduced per se by Christian thinkers, but St. Augustine was the first to outline a new justification for Christians taking up arms.[5] Just War theory can be seen as an attempt to overcome the essential pacifism of Christianity by stopping violence from becoming an ends in itself, with the teachings of Christ serving as a tool to contain the human capacity for violence and tailor it to proportionate moral ends. It emphasises the importance of ‘putting war on trial,’ thinking about the conditions under which war is justified, and measuring means and ends. Ultimately, it recognises the limits and constraints on the pursuit of ends. It does not solve all the contradictions within warfare, but the measurement of means and the clarification of moral ends are imperative. Ultimately, realpolitik does not work if war is not to become an ends in itself.[6]

PROPER AUTHORITY

The principles of jus ad bellum and jus in bello can be used to expand upon this further. Jus ad bellum refers to the set of criteria advising on what to do before engaging in warfare – crucially, determining whether or not a war is just, and should therefore be waged.

Firstly, for a war to be just, it must be sanctioned and executed by a legitimate body such as the state, described as the ‘Proper Authority.’ Secondly, a war must be waged for reasons that are just, such as to defend the weak or to prevent greater levels of harm and violence from occurring to innocent peoples, or to regain the illegitimate loss of territory or goods. Therefore, a war cannot be just if it is purely for the purpose of wielding power or, in the modern understanding of it, for furthering the self-interest of a particular nation-state.

Thirdly, the ultimate goal of peace must not be eclipsed by whatever violence or carnage might ensue in warfare. Both soldiers and states must fight with the aim of implementing the just outcome which led to war being declared in the first place, and that outcome must be feasible and realistic.[7] Fourthly, any violence deployed in the conflict must be proportional to that which has been inflicted by the other side, instigating the conflict in the first place.

Finally, and perhaps most crucially, war must be a last resort; all other courses of action must have been pursued and found wanting before war is declared as the best one.[8]

A LAST RESORT

Jus in bello follows on from this, as it is the ideological system intended to dictate how war should be conducted when it has been declared. The principles underpinning it include that of military necessity, which maintains that any violent campaigns must be aimed at first and foremost defeating the enemy, in the process limiting any damage or destruction to civilians. The principle of distinction follows this, which asserts clearly that those engaging in warfare must draw a clear line between combatants and non-combatants.

Proportionality takes this further still as a principle, demanding that excessive damage and destruction caused to civilians or civilian property should not be considered a reasonable price to pay for any military advantages. The ultimate goal of having such a set of guidelines is to ensure that wars are limited in length and targeted in scope, and that all those involved in war are protected from abuse, suffering, and infringements of their rights if they come under the rule of the opposing side, and that peace is the final state of being.[9]

It is with these principles in mind that we can grapple with modern issues around warfare, violence, security – and surveillance. The ideas outlined above can be mapped into contemporary debates about where and when it is appropriate to deploy surveillance, working under the assumption that it might be a necessary practice, but that the kind of blanket surveillance exposed by the Snowden revelations should not be permitted. This, then, poses the question of what the proper conditions might be for implementing surveillance.

A USEFUL COMPARISON

Why use Just War Theory at all? Why is it relevant, and what might it look like in practice when applied to surveillance?

The historian AJP Taylor criticised it as the justification of the victorious: “The medieval pursuit of Just War is a pursuit as elusive as the Holy Grail. For it is almost universally true that in war each side thinks itself in the right, and there is no arbiter except victory to decide between them.”[10]

This is a salient criticism, and the arguments I have listed for and against surveillance often appear to support it. This because neutralising the effects of state force can be compromised when both sides talk in terms of obliterating the desires of the other.

Opponents of surveillance talk about dismantling the ‘Big Brother’ state perpetrating the surveillance practices revealed by Snowden, while those in favour of Tempora and Prism employ rhetoric designed to summon support for surveillance due to the claim that it is a vital tool in creating a society free from terrorism and cybercrime.

UNACHIEVABLE GOALS

The goal of obliterating all crime of this nature in particular, both online and offline, is an unachievable one, with the implication underlying the claims of the pro-surveillance lobby being that the right to privacy, if necessary, must be superseded in the effort to defeat the undefeatable. The principles of Just War are arguably violated in this sense.

Furthermore, any suggestion of some form of restraint on the capabilities of state force, in the context of surveillance at least, seems to be absent. The fundamental argument deployed by those in favour seems to be that the state needs to be allowed free reign to use whatever tools it desires in the face of numerous threats[11] – something which undermines Just War theory’s emphasis on external restraints. Furthermore, surveillance is inevitably undertaken pre-emptively, in the hope of catching wrong-doing in the act, rather than acting as a result of wrong-doing being committed – an area that is morally ambiguous under the terms of Just War theory.

DRAWING THE LINE

Yet at the same time, privacy advocates rarely agitate for a world completely free of surveillance, recognising that it can be useful when honing in on particular incidents of criminal activity and if supported by enough appropriate checks and balances. Examples include civil rights organisations such as Liberty, which have deployed the language of proportionality and proper authority in their critiques of surveillance.[12] As was mentioned above, both war and surveillance are undesirable, but difficult to live without in every instance if the peace and security of a nation are to be maintained.

The anger over the Snowden revelations largely appeared to stem from a sense of excessiveness, as well as a lack of accountability and transparency on the part of the intelligence services. Few would wish to see bodies such as GCHQ or the NSA obliterated, but instead would like to see greater levels of scrutiny and increased checks on their power, where systems as all-encompassing as mass surveillance are placed within a framework that allows them to be applied with caveats. If Just War theory were therefore to be applied, how would it look in practice?

ON WHOSE AUTHORITY?

The question of right authority must be posed. In cases of warfare, the body often assumed to be the one with the sole right to use force is the state. In the case of digital surveillance, since the Snowden revelations serious questions have been posed as to whether the governments in both Britain and the US have been wielding their authority in a way that is not legitimate, given that the mass surveillance programmes were undertaken without any open debate, and leading into the second aspect of jus ad bellum, without declaring their intentions.

In order for surveillance to be in line with the principles of right authority and right intention, oversight bodies need to be strengthened, such as Britain's Intelligence and Security Committee (ISC), with full enquiries being conducted, and surveillance must only be allowed in places where there is a clear need – such as with people operating in terrorist cells. The ability to do this must first be cleared by an oversight body, and one that has a high level of impartiality and scrupulousness afforded to it. Recent accusations levied against the ISC imply this is not currently the case.[13] The UK already has a system of handing out warrants for intrusive procedures (such as phone-tapping), but this must be far more rigorously adhered to with online surveillance.

TO WHAT END?

Furthermore, to meet the requirement for jus ad bellum's emphasis on the ultimate goal of peace, there must be assurance given by the relevant government and intelligence agencies that mass surveillance will not be a permanent aspect of the lives of every citizen in each country, without any possible end and with surveillance simply being seen as an ends in itself. Snowden made reference to how far-reaching and impossible to breach government surveillance programmes have become, and the implication that this will continue to be the status quo must come with an assurance that surveillance will be reduced to the scaled-back form required by Just War theory.[14]

To build upon this, surveillance must be proportional and there must be evidence that the threats citizens are faced by warrant such intrusions into their lives. The recent incidents involving the hacking of sim cards and the interception of the emails of world leaders by spies have led to accusations of a breach of trust, and must not be allowed to continue.[15]

Ultimately, surveillance must only have been deployed if other forms of intelligence-gathering are not proved to be possible. If surveillance in any kind of bulk data-gathering form is to be undertaken, then it must be a last resort. Although security considerations mean that not all data can be made available to the public, intelligence agencies must submit to rigorous enquiries the public can be assured are neutral and thorough if this rule has been breached. The people charged with over-seeing the agencies must therefore be trustworthy.

CHECKING PAST RECORD

Allegations have been made against the current head of judicial oversight of MI5, MI6 and GCHQ – Intelligence Services Commissioner Mark Waller, who was accused of colluding in torture efforts encouraged by the Secret Intelligence Services (MI6) and intelligence agencies in Pakistan. For the agencies to be subjected to effective scrutiny, those in oversight positions must not have been involved in activities that cast doubt on their ability to carry out such a job effectively.[16]

The principles of jus in bello tie into this. As with warfare, the primary aim of undertaking surveillance must be that of defeating the enemy. However, the enemy is frequently undefined and often described in broad and simplistic terms, such as ‘terror threats’ or ‘security threats’.[17] Any sensible analysis of terrorism must involve the realisation that non state-sponsored violence will always be a fixture of any society, and therefore seeking to eliminate all potential and existing threats is unfeasible. Thus for surveillance to be limited, it must be with the aim of targeting a particular threat as opposed to merely the nebulous, ill-defined or hypothetical.

MORE THAN HYPOTHESIS

This is combined with the need for a greater level of distinction than currently exists. Surveillance efforts must distinguish between the monitoring of ordinary civilians compared to those where there is reasonable suspicion of criminal wrong-doing. The mass capture of all the emails and social media messages of every citizen flouts this rule by a considerable margin, operating under the assumption that every individual is a potential criminal. Instead, methods for capturing metadata must be applied which hone in specifically on the data of those where there is already reasonable suspicion of criminal activity being planned or implemented.

Finally, there is the principle of proportionality in practice. Surveillance programmes must not result in undue damage being caused. The claim that no risk exists of data being abused because Britain and America are not despotic or dictatorial regimes is a logical fallacy; data in the possession of the intelligence services is dealt with secretively, and as a result there is little to eliminate the possibility of information considered private or sensitive by individual users from being mislaid or leaked. This must not be considered a possible sacrifice worth making, and instead must be regarded as an unacceptable level of potential risk.

Currently, there is much to suggest that online surveillance conducted by the state does not satisfactorily meet the requirements laid down by Just War theory. Many see the current status quo as excessive and overly-secretive, and lacking any kind of internal or external checks and balances. However, under the criteria outlined above, certain online surveillance techniques can be deployed in a restricted and monitored capacity, legitimised by the right authority when the national security needs are demonstrable.

Most importantly, surveillance must be undertaken with the belief that a peaceful situation is ultimately attainable.

Maddy Fry is a freelance journalist and researcher who has written on technology, politics and religion for the New Statesman, the Daily Telegraph and Time magazine, as well as appearing on Sky News and Channel 4. She previously worked at the religion and society think-tank Theos.

This article originally appeared in Third Way magazine

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