Munk Debate: Is state surveillance a legitimate defence of our freedoms?

Alan Dershowitz : No state has ever survived without some surveillance, and no state deserves to survive if it has too much surveillance, particularly of its own citizens. A balance must be struck, but that balance cannot eliminate the power of the government to obtain information necessary for the defense of our freedoms.

It is important to distinguish among different types of surveillance. There is a considerable difference, for example, between street cameras that can observe the external movements of people in public places, and hidden microphones that can hear every word spoken in the bedroom. There is also a considerable difference between surveilling our own private citizens and listening in on foreign leaders who are probably trying to listen in on our leaders. To fail to base our policies on these and other important differences is to fail in the responsibility of governance. Matters of degree matter. And differences in degree can differentiate pragmatic democracies from self-serving tyrannies.

Motives matter too, though they are often difficult to discern and are frequently mixed. Politics also matter, though we are loathing to base principled decisions on ideological considerations. But many who supported the surveillance conducted by the FBI against the Ku Klux Klan and other violent racist groups during the U.S. civil rights movement opposed these same surveillance techniques when they were used against radical Black Panthers. Privacy for me, but not for thee is as common as it is cynically self-serving.

Our reason for increased concern over surveillance is the ever-increasing technological capacity to intrude. There is virtually nothing that is immune from the pervasive eyes, ears and even noses of the new generation of Big Brothers, Sisters, Uncles and Aunts. Satellites, drones, internet snooping and other techniques make us expect less privacy than did prior generations that had only the eavesdropper — literally the person hiding near the eves of the home — to worry about. In the U.S., because our constitutional rights under the 4th Amendment depend on “reasonable expectations of privacy,” our rights are contracting as our expectations contract. It’s a dangerous cycle.

But the most dangerous approach to our liberties is the all-or-nothing one proposed by radical opponents of all governmental surveillance. Those who oppose all surveillance are as dangerous to our liberties as those who uncritically support all surveillance. We need to know what harms our enemies—external and internal—are planning in order to prevent them from carrying them out. But we also need to impose constraints on those who know no limits on our power to obtain preventive intelligence. That’s where process comes into play.

We need far more demanding processes and controls over the use of surveillance both by government and private agencies. A heavy burden must be placed on those who would intrude on our privacy, but that burden must be realistically designed to strike a proper balance between two equally legitimate but competing values: the need for our government to know what our enemies are planning; and the need to protect our privacy from those who place too high a value on security and too low a value on privacy. It is possible to strike such a balance and that is where our efforts should be directed.

Alexis Ohanian : We Americans and Canadians have many shared values - though we may never settle who’s really to blame for Justin Bieber - an inalienable right to privacy is something secured in our Bill of Rights and Canadian Charter of Rights and Freedoms, respectively. Our democratic societies balance this right to privacy with security, but the technological leap we’ve made in the last decade that has made possible my career as a tech entrepreneur and investor has also enabled a surveillance state that is simply unacceptable.

The NSA has immense capabilities now and the only thing controlling it is secret law. There’s precedent of far less efficient surveillance technology being abused - even Dr. Martin Luther King and many more U.S. citizens involved in the civil rights and anti-war movements were surveilled. Democracy needs sunlight to thrive.

Our reputation has attracted the world’s best and brightest, as well as their money, for our highly-regarded global tech industry, but now Forrester estimates U.S. companies alone stand to lose $180-billion to non-U.S. cloud providers. The NSA’s insatiable appetite for data and mass surveillance has polluted the network. We’re all connected online but now the very infrastructure of the Internet is no longer healthy because of our brazenness.

From a technological standpoint, the World Wide Web works best when it’s “world wide,” and yet we’re faced with countries like Brazil and Germany now discussing balkanizing the Internet to guard against intrusion. Steve Huffman and I can’t possibly start reddit (a site that now is one of the most popular in the world with 150 million visitors a month, 42 per cent of whom are non-US) and expect it to become a truly global platform without every potential customer having both access and trust in our servers.

We're not just talking about law, we're talking about keeping technology insecure so that governments can do mass surveillance. That has a huge impact on user trust, policy debates about privacy, data protection, data localization, and gives comfort to oppressive governments that want to surveil the Internet. This is important, because what we’re doing in the name of counterterrorism is actually undermining security elsewhere - finding security flaws and leaving them for anyone to exploit later is not sound policy.

A rising tide really does lift all boats - or in this case, lock all doors - when it comes to online security.

Speaking of which, that word, security, means different things to my opponents. I’m not talking about trading security for privacy, I’m talking about trading one kind of security for another kind of security. First, these tools aren't just being used for counter-terrorism. Second, the things done in the name of counter-terrorism are hurting other kinds of security.

I was lucky enough to get a 33.6 modem in my home while I was still in grade school. It changed my life. Today I’m a serial tech entrepreneur and an investor in over 100 startups thanks to the open Internet. I’ve built and backed international corporations run from laptops because the greatest privilege of entrepreneurship in countries like the U.S. and Canada is the benefit that comes from the values of our free societies.

They must be defended, but thoughtfully, because we need to lead the world by example when it comes to ensuring the Internet -- a fundamentally democratic global platform -- embodies all the values we as democracies hold so dear and mass surveillance undermines the very security it purports to protect.