A major ethical challenge for our times. There can be little doubt that surveillance is a major ethical challenge for our times, especially with the onset of the internet. Much of the current concern focuses on the potential of governments to peruse the contents of emails from individuals, most often under the guise of protecting national security. Email communication is certainly convenient for individuals, and has now all but replaced traditional postal communication, but the ease by which it is possible to intercept emails raises important questions of privacy and democratic rights.

Arguably, the most powerful critique of the surveillance society comes from George Orwell’s famous dystopian novel Nineteen Eighty-Four (Secker & Warburg, 1949). Within the Orwellian society, every move, and indeed every thought of the hero, Winston Smith, is monitored by the all-seeing government, namely, Big Brother. The pervasive power of the surveillance society is summed up by the phrase “Big Brother is watching”. The thrust of Orwell’s critique, however, is against the power of governments, and particularly totalitarian ones.

Whilst surveillance is usually thought of in terms of governments, it is equally true that organisations, that is, institutions and corporations, are now able to engage in this practice. Indeed the fact that surveillance is thought of as a governmental problem can blind us as to the involvement of institutions and corporations in surveillance. And the technology of email interception means that this practice is relatively easy - all that is needed is for an organisation to identify a specific email address of interest, and then to institute an email intercept.

What is wrong with email interception by organisations? I want to outline here some of the concerns with this practice.

At the outset, it is difficult to deny that email interception constitutes a general breach of privacy. If a person sends a communication to another individual within an organisation, then the sender is reasonably entitled to expect that the email will go to the intended recipient. By way of analogy, if a person posts a traditional letter to another person within an organisation, then the sender has a reasonable expectation that the letter will go to the intended recipient, without the envelope being steamed open and read by another person within the organisation.

I would also argue that email interception also constitutes a breach of power, the exercise of which is only now possible through the technology of email communication. How email interception generally works within organisations is that the organisation decides it wants to monitor emails from a particular person, and emails from that person are diverted to a specific administrative section within that organisation. That administrative section or person then peruses the email, noting any information, which may be useful, and then decides whether to on-forward the email to the intended recipient.

The unreasonableness of email interception can again be readily illustrated through thinking of traditional postal communication. It would clearly be unacceptable if a designated person within an organisation were to engage in the practice of steaming open letters addressed to individual persons within the organisation, perusing and noting the contents, and then that person within the organisation making a decision as to whether to on-forward the letter to the intended recipient.

The interception of emails within the organisation usually involves an element of secrecy, that is, the sender of an email will not know that his/her emails are being intercepted and monitored. It is likely that email interception will eventually become known, for instance, when the sender realises that specific intended recipients are not receiving emails and when the sender realises this is happening on a regular basis. However, exactly what is happening may not be immediately apparent.

Once the practice of email interception becomes known to the person whose emails are being intercepted, then it is difficult not to see this as an action which will normally discourage free and open communication within the organisation. In other words, if a person knows that his or her emails are being monitored, then the person will be very circumspect in what he/she says.

Indeed, the interception and monitoring of emails runs counter to what we can reasonably expect in an open and democratic society. In totalitarian societies, one will be understandably very careful about what one says or writes, as words will be monitored. So too within an organisation, where emails are being monitored, an individual will be understandably very circumspect in what he/she writes in emails and the opinions he/she expresses. This dampening of free expression of opinion runs contrary to the ideal of a democratic and open society.

A further practical consideration is that email interception may well involve the interception of communication, which ought properly to be confidential, such as communication between an individual and fellow members of a trade union, regarding industrial matters. Or indeed the reporting of corrupt conduct to a designated investigator within an organisation. As a matter of principle, such communications ought to remain private and confidential.

Finally, email interception poses problems for the maintenance of integrity within organisations. It is very difficult for individuals within an organisation to discuss instances of maladministration or corrupt conduct with other members within the organisation, if such emails discussions are being monitored. The monitoring of such discussions may provide advance warning of disclosure of wrongdoing, and thus an opportunity for those in authority within an organisation to cover-up the wrongdoing, as well as an opportunity for the organisation to engage in reprisal action against the individual disclosing the wrongdoing.

Having said all of the above, it is important to concede that privacy is not an absolute right, and privacy may be arguably breached if genuinely and unavoidably necessary. This is implied in Article 12 of the Universal Declaration of Human Rights, which stipulates “no one shall be subjected to arbitrary interference with [his/her] privacy …. or correspondence”. The use of the word “arbitrary” implies that there may be times when such interference may be reasonable and necessary. Genuine national security concerns are perhaps the most often cited examples of where breach of privacy is deemed necessary.

However, it would be doubtful whether national security concerns could be claimed by an organisation. Further, it is incumbent upon institutions and corporations to give reasons for any breach of privacy, such as interception of emails. It is not acceptable that an institution or corporation merely wants to monitor what an individual is communicating to others or what he/she is thinking, or that the individual is perceived of as a potential threat to the institution or corporation. There needs to be a specific and substantiated reason for the breach of privacy.

We normally think of ethical obligations being incumbent upon individuals. However, there is also arguably an ethical obligation upon institutions and corporations. Clearly surveillance is a major issue of ethical concern, and I would suggest that the role of organisations, that is, institutions and corporations, in surveillance, ought to be an area where there needs to be much further debate.

Dr James Page Adjunct Associate Professor School of Humanities University of New England

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