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National Security Needs, the Widespread Availability of Personally Identifiable Financial Information Puts Individuals at Risk for Fraud SECURITY and PRIVACY SECURITY and PRIVACY Global Standards for Ethical Identity Management in Contemporary Liberal Democratic States John Kleinig • Peter Mameli • Seumas Miller • Douglas Salane Adina Schwartz THE AUSTRALIAN NATIONAL UNIVERSITY E PRESS Centre for Applied Philosophy and Public Ethics An Australian Research Council Funded Special Research Centre Practical Ethics and Public Policy Monograph 2 Series Editor: Michael J. Selgelid E PRESS Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at http://epress.anu.edu.au National Library of Australia Cataloguing-in-Publication entry Title: Security and privacy : global standards for ethical identity management in contemporary liberal democratic states / John Kleinig ... [et al.] ISBN: 9781921862571 (pbk.) 9781921862588 (ebook) Notes: Includes bibliographical references. Subjects: Terrorism--Moral and ethical aspects. Transnational crime--Moral and ethical aspects. Terrorism--Political aspects. Transnational crime--Political aspects. Other Authors/Contributors: Kleinig, John, 1942- Dewey Number: 363.325 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design and layout by ANU E Press Printed by Griffin Press This edition © 2011 ANU E Press Contents Preface . vii Contributors . ix Acknowledgments . xi I . Crime Scenes and the Terroir of Terror . 1 II . Security and the Challenge to Liberal Values . 7 III . The Blessing and Bane of the Liberal Democratic Tradition . 11 IV . Divergent Formalities . 19 V . When the Rubber Hits the Road . 77 VI . Securitization Technologies . 89 VII . Surveillance Technologies and Economies . 129 VIII . The Underlying Values and their Alignment . 151 IX . The Complexities of Oversight and Accountability . 225 X . Recommendations . 241 Appendix: Security and Privacy Institutional Arrangements: Australia and India . 247 References . 263 v Preface This study is principally concerned with the ethical dimensions of identity management technology – electronic surveillance, the mining of personal data, and profiling – in the context of transnational crime and global terrorism. The ethical challenge at the heart of this study is to establish an acceptable and sustainable equilibrium between two central moral values in contemporary liberal democracies, namely, security and privacy. Both values are essential to individual liberty but they come into conflict in times when civil order is threatened, as has been the case from late in the twentieth century, with the advent of global terrorism and transnational crime. We seek to articulate legally sustainable, politically possible and technologically feasible global ethical standards1 for identity management technology and policies in liberal democracies in the contemporary global security context. Although the standards in question are to be understood as global ethical standards potentially to be adopted not only by the United States (US) but also by the European Union (EU), India, Australasia and other contemporary liberal democratic states, we take as our primary focus the tensions that have arisen between the US and the EU. This tension provides a good example of the kinds of challenges involved in developing global standards. It is exemplified by the 2006 disclosure concerning the US government’s access to SWIFT transactions and the controversy that has followed it, as well as the earlier and ongoing controversy over the 2004 US–EU Passenger Names Records (PNR) agreement. It also makes itself known in the ongoing debate over national identity cards. The first two conflicts make it clear that, however difficult it may be to develop global standards for the management of personal data, such standards are needed and that every effort should be made to develop them or at least to implement procedures for addressing conflicts among them. Naturally, authoritarian states do not share the liberal values underlying this project – values such as individual autonomy and privacy. Nevertheless, to the extent that such authoritarian states are evolving or are likely to evolve toward some form of liberal democracy, the results of this study will also be relevant to these states. Our purpose is to articulate standards and institutional initiatives that are sufficiently specific to determine – or at least substantially constrain – the requisite detailed security and privacy policies and prescriptions in national as well as international and transnational jurisdictions. 1 Gijs de Vries, “Terrorism, Islam and Democracy”, EurActiv.com, March 4, 2005, at: http://www.euractiv. com/en/security/gijs-vries-terrorism-islam-democracy/article-136245. vii Security and Privacy The project distinguishes itself from other work in this field in two major respects. Firstly, the multi-disciplinary team of experts brought together for this project has enabled the integration of: (a) ethical principles, (b) national and international legal considerations, (c) effective law enforcement practices, (d) oversight and accountability concerns and (e) knowledge of existing and emerging technology, such as database mining and knowledge discovery technology, in the development of a framework of determinate and feasible ethical standards for identity management technology in the global security context. Secondly, the study has drawn on an international team of experts and focuses on common international standards and solutions, as befits the trans-jurisdictional and transnational nature of the problems to be addressed. Specifically, the project involves not only US personnel and institutions but also EU, Indian, and Australasian expertise. viii Contributors John Kleinig is Professor of Philosophy in the Department of Criminal Justice at John Jay College of Criminal Justice, and teaches in the PhD Programs in Philosophy and Criminal Justice at the Graduate Center, City University of New York. He is also Professorial Fellow in Criminal Justice Ethics at the Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Canberra. Peter Mameli is Associate Professor in the Department of Public Management at John College of Criminal Justice and is part of the PhD Program in Criminal Justice at the Graduate Center, CUNY. Seumas Miller is Foundation Director for the Centre for Applied Philosophy and Public Ethics (an Australian Research Council Special Research Centre) at the Australian National University and Charles Sturt University, and a senior research fellow in the Centre for Ethics and Technology at Delft University of Technology, Netherlands. Douglas Salane is Associate Professor in the Department of Mathematics and Computer Science and in the graduate program in Forensic Computing at John Jay College of Criminal Justice. He is also Director of the Center for Cybercrime Studies. Adina Schwartz is Professor of Law in the Department of Law, Police Science, and Criminal Justice Administration at John Jay College of Criminal Justice and the Masters Program in Forensic Computing at John Jay College of Criminal Justice. She is also the Assistant Director of the Center for Cybercrime Studies. ix Acknowledgments The initial impetus for this study was a US National Science Foundation grant (#0619226) awarded in 2006 to several researchers at John Jay College of Criminal Justice, some of whom were also associated with the Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Canberra. We are particularly appreciative of the support of John Jay College and CAPPE, and for the assistance at different stages of this project of Nick Evans, Jamie Levy, Richard Lovely, Richard Lucas, Vincent Maldonado and Vincenzo Sainato. Richard Lucas was particularly helpful in reviewing and updating the technical data. Until his untimely death, one of our original grant members, Brian O’Connell, from Central Connecticut State University, brought to the early stages of this project not only his enthusiasm but also his combined expertise in philosophy, law, and computing. Our loss, along with that of others, was great. In preparing this material for publication, we are grateful for the extensive comments of two reviewers, including Leslie Francis of the University of Utah. James Spence provided valuable editorial assistance. During the course of this study, several items have been prepared for other venues, including: John Kleinig “Humiliation, Degradation, and Moral Capacity: A Response to Hörnle and Kremnitzer”, Israel Law Review 44; and John Kleinig, “Liberty and Security in an Era of Terrorism”, in Criminologists on Terrorism and Homeland Security, ed. Brian Forst, Jack Greene & James Lynch (NY: Cambridge University Press, 2011), ch. 15. Acknowledgment is also made of permission to use material first published in Peter Mameli, “Tracking the Beast: Techno-Ethics Boards and Government Surveillance Programs”, Critical Issues in Justice and Politics, 1, no. 1 (2008): 31–56, available at: http://www.suu.edu/hss/polscj/CIJP.htm. Professor Mameli's research benefitted from time spent as a visiting scholar at the National Policing Improvement Agency, Bramshill, in the United Kingdom during 2006. In addition, elements of his work were originally presented at the 2006 “Soft Law, Soft Regulation?” conference of Anglia Ruskin University. We also acknowledge
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