Information & Communications Technology Law, 2014 Vol. 23, No. 3, 192–219, http://dx.doi.org/10.1080/13600834.2014.970375 The pendulum effect: comparisons between the Snowden revelations and the Church Committee. What are the potential implications for Europe? Maria Helen Murphy* Law Department, National University of Ireland, Maynooth, Ireland This article considers how the pendulum metaphor can be applied to shifts in popular opinion concerning the right to privacy. At times, the media portrays privacy as an individualistic right, serving at the behest of criminals and terrorists. Every so often, however, an event occurs that starkly reminds the public of the value of privacy. Public opinion drives debate and this debate often leads to legal reform. The Church Committee, formed in response to the Watergate scandal, is a classic example of the effect the exposure of abuse can have on the regulation of privacy. Over time, however, legislative gains in privacy protection have a tendency to erode. In addition, extreme events, such as the terrorist attacks of 9/11, can cause the pendulum to swing back to the opposite position. Following the exposure of mass surveillance practices by Edward Snowden, the world has, once again, been questioning government surveillance activities. This article seeks to consider the transatlantic impact of the National Security Agency revelations. Transparency is highlighted as a crucial regulating force on excessive government interference with privacy rights. Keywords: Snowden; surveillance; privacy; data retention; European Union Introduction The concept of a swinging pendulum frequently serves as a political metaphor, illustrat- ing oscillations from one policy position to another over time.1 The metaphor borrows from the scientific principle that the restoring force of gravity, combined with the mass of a pendulum, will cause it to swing back and forth indefinitely. In addition to being used to portray electoral swings,2 trends in criminal justice,3 and education Downloaded by [Maynooth University Library] at 08:41 24 October 2017 *Email: [email protected] 1See, for example, M Lebo and H Norpoth, ‘The PM and the Pendulum: Dynamic Forecasting of British Elections’ (2007) 37 BJ Pol S 71; S Ranchod-Nilsson, ‘Gender Politics and the Pendulum of Political and Social Transformation in Zimbabwe’ (2006) 32 JSAS 49; B Jackson, The Challenge of Domestic Intelligence in a Free Society: A Multidisciplinary Look at the Creation of a US Domestic Counterterrorism Intelligence Agency (Rand Corporation, 2009) 90, 112. 2M Harrop, ‘The Pendulum Swings: The British Election of 1997’ (1997) 32 Gov’t & Oppos 305; S Severinghaus, ‘Mongolia in 2000: The Pendulum Swings Again’ (2001) 41 Asian Surv 61; D Collier, ‘The Ideal Pendulum Swing: From Rhetoric to Reality’ (2008) 13 BJCL 175. 3G Miller, ‘Watching the Correctional Pendulum Swing’ (1993) 62 FBI Law Enforcement Bulletin 24; D Spader, ‘Megatrends in Criminal Justice Theory’ (1985–1986) 13 AJCL 157; D Collier, ‘The Ideal Pendulum Swing: From Rhetoric to Reality’ (2008) 13 BJCL 175; K Parker, ‘Coddling Not Allowed’ © 2014 Taylor & Francis Information & Communications Technology Law 193 reforms,4 the metaphor of the pendulum has been utilised by many to demonstrate how public opinion regarding the balance between security and surveillance has tended to see– saw at various points in history.5 The logic underlying this theory is that in times of crisis, the government may curtail civil liberties in order to protect national security. Etzioni has commented that once the threat has passed, the intrusive measures ‘can gradually be rolled back.’6 While this understanding of the balance between the powers of the State and the protection of civil liberties may place undue faith in the ability of societal forces to correct the excesses of its government systems over time, it can be useful to illustrate observable shifts in public opinion and subsequent developments in government policy. Due to the secrecy of surveillance systems, the public often only learns of the true nature of government activity following the actions of a whistle-blower, like Edward Snowden. Due to this information deficit, the pendulum is only prone to swing back in favour of greater protection of privacy rights once the relevant information enters the public domain. Often, the importance of privacy is weighed against the importance of national security. This balancing can place an undue burden on the right to privacy, as a threat to privacy appears remote in comparison to a threat to personal safety. Privacy, as a fundamental right, has faced criticisms of varying degrees of severity. At the more moderate end of the scale, Hixon has described privacy as being a right worth protecting, but not worth pro- tecting ‘on the grand scale that claims for privacy are pressed today.’7 More negatively, privacy has been described as a ‘cult’ that ‘rests on an individualist conception of society.’8 In popular discourse, privacy is often wholly identified as a benefit to the individ- ual, weighing against general social goods, such as security.9 Despite the vigorous protesta- tions of civil liberties organisations a frequently made argument is that privacy is a moribund right that people no longer need and is, in fact, an anachronistic value in modern life.10 Predictably, the argument goes, in the war on terror and organised crime, privacy is even less important. Popular culture is infected with an ‘us v. them’ mentality Chicago Tribune (Chicago, 24 November 1999) <articles.chicagotribune.com/1999–11-24/news/ 9911240048_1_discipline-psychotropic-greater-communication-and-education> accessed 10 October 2014. 4P Wolfe and L Poynor, ‘Politics and the Pendulum: An Alternative Understanding of the Case of Whole Language as Educational Innovation’ (2001) 30 Educational Researcher 15–20; C Mellon, ‘Technology and the Great Pendulum of Education’ (1999) 32 JRCE 28; D Coulby, R Cowen and C Jone, Education in Times of Transition (Psychology Press, 2000). 5D Clarke and E Neveleff, ‘Secrecy, Foreign Intelligence, and Civil Liberties: Has the Pendulum Downloaded by [Maynooth University Library] at 08:41 24 October 2017 Swung Too Far?’ (1984) 99 PSQ 493; P Pillar, ‘The Pendulum of Opinion on Security and Privacy’ The National Interest (11 June 2013) <www.brookings.edu/research/opinions/2013/06/09- security-privacy-surveillance-phone-internet-terrorism-pillar> accessed 10 October 2014; O Kerr, ‘Technology, Privacy, and the Courts: A Reply to Colb and Swire’ 102 Mich L Rev 933; R Matthew and G Shambaugh, ‘The Pendulum Effect: Explaining Shifts in the Democratic Response to Terrorism’ (2005) 5 Analyses of Social Issues and Public Policy 223; D Solove, ‘Data Mining and the Security-Liberty Debate’ (2008) 75 U Chi L Rev 343. 6A Etzioni, The Limits of Privacy 25 (Basic Books, 1999) 25; See D Solove, Nothing to Hide: The False Trade-off between Privacy and Security (Yale University Press, 2011) 55–56. 7G Laurie, Genetic Privacy: A Challenge to Medico-legal Norms (CUP, 2002) 47. R Hixson, Privacy in a Public Society (OUP, 1987) 4. 8H Arndt, ‘The Cult of Privacy’ (1949) 21 AQ 68, 70–71; S Benn, ‘Privacy, Freedom, and Respect for Persons’ in F Schoeman (ed), Philosophical Dimensions of Privacy (CUP, 1984) 303. 9See D Solove, Understanding Privacy (Harvard University Press, 2008) 10. 10J Rule, Privacy in Peril (OUP, 2007) xi. 194 M.H. Murphy where the idea of protecting privacy rights is viewed by many as abhorrent pandering to terrorists and criminals.11 Such complacency is occasionally checked, however. Often this task is performed by the press, such as when the News of the World phone hacking scandal was exposed.12 When reports emerged exposing the phone hacking of celebrities, politicians, and members of the Royal Family, there was mild public interest.13 When the recognisable and relatable figure of Millie Dowler and her family became part of the story, however, the increased level of outrage was palpable.14 Revelations like this make people stop and think, turn the intangible into the material and remind people that privacy is a right worth protecting. This article considers how non-voluntary transparency has influenced sur- veillance policy in the past by examining the aftermath of the Watergate scandal and the Bush administration warrantless wiretapping scandal. The Edward Snowden revelations have, once again, brought the question of privacy to the fore of public consciousness. By refusing to view this latest scandal in isolation, this article gains insight from previous experiences. This article considers the effect of the Snowden revelations on public opinion and assesses the implications of the disclosures from the European perspective. Transparency is highlighted as a crucial regulating force on excessive government interfer- ence with privacy rights. Watergate and the Church Committee During the Cold War, public anxiety was high and the threat posed by the Soviet Union was keenly felt. With the Cold War being waged through technological and political compe- tition, the importance of espionage and the fear of foreign spies rose.15 This environment enabled the rapid expansion of the powers and capabilities of government investigative agencies.16 In spite of the fact that public perception tends to associate the abuses exposed following the Watergate scandal solely with the Nixon administration, such a 11C Gearty, ‘Reflections on Civil Liberties in an Age of Counterterrorism’ (2003) 41 OHLJ 185, 187. 12The Guardian, Phone Hacking: