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The first approach – criticizing the trade-off within the trade-off – usually covers attempts to show how the balancing paradigm relativises the importance of privacy compared to security. Such attempts make us feel that taking a stand for the sake of privacy reflects egoism and selfishness opposed to the noble objective of the public good. Moore13 challenges three rival arguments undermining the importance of privacy, all of which support security when balancing comes about. The first argument, ‘just trust us,’ tries to convince us about letting those exercising public power decide on how to strike the balance. The second, ‘nothing to hide’, as referred to by Moore, claims that only those who are engaged in immoral and illegal activities should worry about being monitored; and finally ‘security trumps’ holds that security interests are weightier than privacy claims simply by their character. By presenting historical examples and experiences of the abuses related to, for example, the USA Patriot Act, Moore concludes that we have no reason to trust the decision makers, claiming that states would definitely not crave the blind trust of citizens in their surveillance politics if the decision makers really would have ‘nothing to hide’.14 As Moore is not a constitutional lawyer, it would be unfair to criticise him for the lack of arguments rooted deeply in constitutional law; however, he definitely would not argue if we say that trust in the state is completely alien from the essential nature of protecting fundamental rights. Fundamental rights – ultimately and using all means – are rights which have to be protected from the state, even if the protection is provided by the state itself. Later on, Moore makes a clear distinction between sensitive personal information and information which points towards criminal activity, and claims that sexual or medical history, for example, are simply out of the domain in which others might have right to access information.15 As an illustration of how the two different arguments are blended into each other, Moore’s objective is to ‘strike an appropriate balance’16 between privacy and security, which he desires to provide by introducing new safeguards, boosting the accountability of the surveillance power. In his struggle to reach the equilibrium, he argues that legal guarantees may promote privacy and security simultaneously, without realising that this means, of necessity, that privacy and security are certainly not positioned on the opposite sides of the seesaw. Referring back to the presentation cited in the introduction of this paper, Greenwald points out that even people who say that they have nothing to hide put passwords on their email accounts and locks on their bathroom doors, proving with their actions that, in reality, they instinctively understand the primal importance of privacy. Greenwald stresses that when we are being monitored our behaviour changes dramatically. In this sense, it seems that surveillance is not only capable of revealing past actions we would like to hide, but also deters
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Adam D. Moore, ‘Privacy, security, and government surveillance: Wikileaks and the new accountability’ (2011) 25 (2) Public Affairs Quarterly 141–156. Moore (n 13) 142–145. Moore (n 13) 146. Moore (n 13) 148.
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