Abstract
This article analyses proportionality as a potential element of a theory of morally justified surveillance, and sets out a teleological account. It draws on conceptions in criminal justice ethics and just war theory, defines teleological proportionality in the context of surveillance, and sketches some of the central values likely to go into the consideration. It then explores some of the ways in which deontologists might want to modify the account. Specifically, it reviews the idea that the set of goods should be restricted, that proportionality should require a surplus of good, and that there should be both an upper and a lower-bound on the badness of proportional surveillance. Each of these ideas is shown to raise severe difficulties. Finally, the article considers whether to adopt a narrow or a wide proportionality condition, reviews an argument for the former, and concludes in favour of the latter.
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Notes
Cf. Ross Bellaby: ‘“Surveillance” can cover a wide range of activities from CCTV cameras and “covert surveillance” to dataveillance and datamining. Who the individual “is”, where s/he is going, with whom s/he is associating or what s/he is doing all become the concern of the watchful eye’ (Bellaby 2012, p. 105). And Kevin Macnish: ‘Surveillance involves paying close and sustained attention to another person. It is distinct from casual yet focused people-watching, such as might occur at a pavement cafe, to the extent that it is sustained over time. Furthermore the design is not to pay attention to just anyone, but to pay attention to some entity (a person or group) in particular and for a particular reason. Nor does surveillance have to involve watching. It may also involve listening, as when a telephone conversation is bugged, or even smelling, as in the case of dogs trained to discover drugs, or hardware which is able to discover explosives at a distance’ (Macnish 2011). I will not defend my definition here, partly for considerations of space, and partly because I pursue that task in a different article (Thomsen 2019), but primarily because it is unlikely to be controversial in a way that affects the arguments of this article.
Notable contributions to that literature include: (Austin 2003; Bellaby 2012; Doyle 2009; Hadjimatheou 2016; Macnish 2014, 2015, 2016, 2017; McCloskey 1980; Nissenbaum 1998; Parent 1983; Powers 1996; Rachels 1975a, b; Rubel 2007, 2011; Ryberg 2007; Scanlon 1975; Solove 2002, 2006, 2007; Tavani 2007; Tavani and Moor 2001; Thomson 1975; Von Hirsch 2000).
Cf. Seth Lazar: ‘Defensive harm is proportionate when (and only when) the harm inflicted is an appropriate fit for the threat thereby averted’ (Lazar 2012, p. 5). Thomas Hurka: ‘Despite their differences, the various proportionality conditions—ad bellum and in bello, simple and comparative, objective and subjective—all say a war or act in war is wrong if the relevant harm it will cause is out of proportion to its relevant good’ (Hurka 2005, p. 38). Jeff McMahan: ‘[Jus ad bellum] proportionality holds that the resort to war is impermissible if the bad effects of the war would outweigh the good’ (McMahan 2009, p. 18).
Cf. Andrew von Hirsch and Andrew Ashworth: ‘…the principle of proportionality [requires] the severity of the penalty to be proportionate to the seriousness of the criminal conduct of which the defendant has been convicted’ (Von Hirsch and Ashworth 2005, pp. 131–132). Ashworth: ‘Cardinal proportionality […] requires that the penalty should not be out of proportion to the gravity of the crime involved’ (Ashworth 2005, pp. 84–85). Anthony Duff: ‘Any normative theory of punishment includes some principle of proportionality, which requires that punishment must be “proportionate” to what justifies it’ (Duff 2001, p. 132). Von Hirsch: ‘The primary basis for deciding quanta of punishments, under [contemporary desert theory], is the principle of proportionality or “commensurate deserts”, requiring the severity of the penalty to be proportionate to the gravity of the defendant’s criminal conduct’ (von Hirsch 2009, p. 118).
The so-called ‘problem of punishment’ (Boonin 2008).
I deliberately avoid use of the phrasing that the crime deserves a certain severity of sanction in response. My broader formulation above is intended to capture the whole set of deontological theories that subscribe to a principle of proportionality, not merely the subset of retributivist theories that take the normative reasons at stake to be grounded in desert. For similar reasons I avoid the theoretically loaded term ‘punishment’ in favour of the more inclusive ‘sanction’.
Just war theory often employs a similar restriction in the shape of ‘non-combatant immunity’ but accepts that there can be cases of permissibly harming non-combatants, subject to the condition of proportionality. This is uncontroversial when such harm is an unintended side effect of an action, but many theorists accept that in extreme conditions even intended harm to innocents may be permissible. Deontological criminal justice ethics could perhaps avail itself of the considerations employed in just war theory to explain the potential permissibility of harming bystanders to punishment, e.g. the offender’s family, who suffer through shaming and deprivation of access to a partner/parent/etc. In that context, prospective proportionality would presumably become pertinent. It is also possible, of course, to apply the just war theory framework including the self-defense justification to criminal justice ethics more broadly (see Tadros 2011).
By ‘goods’ and ‘bads’ I intend to encompass the morally valuable and morally disvaluable outcomes of the act, respectively. We might speak more familiarly of good and bad consequences, or costs and benefits, but I prefer to avoid these terms to decrease the risk of the reader mistakenly inferring that the teleological account of proportionality rests upon or entails consequentialism.
Solove intends for this list to illustrate his point that there is no distinctive bad of losing privacy, but rather a cluster of problems that emerge in the context of privacy-losses. There are two ways of reading this claim. The first is that losing privacy is not intrinsically bad but can be instrumentally bad in a number of ways. I believe this is Solove’s intended reading, and it seems to me a very plausible claim. The second is the stronger claim that there is nothing that unites the various ways in which losing privacy can be instrumentally bad. This is too strong. The various ways in which losing privacy might be bad can be instrumentally bad for ultimately the same reason, e.g. because they lead to decreases of human wellbeing.
Macnish argues that the harm of surveillance is generally tied to the degree to which it is intrusive. As a very general observation this sounds plausible, but if the concept of intrusion is to have the kind of explanatory power that would allow it to support an account of the badness of surveillance, then we need a more sophisticated and rigorous understanding of it than the common-sense conception. Unfortunately, despite exploring several examples and dimensions of intrusion, Macnish does not ultimately clarify what this sense of intrusion might be.
Presumably, time, effort and material resources are only instrumentally valuable, so that the disvalue of investing them in carrying out surveillance is the opportunity cost of thereby declining to perform alternative valuable actions. Whether to count them here therefore depends on what role, if any, opportunity costs ought to play in proportionality. I develop these considerations below.
Macnish’s concerns with social sorting, distribution of costs, and human errors or abuse of powers belong in this category, as do Solove’s with insecurity, disclosure, exposure, and blackmail.
Macnish’s concerns with chilling effects, social fatalism, behavioural uniformity, fear of control and loss of trust belong in this category.
This approach could be compatible with the account I have set out if one adopted a suitably unorthodox axiology. Such an axiology strikes me as wildly implausible, however. Hence the more charitable interpretation is the approach that takes these values as pertaining to proportionality specifically.
On teleological accounts of desert-adjusted weights for wellbeing see (Feldman 1995a, b). One might also consider as starting points David Rodin’s account of 14 factors that affect proportionality in the context of just war, and Susanne Uniacke’s detailed discussion of the effect of liability to harm on proportionality (Rodin 2011, pp. 80–81; Uniacke 2011). For a critical overview of some of the challenges desert-adjusting wellbeing encounters, including centrally the problem that future decreases in wellbeing can ground desert-based reasons to do wrong, so as to decrease the moral disvalue of the future decreases, see (Ryberg 2011).
There are familiar difficulties with the conceptual and moral differences between action and inaction, widely explored in the debate on the doctrine of doing and allowing (DDA). I shall attempt to set these more fundamental difficulties aside here, since making advances across the deeply dug trenches of that debate is clearly beyond the scope of this article, and it seems to me that my argument here does not ultimately hinge on what view one takes of the distinction. Some might further be inclined to accept the idea of a counterfactual baseline for proportionality along the lines above, but to impose a side-constraint based on the DDA as an additional condition of permissible surveillance. The DDA faces a long series of well-known objections, which seem to me very persuasive (see e.g. McMahan 1993; Norcross 2003; Rachels 1975a, b; although cf. Woollard 2015; Woollard 2016 provides an excellent overview). In light of my doubts about the DDA and the fact that such a condition is in any case a separate issue, I shall also leave the task of developing an account of permissible surveillance that includes a DDA-based condition to more sympathetic thinkers.
Indeed, Macnish deserves credit both for introducing the idea of applying concepts developed in just war theory to the context of surveillance, and for, in doing so, substantially advancing the debate on the ethics of surveillance in terms of theoretical sophistication. Though his work provides a convenient foil on which I focus my criticism, I do not mean thereby to detract from that achievement.
Note that the distinction at stake here is different from and unrelated to the doing-allowing distinction, and that the objections at stake are not at odds with the doing-allowing doctrine. This follows directly from the fact that my account means to include the possibility of φ’ing being an act that allows an already initiated form of surveillance to continue. But it is also worth noting that the idea at stake here is that certain goods brought about by an act of surveillance should not affect the proportionality of that act, whereas the doing-allowing doctrine holds (roughly) that the goods and bads resulting from an allowing grounds weaker reasons than the goods and bads resulting from a doing.
Macnish makes a related point, that Hurka wants to avoid the situation where a small benefit to a sufficiently great number of people can justify imposing a great cost on a few (Macnish 2015, p. 234). However, holding some benefits to be peripheral will do little to avoid this situation, if, as appears to be the case, a benefit’s being peripheral depends on the nature of the benefit, since the situation emerges due to aggregation of benefits of different size. Furthermore, this is the familiar ‘one million headaches’-objection to consequentialism, and is subject to the standard responses to that objection (e.g. Norcross 1997).
Does the fact that the voyeurism occurs in public invalidate Estranged? It seems to me strange to say, since it is widely held that we do have claims to privacy in public (cf. Ryberg 2007).
I take it to be necessary but uncontroversial that the acts of surveillance become uncertain by being within the zone of vagueness. If we could assign probabilities to the act bringing about good equal to or greater than bad, then the presumption against bad does not apply, and a probabilistic variant of the presumption is implausibly strong, but then such probabilities are conventionally unassignable if there is irreducible vagueness.
As is now widely recognised, the literature is best understood as containing a family of precautionary principles, rather than a precautionary principle. Apart from its moral interpretation, which seems to me most pertinent here, we should also distinguish between decision-making, epistemic and pragmatic variants, which differ from the version I set out above in that they take the principle to be a decision-rule, a belief-forming principle, or a rule-of-thumb respectively. See (Gardiner 2006; Hartzell-Nichols 2013; Sandin and Peterson 2019). It does not seem to me, however, that my arguments in the following hinge on which precautionary principle is at stake. As such, we can set the differences aside.
Could we formulate a version of the sufficiency-relation that, unlike SG-proportionality, is a proper member of the family of precautionary principles? It seems we could. However, it would restrict proportionality constraints to the narrow set of cases that feature uncertain and strong bads. We presumably want proportionality to apply much more broadly. Friends of precaution are likely better off by assuming that it is a separate and supplementary constraint on permissible action.
Very broadly, the challenge for precautionary principles is to formulate a version of the principle that is at once strong enough to be non-trivial, and weak enough to not have (very) implausible implications by condemning vast swathes of intuitively permissible human behaviour. See (Gardiner 2006; Harris and Holm 2002; Peterson 2006).
Challenging Macnish’s argument for SG-proportionality does not, of course, constitute an independent argument against SG-proportionality. I do not intend to show that SG-proportionality is false. The claim I defend in this section is merely that Macnish has not given us good reasons to think that it is true.
This is another juncture in the argument, at which the doing-allowing doctrine might be thought to be relevant. I think that it is not, whatever one thinks of the doctrine’s merits, for reasons parallel to those I mentioned in the context of restricting the goods above (see footnote 20).
Assuming, plausibly I think, diminishing marginal goods from surveillance, and that at least some marginal bads are constant or even increasing.
Unless, that is, one is a consequentialist, in which case the balance of telic reasons determine a uniquely permissible action set, in a way that is structurally similar to imposing an upper and lower boundary. But this is a rather different story, which includes opportunity costs (i.e. evaluates a wider set of potential actions), applies to permissibility tout court rather than just proportionality, and is in any case not what Macnish and deontologists more broadly might want.
Notoriously, Immanuel Kant defended roughly this view, when he claimed that even the members of a society that had decided voluntarily to disband were under a stringent duty to first impose full punishment on convicted offenders (Kant 1996). Contemporary retributivists often explicitly distance themselves from Kant on this point.
This point may be so blindingly obvious that the example strikes the reader as unrealistic—surely the police would pursue the superior course of action rather than waste time petitioning the court for permission to conduct more widespread but no more effective surveillance? In response I readily accept that this is the case. The example is meant only as illustration, and I do not mean to disparage the judgement of real-life police officers. However, in a philosophical literature full of creatively murderous doctors, teleportation devices, and bizarre trolley accidents, I think begging the reader’s indulgence in suspending disbelief on this point is reasonably modest.
The astute reader may have noticed that Lazar’s conception is both subjectivist and probabilist. Translated to its factualist version, the conception would be: ‘Defensive harm H is necessary to avert unjustified threat T if an only if there is no less harmful alternative, such that the marginal morally weighted harm in H compared with that in the alternative is not justified by a countervailing marginal reduction in harm to the prospective victims of T’. As before, I attempt in the following to remain neutral between factualism and the alternatives.
Is this an overly consequentialist reading of necessity? No. Necessity remains a different condition because it restricts its consideration to the bringing about of a particular type of good, rather than aggregative goods simpliciter. That is, it considers opportunity costs, but restricts the range of opportunity costs taken into consideration. Whether this is plausible is a different matter. Kieran Oberman argues, persuasively to my mind, that just war theorists have conventionally ruled out far too much, and that as a result waging war will often be impermissible simply because alternative uses of the resources would do far more good, e.g. by alleviating global poverty (Oberman 2019).
As Macnish notes, Thomas Hurka makes a similar argument, albeit in the opposite direction (Macnish 2015, pp. 532–533). Hurka writes: ‘[The proportionality] condition must not be read literally, but must assess the alternatives to war in the same way as it does war: for the relevant good they may produce, their probability of producing it, and any costs that will result if the alternatives are tried and fail, such as making an eventual war more bloody. But then the last resort condition is in effect a comparative version of the initial, simple proportionality condition. For war and each of its alternatives it does a proportionality calculation, identifying the relevant goods and evils it will produce compared to a baseline of doing nothing, or continuing to act as one would have had there been no just cause. This yields the net good or bad effects of each, and it then says war is permitted only if its net outcome is better than those of all alternatives’ (Hurka 2005, pp. 37–38). McMahan too, although he considers them separate conditions, recognises that proportionality and necessity are connected: ‘[T]he requirements of minimal force and narrow proportionality do begin to blur together when considerations of probability and risk arise, as they usually do in conditions of war’ (McMahan 2009, p. 23).
If this strikes the reader as unintuitive, then simply scale the harms involved, e.g. a bruised wrist, instead of a broken one. Lazar’s example does not hinge on the specific amounts of harm involved, but on the ordinal ranking between them.
The doing-allowing distinction may also affect intuitions here. I assume that it should not since it is not a difference upon which Lazar’s argument rests. He would presumably want to treat as equal for the purposes of assessing proportionality scenarios in which we reverse the outcomes attached to the actions, so that e.g. lifting your foot leads to death and resting your foot to hospitalisation. As such, we should attempt to set aside any intuitions about the difference between doing and allowing.
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Acknowledgements
I have presented drafts of this paper at a 2018 Roskilde University Moral Philosophy seminar and a 2018 Aalborg University Centre for Philosophy and Public Policy seminar. I am grateful for valuable comments on these occasions to Andreas Albertsen, Jens Damgaard Thaysen, Sebastian Jon Holmen, Rune Klingenberg Hansen, Carl Knight, Kristian Kragh, Kasper Lippert-Rasmussen, Sune Lægaard, Ditte Marie Munch-Jurisic, Jesper Ryberg, Thomas Søbirk Petersen, Jakob Thrane Mainz, Nikolas Vrousalis, and Søren Sofus Wichman,. I also owe thanks for very thorough and helpful comments to two anonymous reviewers for the journal, as well as the assigned editor, Göran Duus-Otterström. Finally, this article was originally intended for a special issue on proportionality in surveillance. I owe thanks to Kira Vrist Rønn for organising that issue and inviting me to contribute.
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Thomsen, F.K. The Teleological Account of Proportional Surveillance. Res Publica 26, 373–401 (2020). https://doi.org/10.1007/s11158-020-09451-7
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DOI: https://doi.org/10.1007/s11158-020-09451-7