The US government’s recent embarrassment over revelations of its surveillance program by Edward Snowden, a former NSA contractor/CIA employee, and their subsequent frustration in trying to apprehend him, has led to all of the usual outcry from libertarians about government spying, invasion of privacy and so on. However, a further interesting question is whether such acts are a necessary part of the deliverance of security. Would, for example, private security agencies have the need to spy on people’s private communications and, if so, how would this be regulated in a free society?

Security, like any other good, is an end that consumes scarce resources and its provision must therefore be valued like any other. Because a state is as an institution that enforces a territorial monopoly of the provision of law, order and defence funded by compulsory levies (taxes), it needs to provide a blanket security service and need never worry about “customers” leaving it for a competing service. As a result it is cut off from any communication, through the profit and loss system, of whether it has correctly allocated resources efficiently to provide for security needs and so it, alone, needs to judge the urgency of a particular security threat. This would not be the case on the free market, however, as private, competing, security agencies would not be able to apportion more resources towards the production of security than its customers were willing to pay for. In times, therefore, of relatively light or transient threats and normal, one-off acts of crime by individuals then security will not be a high priority and intelligence, which is linked almost wholly to such crime would have little purpose as there would simply be no data to gather. Indeed this would normally be the case in a free society. Most “organised” crime consists of the underground provision of peaceful and voluntary services that the government has outlawed and “terrorist” threats are political backlashes against the government. Even if there was the threat of invasion of a free society by, say, a neighbouring state, this would be much harder for that state to accomplish when defence provision is scattered and heterogeneous rather than concentrated and homogenous in the form of the government’s army, navy and air force. The closest you might get to any kind of organisation in crime in a free society is various forms of human trafficking, such as paedophile rings and kidnap for forced labour. It is therefore very unlikely that there would be the need for systematic intelligence gathering in a world free of the state. However, for arguments sake, let’s say that there is a genuinely serious and imminent threat of organised crime which commands a pressing need for intelligence of this threat by a private security agency in order to defend its customers. What could it do?

A security agency could certainly not invade the servers and networks of private providers of communication services. It could, however, negotiate contracts to monitor information that passes over these networks, with the specific nature of such monitoring subject to the corresponding nature of the threat. But the major difference between this and between government intelligence gathering is that it could never be secret and, if it was, it would be unlikely to last for long. From the point of view of the security providers’ customers, in an environment where there is a genuine threat then such monitoring is likely to be a selling point; while it may not be advertised quite as explicitly as “we will read other people’s emails to keep you safe”, if people, on balance, estimate any threat as being worth the while of this kind of action then they will be eager to provide custom to those security services that can offer it. On the other hand, if a threat is deemed not to be quite so serious to the extent that customers either do not care if other people’s communications are monitored or they would actively leave for an alternative provider to avoid it, could a security firm carry on the practice in secret? The answer is almost certainly no because this would cause the firm to incur costs that customers are not willing to pay for. Hence it would have to raise its prices. Such a firm would therefore see its customer base shrink to the advantage of suppliers who do not incur these deadweight costs. The practice would therefore be self-liquidating at the point when threats are no longer deemed to be worthy of the expense of intelligence gathering.

Furthermore, the monitoring of communications would need to have the consent of the customers of telecoms and internet providers. Again, the permissibility of this would be judged by these customers in the light the urgency of a threat. In the absence of such threats providers that do not invade the privacy of communications would receive custom and those that do would not. Moreover, in this environment, people themselves may be unwilling to deal with parties whose communications were not filtered through a monitored channel. But these services would also be tailored to specific regions that may be under threat or levels of monitoring could be targeted at specific groups based on their vulnerability or their propensity to commit an atrocity. There would not be the blanket monitoring of absolutely everybody and the provision of the same service to everybody regardless of who they are and where they are.

Would consent make intelligence gathering useless? Not necessarily. Between themselves, of course, criminals can use channels that are not subject to monitoring. But when the fear of a threat is perceived to be high channels offering absolute privacy would be difficult to come by and it is arguably the case that government is much easier to circumvent than private agencies. However, all criminal organisations must at some point communicate with the outside world (for purposes of supply, for example) and these latter communications would be subject to monitoring. While not perfect, therefore, it would not be impossible to piece together the movements and intentions of organised criminals.

The above is just a basic outline of what might happen in a free society and no doubt many more considerations could be added. But it is worth emphasising again the main point – that most of the need for intelligence gathering is generated by the government’s own avoidable acts and so, why it could conceivably be accomplished in a free society, it would almost certainly be unnecessary. The proper way forward, then, to end the world of spying, surveillance and secrets is to decriminalise victimless crimes and to stop the government from invading and bombing other countries and nurturing blowback. And we have of course assumed above that government is genuinely trying to protect its citizens; of great import also is the very convincing argument that government merely invents and exaggerates bogeymen for the very purpose of intruding into people’s lives and we need to consider the extent to which surveillance is the end rather than the means.

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