Balancing National Security and Privacy Rights to Privacy and the Rule of Law in Democratic Societies a Comparative Analysis

One of the most compelling challenges facing democratic societies at present is that of achieving the appropriate balance between national security considerations and citizens' rights to privacy in cyberspace. The challenge is an old-new one. Calibrating the necessary security-privacy balance was also an ongoing challenge in the pre-internet era, as the principle of individual privacy was weighed on an ongoing basis against the security priorities of government agencies in a variety of contexts. Specifically, the traditional, pre-cyberspace categories of privacy addressed three principles: (1) limiting government surveillance of citizens and use of data about them, (2) restricting access to certain types of data, such as personal data, and (3) limiting entry into places deemed private. These principles address the challenges of privacy protection in cyberspace as well, but must now be applied in the context of state and private activity in cyberspace – in circumstances that are unfamiliar and unanticipated. Two key events that have so far sharpened governments’ awareness of what is at stake in terms of national security, and the extent to which their data gathering is a two-edged sword, are the release of sensitive government data by Assange in 2010 and by Snowden in 2013.

The “choices as a society” between security and civil liberties are the focus of this interdisciplinary research. On the one hand, national security considerations are crucial to the physical survival, the rule of law and the social integrity of modern democracies. On the other, the widespread violation of personal and institutional privacy on the part of security organizations such as that carried out by the US’ NSA and other national security bodies in Western democracies, through their past monitoring of private communications is intolerable to many citizens in these same democracies.

Analysis of the legal frameworks in place is not sufficient to give a full picture of the current dilemmas around the national security- privacy tensions in contemporary democracies, although the legal regimes will serve to anchor the overall analysis. The interdisciplinary nature of the research compels investigation of additional elements: public policy approaches, the definitions of “data” and examination of its attributes and their ramifications, and extra-legal approaches to the concept of individual privacy in contemporary democracies.

The exploratory nature of the research at this point in time is emphasized, as is the aim of informing the professional debate in Israel about this crucial cybersecurity issue. The study will explore four national models of the national security – privacy balance (the US, UK, Australia and Israel). Its aim will be to elicit those elements of balancing in the four regimes studied that may be useful in thinking about future legal and regulatory regimes, in Israel in particular. An end result is envisaged of enriching the public and professional debate in Israel and in other countries around the national security-privacy issue.