I. Introduction

Privacy is implicated whenever surveillance policies and practices are implemented. In liberal democracies, the onus rests upon those using surveillance, especially governments, to justify incursions on individual privacy. A prominent argument for justifying governmental surveillance is collective security. Security concerns about criminality have seen police use surveillance, including phone-tapping. National security concerns have seen larger-scale surveillance, including metadata collection. Medical security is a growing concern raised to support surveillance, including cellular monitoring of individuals’ movements.

Security, however, is not a moral panacea for justifying the privacyintrusive nature and consequences of surveillance. This is because security, alongside liberty, is embedded in the concept of privacy, and is a reason why privacy is valued. Positioning a broad conception of security against privacy is, therefore, an inaccurate opposition, and arguing privacy must give way whenever large-scale security concerns are raised presents a false conflict.

Other chapters in this collection assume the central value of individual privacy to the humanities tradition1 – and rightly so. These contributors use the tools of sociology, literature and history. They provide us with a literary and social context for this value. This chapter looks more closely at the concept of privacy itself, and, specifically, the form it takes in law. It explores the complex normative underpinnings of privacy, which complexity may give rise to a greater readiness to circumvent privacy when broad utilitarian concerns are raised in apparent opposition to it. The multifaceted nature of privacy, however, does not make it a fluid or weak moral concern: the two fundamental principles of liberty and security both permeate the various normative justifications for protecting privacy. This problematises arguments that surveillance is a justified incursion on privacy, based upon a general appeal to collective security. Particularised, evidence-based arguments are required to address the principles of individual security and liberty, protected within privacy itself, and to discharge the onus of justifying each instance of surveillance.

II. Dealing with Privacy: Surveillance as Security

Although there is no universal, settled definition of privacy, concretely delineating its scope, broadly understood, privacy acknowledges an individual's interest not to be subjected to unwanted observation or access by others in certain, normatively defined, circumstances; or the concern that an individual's family, home, intimate and ‘non-public’ life not be interfered with by others, including the state, the press or other individuals. There are different ways of delineating the privacy interest, and protecting that interest in law.