Debora Horňanová
Political Philosophy
Easter Term, 2024
Cambridge Journal of Political Affairs, 5(1), pp. 248-278

Introduction

New revelations surrounding the unprecedented deployment of mass surveillance by American and British intelligence services have captured both scholarly attention and policy-makers’ interest in recent years. State surveillance, being the monitoring, collecting, and processing of personal data by the government (Eck and Hatz 2020, 604), is not a new phenomenon originating in the twenty-first century; however, it has often been characterised as a feature of authoritarian regimes, since it was historically associated with controlling autocratic societies and the suppression of political dissent. Some examples of countries that applied these measures have been the People’s Republic of China, the Soviet Union, the German Democratic Republic, and North Korea (Dunnage 2016, 119–121). However, in the past decades, states’ capacity to monitor citizens’ lives on a massive scale has almost universally increased, to the point where it is now one of the main aspects of a digitally repressive governance model (Poetranto 2021). Technological advances have enabled sophisticated AI and facial recognition tools to be integrated into surveillance systems, creating even more questions concerning their legitimacy, use, and related legislation (Dunghy 2023). The common justification for the mass surveillance measures follows concerns for national security, while concerns about citizens’ privacy appear to be more of an inconvenient obstacle.

Following concerns during the COVID-19 pandemic, justifications for mass surveillance offered by governments – liberal and illiberal alike – often referred to the mitigation of the spread of the virus. In the People’s Republic of China, where the use of surveillance technology has long been justified by the need to protect national security, authorities frequently mentioned the need to safeguard public health. In the long run, the repeated practice of constructing justifications for mass surveillance has opened the door to more frequent and more insidious use. Similarly, many democratic countries have recorded a deterioration of their democratic institutions during the pandemic, and this ongoing democratic decline has been exacerbated by state measures that sought to address national security and health concerns by increasing surveillance. Governments’ discriminatory restrictions on freedoms, arbitrary enforcement of restrictions by police and non-state actors, and excessive surveillance have undermined democratic governance (Repucci and Slipowitz 2021). In a state of uncertainty concerning the consequences of COVID-19, governments took unprecedented measures to track, trace, and contain the spread of the virus. For example, to ease the gathering of information, governments often utilised geolocation data derived from mobile call data records or collected from mobile applications, as well as biometrics such as facial recognition data (OECD 2020a). The swift adoption of surveillance measures during the COVID-19 pandemic, especially by democratic countries, certainly has increased the prevalence and arguably the normalisation of high state surveillance. The methods of information collection during the pandemic have included drones, mobile phone usage data, biometric tracker bracelets, surveillance of population movements through closed-circuit television (CCTV) and tracking of citizens through mobile applications. These ‘extraordinary’ surveillance measures were the dominant information control tactic of choice for governments (Eck and Hatz 2020, 604-606). In the post-COVID period, the substance of this data and the way it was collected have substantiated concerns about citizens’ privacy. Even though surveillance measures were implemented in the hope of increasing and improving the effectiveness and swiftness of government policies, they have also impinged on citizens’ privacy and other fundamental rights, especially because of the lack of transparency and public consultation.

The scale of surveillance measures adopted in order to collect this data has raised academic questions surrounding the appropriate level of surveillance a legitimate government can justify, as well as the impact on its citizens. These questions include impacts on one’s freedom in the sense of information capture, storage, and access to this information (Solove 2006, 490). Criticism of government mass surveillance policies often revolve around the erosion of privacy, accompanied by concerns involving created vulnerabilities in the monitored subjects. Because mass surveillance creates an unequal position between the observer and the observed, surveillance is seen as a threat to democracy and the integrity of the public sphere (Goold 2010, 44). In contemporary politics, the ever-increasing use of mass surveillance makes the debate on the use of mass surveillance and its legitimacy particularly significant. Scholars have already started reviewing how mass surveillance breaches informational privacy and autonomy in the digital sphere, often coming to different perspectives on the justifications for the use of surveillance.

To ameliorate privacy concerns, several governments have created privacy enforcement authorities (PEAs) to uphold transparency by public bodies and protect individual’s data privacy. Others have come together to institute collective frameworks for data protection, as can be seen by the statements issued by the European Data Protection Board and by the Council of Europe, which emphasise that restrictions on individual freedom for the sake of public emergencies must be both proportionate and temporary. The PEAs across the world have published general guidance for data controllers and processes, endorsing a pragmatic and contextual approach (OECD 2020b).

In this paper, a theoretical discussion of the notion of privacy is used to pin down why it is important for one’s freedom. Privacy (or the lack thereof) is easily identifiable when experienced but is difficult to define. People seem naturally inclined to value it, and shy away from the outside world’s unwanted scrutiny, but in the literature there is no singular clear definition of what privacy entails. Existing definitions of what privacy entails can be grouped into three, not mutually exclusive categories: (1) privacy as blocking access of others to a person and his personal realm; (2) privacy as control over personal information; and (3) privacy as freedom from judgement or scrutiny by others (Introna 1997, 261-262). Privacy can be understood as the right to be left alone, meaning that the right to privacy entitles one to prevent others from watching, utilising, and invading their personal realm. It assures the individual of the right to control knowledge about themselves.

Considering the significance privacy has for the concept of individual freedom, I will examine how mass surveillance restricts freedom from neo-republican and liberal perspectives, before judging which conception succeeds in defending said individual freedoms. Broadly, liberals emphasise freedom from interference, while neo-republicans adhere to freedom from domination. This poses the question of whether mass surveillance’s freedom-inhibiting capacity is better captured as interference in people’s lives or as domination. To answer this question, mass surveillance is problematized from both perspectives, depicting how mass surveillance can lead to interference and/or domination. Following the main research question, the sub-questions that will guide the answer to this question are as follows: How is freedom conceptualised from liberal and neo-republican perspectives? How is mass surveillance problematised from liberal and neo-republican perspectives? The liberal perspective is introduced first, followed by the neo-republican perspective. The emphasis is on the philosophical conceptualization of the different ways people can become unfree when being surveilled. The perspectives are also enriched by the views of how mass surveillance was freedom-inhibiting during the COVID-19 pandemic. Next, the article analyses and compares the two perspectives’ abilities to assess the freedom-inhibiting capacity of mass surveillance. This is followed by a section on how an individual’s freedom can be preserved under a surveillance regime. The paper ends with a conclusion, returning to the central question and noting the implications and limitations of this paper.

The Liberal View

1.1 – Liberalism on Freedom: Freedom as Non-Interference

To better understand the stance of liberalism on mass surveillance regarding its freedom-inhibiting capabilities, it is first important to clarify how liberals conceptualise freedom. The basis for the contemporary work of political philosophy of the liberal tradition is Isaiah Berlin’s (1969) conception of negative liberty. Negative liberty delineates the area in which a person can act unobstructed by others. If a person is prevented from doing something by another person, their freedom is obstructed. Therefore, liberals are commonly characterised by adhering to the idea of freedom as non-interference, often called ‘liberty from’.

Non-interference is the opposite of coercion. Coercion implies the deliberate interference of other people within the area in which one could otherwise act. The wider the area of non-interference by others, the wider one’s freedom. The interference of others can be direct or indirect, with or without the intention of doing so. The sense of privacy itself can be derived from the conception of freedom, i.e., the area of personal relationships. Acknowledging that a person should have a frontier of private life that should not be interfered with by others marks the fact that the liberty of some must depend on the restraint of others (Berlin 1969, 36).

Contrary to this, positive freedom means to have freedom to do something rather than have freedom from others’ interference. Persons who are positively free are their own masters in deciding what they do, depending on their decisions to do so and not by other external factors. Additionally, positive freedom means not being prevented from choosing what I do by others. (Berlin 1969, 44). Within liberalism, the expression of a preference for negative liberty is based on two main objections with regard to its positive counterpart. First, liberals tend to express a concern that the inclusion of positive liberty opens the door for the justification of tyranny. The justification of coercion of some people over others, in the name of reason or a ‘higher freedom’, can pose as a disguise a tyrannical entity to unnecessarily interfere with the character development and life plans of others. Second, liberals may worry that if freedom is construed as rational self-mastery, trying to be freer, a person may give up their real desires instead of removing restraints that prevent the realisation of their real desires. This largely only benefits those inclined to avoid actions that are likely to lead toward failure, in choosing not to strive for anything that cannot be certainly obtained (Berlin 1969, 45-46). These two arguments against the inclusion of positive liberty are often referred to as ‘the tyranny argument’ and ‘the inner citadel argument’, respectively (Christman 1991, 351). This paper will examine freedom with regards only to negative liberty, I will not examine how mass surveillance affects one’s freedom to realise one’s own self-mastery and/or autonomy, and consequently to achieve one’s self-fulfilment or self-development when searching for ‘higher freedom’, as this does not factor into the majority of objections to mass surveillance.

1.2 – Liberalism on Mass Surveillance: Significance of Privacy

Freedom in its negative sense means being able to act unobstructed by others without interference. In the traditional liberal view, the value of privacy has its source in specifically liberal ideas defending the right of an individual against the claims of the collective as such. Some sceptical liberal thinkers may see the value of privacy purely as a self-interested economic behaviour aimed to conceal any discreditable facts about oneself (Posner 1981, 233). Privacy in that sense ought not to receive much special legal protection because the negative effects of losing privacy oftentimes are outweighed by other liberties. Such a view would only emphasise the potentially unpleasant and/or harmful effects of the disclosure of personal information that could be facilitated by mass surveillance. Still, liberal privacy sceptics acknowledge that others may use information about an individual in ways that can harm them even if they do not perform illegal or immoral acts that they need to hide (Solove 2007, 772).

Mass surveillance is characterised by the creation of large quantities of collected data, leading to the debate about whether the surveillance reduces the privacy of those who are subjected to surveillance. These concerns question the existence of the collected data and human access to this data (Königs 2022, 2-3). There are growing concerns over what exactly can be monitored about persons due to technological advances. Despite their ‘unobtrusive’ presence, some devices can monitor a person’s location, physiological functions, spending history, internet history, and other traditionally considered ‘private’ facts. Following the liberal perspective that a person is free as long as they are able to act unobstructed by others, mass surveillance must act as an external obstacle for individuals to cause unfreedom. Fried (1984, 210-211) labelled this control as an aspect of personal liberty. He specified that being able to grant or deny access to your own information is what it means to have privacy. People themselves must be able to decide if they want to share private information about their lives and themselves, to which outsiders should not normally have access. Therefore, having privacy means that individuals can make their own decisions about whether or not to share private information, and to decide on the extent of this shared information.

Fried (1968, 477) stresses the importance of privacy for an individual, emphasising that, without privacy, the most fundamental relations of love, friendship, respect, and trust cannot be conceived. Decisions about the amount of shared information regulate the ‘degrees’ of friendships because they are guided by a desire, or lack thereof, for intimacy Furthermore, and to use Fried’s (1968, 478) chosen term , privacy is the necessary ‘atmosphere’ in which these relations can take place. Fried understands familiar and affectionate relations as relations built on a common conception of basic entitlements and duties of persons in regard to each other. To create fulfilling relationships between lovers and friends, the people involved must mutually relinquish rights in favour of new, shared interests that are mutually understood by them as the expressions of their relationship. By choosing the intimacy of sharing information about one’s actions, beliefs, and emotions, individuals create an actively reciprocal relationship of support and relinquishment of rights as a voluntary gift by one another in private (Fried 1968, 481). Entering into these relations of mutual trust should be based on the personal decision of all involved individuals who enjoy and accord to each other a certain measure of privacy, contrary to the possibility of involuntarily sharing personal information about oneself that is recorded by surveillance devices.

Privacy is therefore a precondition for the possibility of these ordinary relationships based on respect, love, friendship and trust. Necessarily then, if privacy is required to create the most valued forms of relationships, any threats to an individual’s privacy threatens the very integrity of persons. To sum up, despite the ‘unobtrusive’ presence of surveillance technologies, mass surveillance does restrict something meaningful for persons. More specifically, it blocks individuals from creating meaningful relationships of love, trust, and friendships with each other, thus obstructing one’s freedom.

Related to this, Rachels (1975, 326) argues that the choice of how much to share with others creates distinctions between different interlocutors such as a spouse, colleague, boss, priest, teacher, therapist, and so on. Again, as these relationships are considered valuable, the value of privacy and the decisions regarding particular information sharing is valuable as well. This point emphasises that privacy is not just important for the creation of relationships with people in general, but also for creating differentiating relationships according to one’s own preferences and choices. The decisions regarding the extent of information shared with different people essentially inform these people about what conclusions they shall make about the closeness of relationships with others. Mass surveillance not only limits the possibility of choosing who should know what information about oneself, obstructing not just individual choices to create relationships with others, but also hinders the possibility of creating different types of relationships with various people.

Privacy is also important for an individual’s ability to express their mind. Without it, people who wish to say or do something that is either unpopular or unconventional risk backlash from others. In a situation where all actions and words are public, the notion of public disapproval and/or tangible retaliation from society would obstruct individuals from doing or saying anything that they would not choose to say or do outside a close group of friends (Fried 1968, 483-484). Being surveilled causes individuals’ words and acts to be public, potentially blocking them from openly speaking their minds and doing as they wish. This is a significant obstacle to freedom of speech.

These concerns explain why liberals in general are against surveillance, because these issues represent threats to individual civil liberties (Richards 2013 1935). As mentioned before, liberals often use the concept of privacy to protect an individual from the effects of intrusive surveillance. By advocating for freedom from interference, i.e., negative liberty, most liberal thinkers declare that the state has not just the job of protecting citizens from the interference of other citizens but also of restricting its own interventions vis-à-vis its citizens. This however does not translate into current practice for states, even in liberal democracies (Daemen 2022, 8-9). As a response to the COVID-19 pandemic, many governments introduced new regulations for one’s activity and movement. Using surveillance measures has allowed the government to gain new insights into citizens’ activities and movements, creating the potential for even more new policies targeting movement, assembly, and association, all of which were justified by governments’ concerns for citizens’ health security. In this sense, during the pandemic, the presence of surveillance measures necessarily also indicated a potential future presence of other regulative measures applied as a result of the existing surveillance. Hence, surveillance measures can lead to government interference in the form of new regulations and restrictions that constitute unfreedom.

The Neo-Republican View

2.1 – Neo-Republicanism on Freedom: Freedom as Non-Domination

The neo-republican perspective conceptualises freedom as non-domination. Person A is dominated by person B to the extent that person B has the capacity to arbitrarily interfere with choices that person A can make. If an interference happens, this interference must involve an intentional attempt to worsen person A’s situation of choice. The possible behaviours that might constitute an interference are coercion of the body, coercion of the will, or manipulation. All interfering behaviours either alter the expected payoffs assigned to the changed options or assume control over which outcomes will result from which options, influencing the actual payoffs of these choices. Such interference can take on various forms: the option can be withdrawn by someone; the options are made to appear less attractive (possibly with attaching sanctions); or the options can be misrepresented, causing the lack of a proper understanding of the options (Pettit 1996, 578-579).

The neo-republicans idea of freedom as non-domination is often referred to as a ‘third concept of liberty’. The basis for its conceptualisation comes from the Roman juridical distinction between a free citizen and a slave, in which a person can be unfree even if they are not interfered with. This is because a person is unfree as long as they are subjected to the arbitrary will of another, disregarding the actual interference as the only way to cause unfreedom. The arbitrariness of interference implies that the only stop on the dominator’s inflicting interference is the dominator’s own unchecked choice and judgement (Pettit 1996, 581). Thus, a person is dominated by another when they are dependent upon the dominator’s will. The degrees of the dominator’s power might vary, and the dominator might not even plan on interfering, but as long as the dominator can exercise arbitrary power, the subject experiences domination and thus unfreedom.

For neo-republicans therefore, constricting one’s freedom does not require a particular act, i.e., interference. It only requires a particular actor, i.e., a dominator, who has the power to execute an interfering behaviour against another if they choose to do so. This dynamic arises since the actors are situated in imbalanced power positions. One actor possesses power over another, for example, through gaining important (i.e., secret) information about the other actor. It is this disregard for the act of interference itself that separates neo-republicans from liberals. Another key feature of domination is the arbitrariness of the dominator’s exercise of power. This means that the dominator’s power is free from accountability or contestation. The focus of neo-republicans is on the power imbalances between the actors, rather than on the actual interfering behaviours, because the imbalances in power translate into the dominating status of one actor over another. The dominating status is contingent on sustaining the power, rather than exercising the power and interfering in one’s life.

In contrast to the dominated actors, free agents have control over the powers that interfere with them, while, at the same time, being protected from being subjected to the arbitrary will of others who have the capacity to interfere. To secure non-domination in practice, it is necessary to have an institutional structure, i.e., antipower, that represents a form of control regarding people’s own destiny. Antipower allows the subject to enjoy non-interference, not by virtue of accident or contingency; it reduces the intensity and the extent of the domination of some by others by maximising the range over which undominated choice is enjoyed. To do so, we can give the powerless protection against the resources of the powerful, regulate the resources of the powerful, or give the powerless new resources of their own (Pettit 1996, 589-592).

Pettit (2012, 50) replaces the concept of arbitrariness with the idea of control. A person is dominated by another agent or agency in a certain choice over which they have no control, while the agent or agency has the power to interfere in it. As long as a person can influence the exercise of the interference, they are not dominated by others. Interference therefore does not immediately constitute domination. An example of such is the acts of constitutional authorities, such as the police force or judges. This is because they do not interfere at will and with impunity. Instead, they practise non-dominating interference due to the constraining constitutional arrangements that are set up in order to avoid misuse of power by these authorities. These agents or agencies can exercise interference only under constitutionally determined conditions. Similarly, if they exercise power in certain areas of discretion, their actions are subject to appeal and review, marking the fact that they do not exercise power without impunity (Pettit 1996, 586-587).

To realise non-domination in practice, two directions of powers must be recognised as conceptually and practically distinct. There are vertical and horizontal powers of the state and government that both must ensure non-domination together, cultivating ‘social justice’ (Pettit 1999, 51-79). First, agents have horizontal powers, i.e., governmental institutions, that are used to ensure non-domination between citizens. Horizontal domination happens when the citizens are exposed to arbitrary interference from other citizens. Second, vertical powers, i.e., the state, should ensure that citizens are protected from internal and external violence. Pettit recognizes the fact that the state can be a source of domination. This would be called vertical domination, which takes place when citizens lack ultimate control over the interfering actions of the government. The absence of either vertical or horizontal domination is equal to political legitimacy and justice (Pettit 1999, 24-25). To sum up, the non-domination of both vertical and horizontal powers requires institutional structures that secure its realisation in practice.

Questions about one’s range of choices and the practical viability of their selection can guide the discussion about what it means to not be dominated: having control over the powers that are interfering and being protected from subjugation to the arbitrary will of other agents who have the capacity to interfere. This is best illustrated by Pettit (2012, 60-64) who explains that a slave is dominated even without interference, simply by being aware of his dependence upon the arbitrary power of his owner. He is not free to choose his actions. This type of shaping of others’ behaviour by non-invasive means can be illustrated elsewhere as well. Pettit’s eyeball test serves the purpose of distinguishing the intimidated agent from an undominated one. The truly free agent does not ingratiate himself to people and can look others in the eye irrespective of their institutional positions (Pettit 2012, 84-85).

Participation in political life is a crucial aspect for republicans. In Pettit’s (1997, 51-79) works on republicanism, political participation is instrumentally valuable, for it is through political processes that individuals can achieve their freedom. To secure freedom, a person must participate in the processes that create their constraints. As mentioned before, when power is exercised over a person who took part in the decision-making of these exercises, domination does not take place. For the state’s interference to be non-dominating, the participatory duty of the citizens is thus significant. This duty however does not extend any further than the election of representatives. Therefore, to create a non-dominating society, representatives must take a proper account of the interests of those whom they represent while citizens must be prepared to oppose those representatives’ decisions that fail to track their interests (Pettit 2006, 309). In other words, citizens can realise the ideal of self-government and enjoy non-domination through participation in the decision-making processes that generate the rules that regulate their conduct. This is opposed to liberal conduct that is much less demanding for its citizens. From a liberal perspective, involvement in political life and supporting liberal institutions is not a necessity for freedom, but a virtuous act (Roberts 2014, 327-328).

2.2 – Neo-Republicanism on Mass Surveillance: Privacy as Antipower

Surveillance as a form of domination is not sufficiently addressed by current neo-republican works in general. Most of the works that follow neo-republican theory and scrutinise these topics do so by focusing on the topics of privacy, big data, and surveillance. They do so by using the works of Phillip Pettit, one of the main defendants of neo-republicanism, which is also known as civic republicanism. His works are the cornerstone of the neo-republican theory which is only extended further by the authors that apply neo-republican ideas on topics that were not yet explored by Pettit (Hoye and Monaghan 2015, 349). Due to the lack of overall sources on the topics of mass surveillance from the neo-republican perspective in general, this article heavily relies on his work that not only describes how freedom is constricted by domination, but also shows how to retain this freedom back, a topic that is explored in detail in later sections.

Neo-republicanism rejects the liberal principle that unfreedom originates only from coercive interference. The literature regarding surveillance and neo-republicanism is concerned with how power can shape behaviour through non-invasive means. For example, how power positions influence one’s behaviour is observed in Pettit’s eyeball test (Pettit 2012, 103). This behavioural change can be analysed as the ‘conduct of conduct’ responsible for the promotion of the autonomous ‘responsibilisation’ of agents. This illustrates how surveillance does not direct an action by restricting viable choices. Instead, it compels choice by directing a person to choose a less risky outcome. Since the person knows that somebody is watching his actions, his actions will reflect these fears, making the person choose to not do anything that would result in punishment and/or interference from others (Hoye and Monaghan 2015, 349-350).

Privacy is valuable for neo-republicans because it can protect individuals from domination. Losing one’s privacy may lead to circumstances in which others are capable of arbitrarily wielding dominating power. Mass surveillance violates one’s privacy and gives power to the state, allowing for arbitrary interference with citizens’ choices. Roberts (2014, 329-330) identified three possible types of such arbitrary interference from which privacy protects citizens. These types of interference are (1) the act of replacing one’s options by attaching sanctions to them; (2) the act of removing one’s options; and (3) the act of misrepresenting one’s options through manipulation. Mass surveillance allows for gathering information about the monitored subjects, providing the dominating agent with the necessary knowledge about their daily lives, and revealing possible ways to manipulate and/or persuade them when needed. One example of such behaviour is the targeted marketing used by corporations to increase their profits (Richards 2013 1955).

Surveillance activity discloses the direction of people’s choices, making it easy for outsiders to know what they are planning to do. This causes vulnerability, which can be exploited. When people’s options are replaced, they are substituted with an option with a less attractive alternative. This causes the person to not choose the alternative and instead choose another option that the dominating agent would prefer for them to choose. One common way to create less attractive options is by attaching sanctions to them. The circumstances in which the loss of privacy leads to the removal of certain options are not hard to come by, either. In mass surveillance settings, the disclosure of information about an individual can lead to being ‘blacklisted’ in recruitment processes. The disclosed information provides employers with a dominating position over their potential employees when choosing who is suitable to work in the company. This describes a situation in which employers have the power to remove the option of being recruited for potential employees. Similarly, a state can also remove certain options for its citizens through the criminalization of certain activities. When such interference is arbitrary, the interference constitutes a form of domination (Roberts 2014, 330-331).

These three types of domination that can happen when privacy is breached reveal the importance of privacy, which is its antipower capacity. It is a form of protective power that broadens the range over which undominated choice is enjoyed for individuals. In circumstances where the loss of privacy is not followed by any interference, republicans explore the relationship between privacy and negative freedom using the idea of domination. A person can assume a dominating control over another, even when there is no attempt to interfere directly in the choices made by another. Pettit (2012, 60-62) describes this exercise of control as invigilation of a subject’s choices. To invigilate one’s choices means to let others choose as they wish and not to interfere, but to still be ready to step in and block the choices if they do not accord with the dominating agent’s preferences as to how they should choose. When an individual becomes aware of such a situation, it can lead to intimidation, enhancing the effect of invigilation by giving the individual reason to be cautious about his own choices. Even if those who acquire the information about others have no interest in using it for their own ends, as explained above, they still possess dominating power. This is because they have the power to arbitrarily interfere in the choices of others, who cannot control this interference. They acquire dominating power over them regardless of their own motivations or dispositions. This highlights the republican concern for any unchecked inequality in power that is created by the loss of privacy when surveillance takes place.

The inequality in power between the agents is a result of the loss of privacy. That means that surveillance activity is harmful regardless of whether the subjects are aware that others are watching or acquiring information about them. Knowing one’s sensitive and personal information opens the possibility of manipulating or coercing them in the direction the dominating agent finds more desirable, or removing their options entirely. Since the subjects have no power over such circumstances, they are entirely at the mercy of their dominators’ arbitrary will. Therefore, the acquisition of personal information exposes individuals to certain risks. More specifically, it opens ways for governments to retain domination and expand their power and for corporations to expand their power over their employees and possibly over consumers through various promotional advertisements (Moore 2007, 823-824).

The COVID-19 pandemic has opened up the space to problematise how citizens can be dominated by the state in an emergency. When citizens are faced with a crisis, they are naturally more inclined to look up to the solutions of the experts. This ‘expertocracy’ depicts how citizens are turned into obedient followers of experts and their scientific solutions (Vogt 2021, 552). The power of the state in this situation flows from the emergency status, and thus it is of the utmost importance to return to the state of pre-crisis as soon as possible. For surveillance measures to become acceptable, they must be justifiable in the face of losing citizens’ privacy. For this, crises, such as the COVID-19 pandemic, create the perfect opportunity for the state to introduce surveillance that can be justified by concerns about citizens’ security and health. The pandemic has made citizens dependent on the state, marking the point where the state gained power in a state of uncertainty. This points to the possible interconnected nature of crises and surveillance modes.

3 – Comparing Liberalism and Neo-Republicanism on Mass Surveillance

This section compares the freedom-inhibiting capacity of surveillance on individuals from both liberal and neo-republican perspectives. Both perspectives would agree that mass surveillance is objectionable. The liberal perspective emphasises the loss of basic liberties as a result of mass surveillance, while neo-republicans emphasise the creation of a dominating status of one actor over another. Both perspectives therefore find that actors, in a situation where they know they are being surveilled, are not free in their actions, but are scrutinised by those who are watching. They may be careful about what actions they do and what words they speak to avoid unnecessary persecution or societal disapproval. Similarly, both perspectives problematise how mass surveillance makes citizens vulnerable to further interference either in the form of new regulations and restrictions or by replacing, removing, and misrepresenting options that are available for the citizens.

Although both perspectives find grounds to consider mass surveillance as resulting in unfreedom, they diverge when considering the necessity for interference. Strictly speaking, in the rare circumstance where mass surveillance does not lead to interference with one’s life or losing one’s basic liberties, liberals cannot take issue with the freedom-inhibiting capacity of mass surveillance. As I outlined earlier, mass surveillance theoretically blocks individuals from creating meaningful and differentiating relationships with others because they cannot control what personal information they disclose.

From the neo-republican perspective, a lack of interference with one’s liberties is not required to reject mass surveillance due to its freedom-inhibiting nature . Being in the position to survey on a mass scale gives the state the power of arbitrary influence, which for neo-republicans constitutes unfreedom. This is the case regardless of whether citizens are aware and adjust their lives accordingly, whether the state interferes with its citizens’ options based on the collected information, or whether the state sits back and decides not to do anything. The focus is on the state’s newly acquired arbitrary power over its citizens because of mass surveillance. The nature of surveillance itself allows the state to either interfere, invigilate, or simply disregard the gathered information. In this sense, the consequences of interference are irrelevant, only the potential power of the state to interfere. Measures that protect individual privacy can therefore act as a protective antipower structure against state domination.

The neo-republican perspective, I argue, can provide a stronger rejection of mass-surveillance programmes than a liberal outlook. Since the liberal perspective is contingent on the consequences of surveillance on individuals, they are unable to reject its implementation in cases where there are no overt negative consequences for their citizens. However, the issue with mass surveillance is that even if it does not take place, the mere capacity of states to perform mass surveillance can still be problematic. From the neo-republican perspective, to be free means to have control over the interfering powers and to be protected from being subjected to the arbitrary will of others who have the capacity to interfere (Pettit 1996, 581). States that reveal their capacity to survey their citizens demonstrate that they have the potential to subject their population to the arbitrary will of those who hold the power to interfere. Liberals cannot oppose the states’ capacity to dominate on these grounds; the liberal account (in its negative state) has to rely on the observed negative consequences of interference rather than objecting to the potential to interfere in principle.

Even if the citizens do not have full information about the capabilities of their state, the pure intuition of being under surveillance is enough to be dominated (Pettit 2012, 61). In fact, It is even more effective when the citizens do not fully understand their state’s capabilities to monitor them. It makes them intimidated because they are never sure if the state will interfere with them once they do not act in the way the state wants them to. The historical examples of mass surveillance and how the monitored citizens were not aware of being surveilled makes this point meaningful. In the example of mass surveillance exercised by the Western intelligence agencies, citizens were dominated by the state’s invigilation of their choices – choosing not to interfere with their citizens unless they did not choose in accordance with the state’s preferences.

Neo-republicans acknowledge that the capacity of states to exercise mass surveillance is possible, and thus the state enjoys a dominating position vis-à-vis its citizens. This result follows the ever-increasing capacity and inclination of states to mass surveillance noted by historical examples in both autocratic and democratic states. Liberals cannot account for the unfreedom originating from the states’ capacity to mass surveil because states’ sole capacity to mass surveil need not necessarily constitute any interference in citizens’ lives.

As prior mentioned, to create a non-dominating society, there must be antipower institutional structures set up in place in order for the state to not dominate its citizens. These structures avoid situations in which citizens lack control over the interfering actions and domination of the state. More specifically, in this case, actions originating from practising mass surveillance. The mere fact that surveillance takes place puts the state in a position to have the ability to use the collected information to interfere with its citizens’ choices, pointing out the fact that the use of mass surveillance should be reduced as much as possible. Similarly, the emergency status originating from crises such as the COVID-19 pandemic threatens to create state domination not just through weakening checks and balances and concentration of power, but through opening possibilities to justify unwanted mass surveillance. The possible ways to remedy this could be found by restricting the state’s arbitrary interference and by creating non-dominating mass surveillance, both of which are reviewed below.

4 – How to Be Free When the State is Watching?

Following the discussion that compared the liberal and neo-republican perspectives, in this section I seek the possible ways in which citizens can avoid state domination stemming from mass surveillance. The neo-republican perspective is better equipped to articulate the nature of unfreedom under mass surveillance. It also offers a possible avenue for protection against such a situation: through the setting up of antipower institutions and equalising power relations among actors. These remedies can also address how individual liberty may be defended in exceptional situations that result in temporary measures that in other circumstances would be considered domination.

As I discussed earlier, privacy can act as an antipower structure that shields citizens from domination in society, limiting the possibility of the state being capable of interfering in the citizens’ choices. It follows that retaining individual liberty would involve the removal of instruments that violate the principle of privacy, such as those which may be used to conduct . However, this solution is not practically viable. States are already able to survey their citizens, and the question of how this capacity may be removed does not fall within the scope of this paper. Instead, in this section I will attempt to answer the question: how might one avoid state domination when already being surveilled?

To avoid the domination of citizens, institutions can be established that remove particular forms of domination but do not themselves become another dominating institution. These institutions are described as promoting antipower, and they work in a way that actively defeats the three conditions for subjugation: agents (1) having the capacity to interfere (2) with impunity and at will (3) in certain choices of others. Antipower represents the form of control of an individual regarding their own life. The main constituting issue of domination is the difference in effective resources (e.g., physical, cultural, financial, legal, etc.) between the dominating agent and the one being dominated. Antipower targets this issue by compensating for these resource imbalances. To do so, strategies include giving the powerless protection against the resources of the powerful, regulating the use of the resources of the powerful, and giving empowering resources to the powerless (Pettit 1996, 578, 588-590).

Pettit (1996, 590) labelled the most important aspect of the protective antipower institutions, more specifically, of the protective rule of law, the criminal justice system. Its main feature of deterring others from interference is reflected by consequences that arise when someone breaks the law. This institution can target unwanted mass surveillance that goes beyond the determined and protective laws and norms of society. This way, citizens are protected by laws that prescribe what the state can and cannot do, marking any transgressions of the state against its citizens not with impunity. Just as judges and police forces are under review when exercising their power in certain areas, the state’s practice of mass surveillance must undergo scrutiny from other actors who are capable of punishing the state when necessary. In the democratic structures, this would follow the checks and balances between the agents. This practice punishes the unwanted arbitrary interference of the state against its citizens when it is not adequate. The threat of punishment for the state’s faulty actions should act as a deterring feature that protects citizens from the state’s unwanted interference.

Another way to promote antipower is to maximise the range of undominated choice by requiring the citizens’ consent to surveillance. This would mean that if the individual does not wish to be monitored, they will have a say in such a decision. Having the option to refuse the exercise of mass surveillance against citizens indicates their control over the state’s actions against them, which would indicate that they are not dominated. We can also make the information-gathering fairer, avoiding the acquiring of power by the state over the citizens. This can be done by empowering citizens with reciprocal surveillance and granting oversight, through legal mechanisms, that would ensure effective guarantees against abuses through the acquired information. Reciprocal surveillance would grant citizens the same power that the surveilling states wield against them (Newell 2014, 520). Theoretically, if actors can arbitrarily interfere when the other agent is not wielding its power adequately, that would neutralise the resulting domination on either side. To sum up, maintaining greater checks on the exercise of state powers can remove the possible subjugation of citizens and promote individual liberty.

To remedy the dominating position of the state, we can also turn to the political participation of citizens in decision-making processes leading toward the use of mass surveillance. This is because political participation draws back the power from the observer to the one being observed. In this sense, political participation is instrumentally valuable, for it is through political processes that individuals can achieve their freedom (Pettit 1997, 51-79). People become self-governing when they participate in processes that generate the rules and norms that regulate their conduct. Political participation also allows citizens to develop a proper understanding of the laws and institutions that influence them while determining the content of the laws (Lovett and Pettit 2009, 15). Because they themselves define the boundary between the public and private spheres by engaging in deliberative political processes, citizens exercise a check over privacy-interfering conduct coming from the state. To sum up, as long as citizens determine the rules regarding the use of mass surveillance, resulting mass surveillance activity does not originate in the arbitrary exercise of the state’s power. This allows for the possibility of surveillance without domination.

Following the reasoning of Pettit’s accounts, mass surveillance does not have to constitute unfreedom if it tracks the common interests of the citizens. For a state to exercise arbitrary power against its citizens, the power must be exercised in a way that tracks the power-wielder’s (i.e., the state’s) welfare or world view. If it tracks the welfare and world view of the public (i.e., the citizens), the exercise of the power is non-arbitrary (Pettit 1997, 56). These interests however must be the common interests of the citizens, and not the ‘sectional’ or ‘factional’ interests of the common entity. This has two implications. First, comes to bear on deliberative political processes; they should be able to formulate and justify the common interests arising from the use of mass surveillance. When procedures that determine these outcomes are fair (by recognising the equal statuses of the citizens and providing them with equal opportunities for success), implementing mass surveillance would not constitute unfreedom. While not denying the consequences of this implication, its realisation appears unlikely since it would require unanimous participation in the decision making process.. Regarding this, Shapiro (2012, 327) claims that Pettit’s confidence that the losers of the deliberative processes “will accept the legitimacy of their defeat” is a matter of faith. Pettit’s claim therefore contains an assumption that these processes will proceed without disagreement or division, which opens a potential avenue for rejecting the argument entirely.

Second, if mass surveillance still follows the citizens’ interests, citizens are not dominated by the state because its interference will be publicly desirable and will not intentionally worsen citizens’ situation for its own sake. This, however, begs the question of if it is possible to properly differentiate between the welfare of the state and its citizens, considering their intertwined and mutually self-constituting nature. This perspective makes us take seriously the need to identify the true interests of citizens, especially in circumstances where citizens do not agree that the resulting punishments and/or interferences from mass surveilling activities are for their own good.

In an emergency situation, political actors are often given special authority to act unilaterally to take necessary actions that require fast execution. The state as the sovereign institutes the state of exception, as addressed by Schmitt (1985, 12), during which the sovereign ‘suspends the law’ that exists in normalcy. These adjustments are important to handle the crisis adequately and to ameliorate the negative consequences of the crisis on the citizens. One of the decisions could also be the introduction of mass surveillance, just as it happened during the COVID-19 pandemic. The emergency state of the country leaves the standard political constraints and mechanisms of accountability partially incapacitated, leading to unchecked power (Smith 2023, 30-36). To avoid state domination in emergencies, there must be set up precautions and antipower institutions, and there should be widespread political consensus across multiple components of the constitutional order that it is necessary to declare an emergency. This might mean that the body that declares the emergency should be distinct (or somewhat separate) from the power that will take on the emergency powers. These provisions should avoid unilateral seizure and exercise of power by one actor. Similarly, the expiration of the emergency power should not be entirely on the executive. It is important to have an expiration date or predetermined criteria that would determine when the emergency powers must be re-authorised again. Furthermore, these powers should be specifically tailored to the relevant crisis so as not to gain unnecessary power, and the ability to collect resources related to the emergency powers should not be entirely up to the executive. The most controversial check on emergency powers is a potential retrospective legal accountability that would include mechanisms such as civil liability, being subject to public condemnation or criticism, or prohibition of holding future offices (Smith 2023, 39-42).

These aforementioned checks should ensure that the executive power that gains emergency powers will not turn into a dominating entity. Otherwise, problematic surveillance implemented due to concerns about citizens’ health and security during emergency situations may become a permanent fixture. Adhering to the checks on the emergency power from the start allows mass surveillance during the crisis to be more likely implemented solely for the common interests of the citizens. The introduction of mass surveillance, in that case, might not constitute domination. as It would not be an arbitrary exercise of the state’s power, but an exercise of the state’s power to support the welfare of the citizens.

5 – Conclusion

In the face of the ever-increasing use of mass surveillance, the societal implications of this work point to the importance of minimising mass surveillance activity due to its natural freedom-inhibiting properties. Taking into consideration the oftentimes absent proper justifications for surveillance, and the common inadequacy of real-world political structures to empower those who are monitored, mass surveillance is a threat to individual freedom. Mass surveillance’s freedom-inhibiting nature, and its disposition to make citizens vulnerable to unwanted state interference or domination, should warn us against accepting mass surveillance technologies as a norm of modern societies. This is because, through their emphasis on avoiding domination, they can question the unequal position between citizens and states even before mass surveillance has taken place. By following the historical evidence of mass surveillance activities in both autocratic and democratic countries, neo-republicans can formulate an account in which the sole capacity of states to mass survey their citizens is problematic.

To avoid the freedom-inhibiting effects of mass surveillance, neo-republicans can precise how to allow for the empowerment of citizens with a robust constitutional structure and/or effective guarantees against abuse of information. This is done by setting up antipower institutions that protect citizens from unwanted interference by other actors, by affirming citizens’ political participation in deliberative decision-making processes that result in conduct-regulating measures, or by designing mass surveillance in a way that tracks the interests of the public and not of the state. The latter solution, for example, could be ensured by creating a non-dominating executive power in emergencies that is more likely to track the interests of the citizens rather than its own.

The main limitation of this paper concerns the multifaceted types of mass surveillance technology ranging from audio and video monitoring, GPS tracking, computer surveillance, social media surveillance, financial surveillance, and biometric surveillance. These diverse possibilities of how to track one’s life open numerous options for how one’s freedom could be impacted, possibly offering a more nuanced view of freedom-inhibiting mass surveillance from both liberal and neo-republican views.

The research question of this paper has been: how is mass surveillance problematized from the liberal and neo-republican perspectives, and which is better suited to account for the freedom-inhibiting effects of mass surveillance? The accounts of liberalism and neo-republicanism have traditionally focused on the contributions of privacy to individual freedom. Surveillance on a mass scale means that people’s information gets collected and stored, disrupting one’s privacy, and therefore some measure of one’s freedom. The result of the discussion is that neo-republicans are better suited for capturing the negative implications of mass surveillance. The implications of this paper point to the fact that neo-republicans are better equipped to capture the constriction of freedom resulting from mass surveillance than liberals are. This is because they can formulate how states’ capacity to mass surveillance is itself problematic. Following the multitude of possible surveillance instruments, future research could analyse how neo-republicanism problematizes the myriad types of surveillance methods vis-à-vis individual freedom. In the face of the current progressive advancements in surveillance technology, research in that direction would be both meaningful and academically relevant.