Against a Crude Balance

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin

They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the Statue of Liberty. They are quoted endlessly by those who assert that these two values coexist with one another in a precarious, ever-shifting state of balance that security concerns threaten constantly to upset. Every student of American history knows them. And every lover of liberty has pondered them, knowing that they speak to that great truth about the constitution of civilized governments: that we empower government to protect us in a devil’s bargain from which we will lose in the long run.

Very few people who quote these words, however, have any idea where they come from or what Franklin was really saying when he wrote them. They appear originally in a 1755 letter Franklin is presumed to have written on behalf of the Pennsylvania Assembly to the colonial governor during the French and Indian War. The letter was a salvo in a power struggle between the governor and the Assembly over funding for security on the frontier, one in which the Assembly wished to tax the lands of the Penn family, which ruled Pennsylvania from afar, to raise money for defense against French and Indian attacks. The governor kept vetoing the Assembly’s efforts at the behest of the family, which had appointed him and did not want its lands taxed. The “essential liberty” to which Franklin referred was not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security. And the “purchase [of] a little temporary safety” of which Franklin complained was not the ceding of power to some government Leviathan in exchange for a promise of protection from external threat; for in Franklin’s letter, the word “purchase” does not appear to have been a metaphor. The governor was accusing the Assembly of stalling on appropriating money for frontier defense by insisting on including the Penn lands in its taxes and thus triggering his intervention. And the Penn family later offered cash to fund defense of the frontier—as long as the Assembly would acknowledge that it lacked the power to tax the family’s lands. Franklin was thus complaining of the choice facing the legislature between being able to make funds available for defense and maintaining its right of self-government—and he was criticizing the governor for suggesting that it should be willing to give up the latter to ensure the former. In short, Franklin was not describing a tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade. Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned. The difference between what he meant and what we remember him as saying perfectly encapsulates our tendency to mangle intellectually the true relationship between liberty and security. The idea that liberty and security exist in balance hangs over America’s entire debate about the optimal legal authorities with which to confront security problems. The metaphor of balance—in which some added bit of liberty weighs down the scales and disrupts the security side, or some new security measure must necessarily make the liberty tray move upwards—lives pervasively in our rhetoric. It lives in our case law. It lives in our academic discourse. It lives in our efforts to describe our reality. It lives in our aspirations. It lives in the calls to shift the balance in perilous times by giving up liberty in the name of security, and it lives as well in the calls to restore the balance by abandoning security measures said to injure freedom. As Philip Bobbitt puts it:

There is a virtually universal conviction that the constitutional rights of the People and the powers of the State exist along an axial spectrum. An increase in one means a diminution of the other. On this spectrum we imagine a needle oscillating between two poles, moving toward the pole of the State’s power in times of national emergency or toward the pole of the People’s liberty in times of tranquility. . . . A corollary to this conviction is the widely held belief that intelligence and law enforcement agencies constitute a threat to civil liberties.

The balance metaphor lives, paradoxically enough, even in our attempts to reject it. Opponents of new security measures will often vocally eschew the balance metaphor—insisting that we can be both “safe and free” or, as President Obama put it in his inaugural address, that we can “reject as false the choice between our safety and our ideals.” Indeed, the idea that we retain security by holding fast to our ideals, not by compromising on them, is a recurrent theme in Obama’s rhetoric—and in a lot of rhetoric on the political Left. Yet in these very attempts to reject a “choice” between the two goods and to assert their congruence, Obama tends to end up describing the very balancing he seems to reject. In his speech on the rule of law and security at the National Archives in 2009, for example, Obama said that:

We see . . . above all . . . how the recent debate has obscured the truth and sends people into opposite and absolutist ends. On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and would almost never put national security over transparency. And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "Anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants—provided it is a President with whom they agree. Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense.

The balance metaphor has a way of rising out of the ashes of its very rejection. The image of balance arises especially vividly in the context of surveillance, where every augmentation of government power is said to come at some cost to liberty. The relationship between surveillance and liberty has taken on special importance as the internet has continued its exponential growth and as personal data concerning individuals has proliferated. The question of how aggressively governments can police and monitor the use of communications and other technological architectures has necessarily arisen alongside these platforms—with the balance metaphor invariably hovering over the discussion. Proponents of more aggressive surveillance justify such steps as necessary and imposing only allowable costs in light of some compelling governmental or societal security need. Opponents criticize them as excessive enhancements of governmental power, which we take at the expense of freedom or privacy. We seldom stop and ask the question of whether and when our surveillance programs are really coming at the expense of liberty at all; or whether the relationship might be more complicated than that—indeed, whether some of these programs might even enhance liberty. We should ask these questions. For as Bobbitt writes, while “[t]here is something to . . . these intensely and sometimes unthinkingly held assumptions, . . . the spectrum view and its corollaries are . . . radically incomplete. . . .”Indeed, the balance metaphor, as I shall argue in this paper, is incomplete to the point of inducing a deep cognitive error. In this paper, I hope to convince the reader that any crude notion of a “balancing” between security and liberty badly misstates the relationship between these two goods—that in the vast majority of circumstances, liberty and security are better understood as necessary preconditions for one another than in some sort of standoff. The absence of liberty will tend to guarantee an absence of security, and conversely, one cannot talk meaningfully about an individual’s having liberty in the absence of certain basic conditions of security. While either in excess can threaten the other, neither can meaningfully exist without the other either. In place of balance, I wish to propose a different, more complicated, metaphor, one drawn not from the scales of justice but from evolutionary biology—albeit from an archaic source in that field. We should think of liberty and security, I shall argue, as existing in a kind of a “hostile symbiosis” with one another—that is, mutually dependent and yet also, under certain circumstances, mutually threatening. This vision of the relationship offers greater analytical clarity than does the balance metaphor. As we shall see, it also offers an important degree of policy guidance as to what sort of enhancements of government security powers will and will not threaten liberty. In tangible illustration of this point, I want bring this somewhat theoretical set of observations down to earth and attempt to apply them in the arena of surveillance, where the balance metaphor seems most deeply entrenched and is, in my judgment, arguably most deeply misplaced. Some surveillance, to be sure, is destructive of freedom. But sometimes, the relationship between surveillance and liberty is symbiotic—that is, increasing government surveillance powers can actually be liberty-enhancing. I wish to highlight in practical terms what Bobbitt calls “the apparently paradoxical conclusion that some increases in the power of the State may increase, or at least do not diminish, the liberties of the People.” In particular, I want to posit a category of liberty-enhancing surveillance that involves the securing of platforms for the use of the public for purposes of commerce, recreation, creativity, and communications. And I want to show how government power is, in these instances, critical to the establishment of baseline conditions of useful liberty. The paper proceeds in four distinct steps. First, I describe the balance thesis in its various iterations and the variety of critiques of it that have emerged. Second, I explain why I think the balance thesis is, while not quite wrong, entirely inadequate and misses the core of the relationship between these two goods. Third, I propose an alternative vision of the relationship, one based on the “hostile symbiosis.” And finally, I try to apply these various observations to the case of surveillance, and specifically to the surveillance of platforms, arguing that even quite muscular exercises of governmental power can nonetheless increase human liberty by making insecure platforms safe for public use.