Guardian Intrusion For 13 June 2013
David Omand, writing in yesterdays Guardian says we shouldn’t be surprised to discover that our intelligence services are working with the Americans and it’s a good thing that they are. He is right. But that does not mean that we should allow a friendly power (even our most friendly one) to intrude on our citizen’s privacy in ways they would not permit with their own.
He says that this is all OK because its only computers who see our data and humans will only see what they programme the computer to show them. But who does the programming?
He says we can be re-assured because our Government’s are all operating to the rule of law. But what if, as I believe, the law we have is an utterly defective one?
He proposes six brand new principles which should govern state intrusion into our privacy. I want to assert three well established old ones.
We have recently been told, even by those charged with overseeing the extent of state intrusion in our lives that “Citizens who are not breaking the law have no cause to be concerned about intrusion into their private lives.”
Wrong point.
The right one is: “If Governments never broke the law, citizens would have no cause to be concerned”.
But no Government can make such a promise either for itself, or for its successors. And no citizen should believe them if they did.
I remember in some previous life watching Post Office experts steaming open people’s letters. It has been done for a hundred years and more. The practice was (is, no doubt) legal, acceptable and accepted by most sensible citizens as a proper power to be exercised by the state in order to preserve our security and fight serious crime – PROVIDED this power is subject to three long established stringent safeguards – three “safeguard principles”, if you like.
First, that this power is used specifically and in an individually targeted manner. Fishing trips are not allowed. Nor is it permitted to hoover up the communications all citizens – or all citizens in a specific class – Muslims for instance, or EDL members for that matter – on the chance that those who protect us might just stumble across something which is of interest, or which might possibly be of interest at some time in the future.
Secondly the power to intrude into our privacy must be based on evidence – not just vague suspicion or statistical probability – that we are behaving, or about to behave, illegally.
And thirdly, granting this power must be subject to a warrant given by a third party, preferably a legal one, but possibly a Minister responsible to Parliament, who is outside the organisation which is seeking the right to intrude.
These are the safeguards which were in use when the state was steaming open letters. They were the same principles which were applied when state intrusion extended to telephones. Of course, now that those who would threaten our security have moved to new forms of communication such as emails and Skype, the state must have the power to follow them there, too. No sensible citizen would want to deny the state the ability to go where the serious law-breakers can go. But no alert one would permit that to happen unless that power remained subject to the same safeguards as before.
It is not the widening of the field of intrusion which is objectionable here, it is the weakening of the safeguards which should be in place to control it.
Some in this Government (and even more in the last one) propose that there is a fundamental difference between the “data” of communications (who communicated with whom) and the “content” (what they said). Not so. There is perhaps a difference of degree – but there is none of principle. The safeguards which apply to the first might be set at a lower level than those which apply to the second, but the basic principle remains the same in both cases. Who I sent a twitter message to a year ago, is no more the business of my Government than what I said – unless there are solid reasons to make it so.
The problem is that this crucial dam was breached when the last Government allowed the intelligence organisations the power to hoover up all types of what were then the most modern forms of communications in direct and flagrant breach of all of these principles – instead of collecting information on individuals based on evidence of guilt, they permitted the collection of information on everyone, guilty or not. No evidence required; no need for warrants to be applied for. Now we are told – including by those who were Minsters when this egregious law was brought in – that all we need to do now to make ourselves safe, is to update the current law to cope with even newer, new technologies.
Wrong.
This is not just an opportunity to up to date what we already have. It is an opportunity to amend it so that, at last the laws governing the right for Governments to intrude into our private communications conform with the basic principles which have always applied in these matters in the past – and should still.
Now – most especially in the light of what we know has been happening in the US (and perhaps here too?) – we need to deal with what appears as a new challenge, but is in fact an old one, not by abandon long-established principles, but by re-asserting them.
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