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Being safe, sound and free: surveillance needs monitoring, too

Privacy is something we take for granted. We lower our voices, close doors and curtains, and simply expect that trusted friends and colleagues would not think to reveal private information. Even trivial things, that are perfectly legal, can be embarrassing. They can be damaging to our reputations and livelihoods. They can provide dirt for mud-slinging, affecting processes from civil claims to democratic elections. Until the human race is entirely free of prejudice and unconscious bias – don’t hold your breath – this will remain the case. Make no mistake, mass surveillance is counter to the nation’s interests.

It can come as a surprise, then, that only in the 21st century did the UK courts formally recognise invasions of privacy. Perhaps this is because some kind of tipping point has been reached: ever more pervasive access to news and gossip from every corner of the earth has resulted in a need for new case law.

Those who value basic freedoms have long supported a right to privacy. It’s modern roots are strong in the UK. After the Second World War, Britain was a leader in setting down the right to freedom from interference in our private lives, homes and correspondence. Winston Churchill was one of the prime instigators of the European Convention on Human Rights. This was a product of the Council of Europe, a body Churchill called for several times, starting in March of 1943. As he put the challenge:

Can the free peoples of Europe rise to the height of these resolves of the soul and instincts of the spirit of man?

Behind the Iron Curtain, of course, the Stasi and KGB went on to demonstrate how chilling it is for a state to assume it has the right to follow its citizens every move. It sucks vitality from the nation, whether in our private lives or the sense of initiative necessary to drive an economy. Privacy, which requires respect for the choices of others, is a fundamental part of being a free people.

Today’s conversations are revolving around America’s National Security Agency (NSA) and our own GCHQ, and to some extent local government and police interference (the RIPA Act). Even before Edward Snowden lay bare the truth about the massive overgrowth of state surveillance, the Lib Dems were already making a stand against gross intrusion into our private lives. It was Reading’s own Dr Jenny Woods who wrote the amendment passed back in the spring of 2012 that helped the Lib Dems defeat the Snoopers’ Charter.

As with most things, it is in practice a complex subject. People want their privacy, but they want other protections, too. Surveillance is a valid tool in fighting crime and defending the country. Here’s my view of the core principles as we work towards a framework defending our right to privacy:

Safe

We must recognise that few rights are absolute; surveillance and investigation is a critical part of defending individuals and the general public from those who would seek to harm others.

Sound

Oversight is essential to the sound governance of state surveillance and corporate intrusion; it encourages the effective use of our security forces and builds trust in the process.

Free

We are a country that has fought hard wars defending the principles of government by consent and freedom of the individual. Despite the inevitable tension, the freedom and privacy of the individual should never be dismissed by mere pandering to concerns of national security and serious crime. You cannot defend freedom by removing it.

Safe

I want to start by saying I am not opposed to the military, police, or Home Office on principle. This is not protest politics. Those institutions play important roles in protecting the people of this country. In order to do so, one of the tools at their disposal is the ability to monitor, track, wiretap, and otherwise investigate individuals suspected of plans or actions to harm others.

It is not an easy job, and the consequences of failure can be severe. I fully support them in their endeavours. Therefore, it is important to have the safety of the nation and its citizens as a fundamental principle.

Sound

At risk of devolving into a Yes, Minister parody, sound governance is important. However, sound does not mean silent. Sound governance means that events are not left to take place in the metaphorical dark, out of sight and out of mind. They are heard by external authorities with a responsibility of oversight and transparency. Decisions may be recorded discretely, and those records kept in a vault for a period, but records must be kept.

This provides not just transparency, but also encourages good behaviour. Groups of people with powers that can be weilded in bad faith need oversight anyway – there’s always one, as the saying goes. But those genuinely doing a good job, in good faith, are influenced by the processes in place to get things done. Basic approval systems are natural indicators of system overload (e.g. managers commenting with some exasperation, “I can’t keep on top of the paperwork AND do my job”). They also encourage focus: people tend to work on things they are able to justify to others, and not just to themselves.

Not being a fan of excess bureaucracy, I’ll add a caveat: I assume that organisations have a necessary degree of flexibilty and responsiveness, with groups and teams capable of acting on their own initiative. If you don’t have those, your organisation will perform poorly, governance process or no.

Caveats aside, here’s what makes for good oversight:

Effectiveness

Many of the justifications given for sweeping surveillance powers are actually examples of the value of reasonable suspicion. 9/11 could have been averted if the US Intelligence Agencies had overcome their dislike of being accountable to others, and the CIA shared specific intelligence when requested by the FBI.

Home Office briefs are saying how useful it was to get the phone records of the guy who tried to blow up Glasgow Airport. Well, obviously. But the security forces hardly need blanket powers to get permission to fully investigate someone who set themselves on fire in an attempted attack. The state has everyone’s support investigating actual terrorism.

We should do more of what works. Rather than the government investing vast sums to keep data on everyone, it should develop a targeted capacity to get results, where skilled expertise is more important than fancy technology (and I speak as a professional vendor of fancy technology).

Financial prudence

If we had good data, I suspect we would find plenty has been wasted on poor procurement processes instead of invested in getting results. However, I have worked in the IT sector for a long time; that could just be lazy cynicism. What I do know is that blank cheques underwritten by political grand standing are, without exception, fiscally irresponsible.

Competence

It’s important to understand the sense in which “competence” is being used here. Competence is usually just taken to mean “skilful”, but in governance, competence involves not just technical skill but also good judgement.

Competence involves questions of perspective and priorities. Where conflicts exist between basic rights, a group focused on one particular right is not competent to judge its correct balance against other rights. For those who don’t like “rights”, substitute “responsibilities”. The principle is the same either way.

It isn’t a criticism of the intelligence, experience, or character of GCHQ or the police to say that civil liberties are not always their first instinct. Nor is it being hard on the press to say they aren’t necessarily experts in security. The good character of the forces has to be weighed against the good character of the free press – without getting distracted by examples of bad character on either side.

In balancing the weighty matters of national freedom and security, no rule book has or can ever be written with all the answers. When freedom and security are in conflict, it must be discussed in the round, case by case, from different viewpoints. It takes different institutions to represent those viewpoints. Much as it appears to wound the pride of the security agencies, they are not competent in and of themselves to judge. They have no right to shield themselves from scrutiny.

To understand this point, there is no better piece I have seen than these entertaining lectures by journalist Barton Gellman. Gellman is a Pulitzer-prize winning journalist with experience of both exposing and agreeing not to expose things the state would prefer the public did not know.

Regarding what are often called “core values”, Edward Snowden demonstrated an old lesson that authority worshippers often forget. You can trust your staff to stick to your official principles, or you can trust them to stay loyal and silent. You’re a fool if you think it’s possible for all of them to do both, all the time.

The NSA was criticised too many times in their secret courts, and went too far misleading their Congressional overseers. The only surprise was that when the leak happened, it was done in a such a skilful and effective manner. The NSA only themselves to blame that the truth was leaked; America is not defined by blind obedience and it was inevitable that an American would eventually rebel against authority for what they saw truly defending the Constitution.

Free

A classic example of the tension between freedom and safety is curfews. Curfews have been shown to reduce crime temporarily. As a free country, we have made a choice: we believe that the loss of freedom to a permanent curfew would be too high a price to pay. It may reduce crime, but it would also diminish the nation. It would not be protection but a universal punishment by a heavy handed state – and a punishment that plentiful good citizens would inevitably conspire to avoid.

It is the same in the debate on privacy and surveillance. Blanket surveillance by the state, and the loss of rights against corporate abuse, would be a terrible loss of privacy. It would surrender every aspect of our personal lives to massive public and private organisations to monitor as they see fit.

Whether it’s hacking a phone in a missing person investigation, the intimidation of peaceful protestors, the tweeting of a home address by hackers to scare a woman – I am opposed to using a free press, pre-emptive crime prevention or vigilante justice as excuses to remove another’s privacy. Privacy should not be the price of going online.

On a day-to-day level, I am opposed to the subservient conformity of stating that those with nothing to fear have nothing to hide.

In our personal lives, I value privacy as part of how we grow and learn, and how we settle conflicts and let old wounds heal.

In business, I value the importance of concept of privacy to client confidentiality. I also think it helps innovation. Engineers and developers benefit from being left free to hatch and develop new ideas. New ideas can be lost to better funded competitors, or simply wilt under the (sometimes harsh) formal criticism that is essential to high quality work.

In art, I value the role of privacy in how artists can play with a new idea before revealing it to others. Art requires collaboration, but thoughts can be fragile and need a space to grow.

As a liberal, I cherish privacy as an essential part of pluralism. To respect free choice, others must be free live their lives as they please, as long as they cause no harm to others.

Conclusion

There are those who would proclaim any limitations on state surveillance as “damaging to national security”. There are those who decry holding the media or individuals to account for breaches of privacy as “censoring free speech”, while there are those who complain about any kind of surveillance as “breaking the internet” or “stifling innovation”.

Some number of ideologues and utopians aside, these concerns are made in good faith. All these voices should be heard; it is impossible to assure an individual’s privacy, freedom and security in all things. They must also continue to be heard, and not just acknowledged in a temporary listening exercise. In my view, however, the right to privacy is the one under most threat currently.

We should remember that the goal of the Home Office, GCHQ and the police is to defend our freedom, not just “national security”. It would be a great betrayal of our history to replace real freedom with Freedom-Lite: “All the freedom you can get by taking no risks at all”.

Our country’s history is full of stories of both defending freedom, and the magnificent things that happen in a country that values it. We should be proud to forever defend those principles at home and abroad.

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