Privacy: open up the debate
Critics of state snooping should stop appealing to human rights law
’58 percent disagree with the statement that the government can be trusted to keep their personal data secure.’ (1)
This statistic, taken from a recent Guardian/ICM poll on public attitudes toward privacy in the UK, provides a good snapshot of the privacy discussion today.
There is an encouraging reluctance to allow the authorities to monitor our lives. What is less encouraging is that this stems from people’s fear that the government will not be able to ‘keep their personal data secure’ – implying that the main problem with data retention is government incompetence, rather than asking what business the authorities have acquiring our personal information in the first place.
One of the most disturbing consequences of the terrorist attacks of 11 September 2001 was that the attacks legitimised a false counterposition between freedom and security. Governments with a longstanding interest in prying into our lives were allowed to present such intrusion as being in our interests, necessary to prevent future terrorist attack.
The distrust of the state which traditionally underpinned principles of freedom was turned on its head – so that rather than people seeking to protect their freedom from the state, the state purported to protect people’s freedom from other people.
So UK home secretary David Blunkett, addressing public concerns about privacy in a series of supplements produced by the Guardian newspaper under the banner ‘Big Brother’, argues that working out ‘how to strike the right balance between our privacy and our expectation that the state will protect us and facilitate our freedom is one of the most difficult challenges threatening us all’ (2). This may be a challenge for Blunkett – but for the rest of us, the solution is in fact very simple. Don’t expect that ‘the state will protect us and facilitate our freedom’, because it won’t.
The international broadside against privacy in the name of security is well documented in Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, this year’s edition of an annual report on the global state of privacy, conducted by the Electronic Privacy Information Centre and Privacy International (3).
The report describes how ‘almost every country that changed its laws to reflect the environment following September 2001 increased the ability of law enforcement and national security agencies to perform interception of communications, and transformed the powers of search and seizure, and an increase in the type of data that can be accessed’ (4).
Even in the USA, which has a relatively strong tradition of civil liberties, law was successfully used as a weapon against privacy after 11 September – for example, in the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act (5). Privacy and Human Rights explains how this law ‘codified the use of…internet surveillance technology, granting access to sensitive traffic data with only a court order rather than a judicial warrant’ (6).
Although the scope of these recent threats to our privacy should not be underestimated, we should remember that most had their origins prior to 11 September 2001. It was the Regulation of Investigatory Powers (RIP) Act, passed in the UK in 2000 (which had its own origins in earlier attempts by the FBI to expand US state surveillance (7)), that provided a model for the USA PATRIOT Act.
As Privacy and Human Rights points out, recent erosions of privacy are not ‘necessarily new; the novelty is the speed in which these policies gained acceptance, and in many cases, became law’ (8).
Even the freedom/security axis which handicaps today’s discussion about freedom is not entirely new. Long before US citizens were faced with the odd conundrum of their freedoms being taken away in the name of freedom, Europeans were faced with the same thing, in the form of human rights. As I have argued previously on spiked, human rights legislation gradually erodes our latitude to pursue our freedoms, by seeking to enforce those freedoms on our behalf (see Human rights RIP).
Human rights are a tempting weapon to use when campaigning for privacy, because they project a scenario in which the authorities and the privacy campaigner fight for a common cause. But the benevolence that this scenario ascribes to government and the courts – the same benevolence assumed by government when it invades our privacy in the name of our security – reveals the scenario to be a fiction. By definition, the authorities cannot do anything proactive about our privacy without undermining it.
Both the title of the Privacy and Human Rights report and its opening sentence – ‘Privacy is a fundamental human right’ (9) – give the human rights framework more credit than it is due, and confuse the diagnosis of the global state of privacy that the report attempts to provide.
This confusion extended to ‘Terrorising Rights: Privacy, Open Society and the Challenge of September 11’, a London conference held in September 2002 to launch Privacy and Human Rights. Simon Davies, director of Privacy International, introduced the conference as ‘the first opportunity we’ll have, with a level head, to assess the past 12 months since the 11 September attacks’. But whenever human rights were invoked, they knocked our level heads off-balance.
The prominent human rights advocate Geoffrey Robertson QC was concerned that since 11 September, the traditional presumption of innocence has been replaced by a ‘presumption of legality’, or ‘presumption that the state has acted lawfully’. Robertson contrasted this development with the human rights tradition of upholding the ‘right to resist state surveillance’. In truth, a ‘presumption of legality’ is inherent to the human rights framework, which empowers the authorities to set the legal terms on which freedom is exercised.
John Wadham, director of the human rights organisation Liberty (10), described how his organisation is currently challenging the UK government’s claim that in the wake of 11 September, the ‘life of the nation’ was threatened. In order to justify new restrictions on our freedoms, the government invoked Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which states that ‘in time of war or other public emergency threatening the life of the nation’, a government is permitted to ‘take measures derogating from its obligations under this Convention’ (11).
Article 15 of the European Convention is a prime example of the way that human rights legislation has the compromise of freedom built into it. Since there is no fixed definition of a ‘threat to the life of a nation’, Liberty is automatically on a losing wicket trying to defend freedom by haggling over definitions. At the meeting, I put it to Wadham that the blame for recent restrictions on liberty rests not just with government, but with the human rights legislation that enables government to rewrite restrictions on its own powers.
Wadham replied that to mount any practical campaign for freedom, one has to make use of the tools at hand. But when the tool at hand backfires on its user as often as human rights seems to do, this is meagre justification for continuing to rely on it.
Since privacy defined as a state-enforced human right cannot have the state as its enemy, it tends to set up business as its bogeyman. The Guardian’s recent series of supplements on the privacy issue, for instance, conjures up a terrifying picture of how a credit checking organisation ‘knows who you are, where you live, and where you used to live…who you bank with, who you have credit cards with and whether you have kept up the payments…if you have any court judgements against you, past bankruptcies or even voluntary arrangements with creditors’ (12).
But while there is a legitimate discussion to be had about the commercial management of personal information in an age of new technology, this is an entirely separate question from the limits that should be placed on state snooping. Granted, the two things can become confused in practice – for example, if the electoral register is sold to a commercial organisation. But even in that instance, the culprits are the authorities selling the information, not the companies buying it.
The research that has gone into the Privacy and Human Rights report, which catalogues erosions of privacy in 53 different countries, is phenomenal. But the report’s characterisation of privacy as a ‘fundamental human right’ – something which can be compromised in an infinite number of conceivable ways – leaves the state and the marketplace looking as though they pose equivalent threats to privacy. In fact, the two are very different.
Even when unscrupulous companies misuse our personal information, such misuse is motivated by fairly narrow business concerns. A telling passage in Privacy and Human Rights, which explains how ‘companies…sell, trade or share…information among third-party companies without the consumer’s expressed knowledge or consent’, goes on to note that ‘the perceived value of this kind of information is behind the stock market valuations of many dotcom companies’ (13). Companies are not conspiring to invade our lives, but rather are nervously trying to cover up their flimsy business models.
We can, and should, aspire to comprehensive privacy from the state. But our privacy from the marketplace is always qualified, because as long as we consume goods and services, then to some extent our private pursuits occur within the marketplace. Shoddy business practice deserves to be criticised, but lambasting the marketplace simply for using our personal information in pursuit of profit not only downplays the importance of privacy intrusions by the authorities. It implicitly calls upon the state to do more to invade our privacy, in order to protect us from other people and organisations.
Governments have been allowed to think about themselves in these terms far too much since 11 September 2001. David Blunkett urges us to ‘remember that the state can be a positive force, empowering and enabling people to shape their lives, a collective vehicle to achieve progressive change’ (14). This is the true voice of Big Brother, urging us to love him. We shouldn’t give him an inch.
Privacy advocates, and champions of freedom more broadly, have a crucial political role to play in the post-11 September world. The prominence these people have given the privacy issue in public discussion is welcome. But the discussion would be a clearer one, and the authorities would not have such a strong hand, if both human rights and the false counterposition of liberty to security were done away with.
Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).
Human rights RIP, by Sandy Starr
Online insecurity, by Sandy Starr
(1) Privacy fears revealed, Stuart Millar, Guardian, 7 September 2002
(2) Civic rights, David Blunkett, Guardian, 14 September 2002
(3) See the Electronic Privacy Information Centre and Privacy International websites
(4) Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, Part I (.pdf 781 KB), Sarah Andrews (ed), Electronic Privacy Information Centre and Privacy International, p22
(5) See Online insecurity, by Sandy Starr
(6) Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, Part I (.pdf 781 KB), Sarah Andrews (ed), Electronic Privacy Information Centre and Privacy International, p22
(7) See RIPping into our rights, by Sandy Starr
(8) Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, Part I (.pdf 781 KB), Sarah Andrews (ed), Electronic Privacy Information Centre and Privacy International, p27
(9) Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, Part I (.pdf 781 KB), Sarah Andrews (ed), Electronic Privacy Information Centre and Privacy International, p1
(10) See the Liberty website
(11) Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Council of Europe, Article 15
(12) This is your life, Patrick Collinson, Guardian, 7 September 2002
(13) Privacy and Human Rights: An International Survey of Privacy Laws and Developments 2002, Part I (.pdf 781 KB), Sarah Andrews (ed), Electronic Privacy Information Centre and Privacy International, p59
(14) Civic rights, David Blunkett, Guardian, 14 September 2002
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