We’re no longer citizens, we’re suspects
The new Communications Data Bill continues the trend away from privacy to giving the state full access to our private lives.
Following complaints in the halls of Westminster over the past week, UK prime minister David Cameron announced yesterday that the Communications Data Bill will have to be redrafted. The bill – which would have granted draconian, almost open-ended snooping powers to the home secretary to monitor our communications – will now have to be rewritten with greater ‘safeguards’ to protect our privacy.
We should be clear that the retreat on this bill has little or nothing to do with a commitment to safeguarding privacy. Undoubtedly, it is an affordable concession by the Tories to the Liberal Democrat leader Nick Clegg, who indicated that his party had ‘serious concerns’ around the scope of the bill. Clegg’s concerns were typical of the governmental furore over the last week, which has been narrowly focused on the scope of the powers granted under clause 1 of the bill, but which has said nothing about its stated purpose: to facilitate greater disclosure of data from private companies to the state.
The anticipated powers under clause 1 were absurdly broad. It would have given the home secretary an almost open-ended power to make orders, outside the scrutiny of parliament, requiring communications companies to retain and provide communications data. It would have allowed for disclosure of an absurd amount of information regarding our communication, even down to the device upon which a communication was made (assuming this information is available).
But because the criticism of the bill simply targeted the scope of these ludicrously wide powers, it is likely that the redraft will simply reflect the recommendations of the cross-party committee which scrutinised the bill. The committee, in a report published last week, recommended that the power under clause 1 be restricted in order that the home secretary only be granted the power to make orders through the ‘super affirmative’ procedure. This means that the minister will have to go through more parliamentary committees if he or she wants to extend their own powers under any future act.
The fact that the Home Secretary, under the committee’s recommendations, would have to go through parliament to widen the state’s powers to snoop, is cold comfort when you consider the state’s form for expanding its own surveillance powers. The Regulation of Investigatory Powers Act (RIPA) 2000 gave enormous powers to public bodies to collect and retain our private data. The list of ‘public bodies’ authorised to apply for data under the act was initially small, but has now grown, through orders of the home secretary, to over 300 different organs of the state. If the 12 years of RIPA’s lifespan have taught us anything, it’s that the state will happily expand its ability to snoop into our data, whether it be under the scrutiny of parliament or otherwise.
If our representatives were serious about protecting our privacy, they would need to get down to the more serious business of reversing a legislative trend, which has unfolded over the past decade or so, towards intruding on individual privacy. RIPA marked a turning point in the law’s relationship to privacy. It embodied the New Labour mindset to legislating around our data: namely, that as long as you have nothing to hide you have nothing to fear. It became accepted that the law could be used to monitor civilians as part of the state’s duty to keep us safe from terror. It was telling that this week, the Conservative justice minister James Brokenshire defended the Communications Data Bill on the basis that it would ‘safeguard children’, an obvious and cynical attempt to ride the modern official panic around child abuse.
The fact that criticism of the Communications Data Bill was so narrowly focused on the wide scope of the powers it granted to the home secretary shows how the state has internalised the New Labour approach to regulating privacy. We have moved from a position, prior to the passing of RIPA, where the disclosure of data by a person running a communications company was, prima facie, a criminal offence, to a situation where we anticipate a legal obligation being imposed on telecommunications companies to generate and retain data solely for the purposes of disclosure to the state. This speaks to a gradual but colossal erosion of official respect for our privacy.
We can be sure that any tweaks to the bill that emerge following the recent furore will do little to reverse the impact of RIPA and its offspring. Today, disclosure of our data is the norm where it was once the exception. Today, the state has internalised the New Labour idea that privacy is secondary to the all-pervasive need to protect us citizens from ourselves. The only acceptable ‘redraft’ of the Communications Data Bill would be to rip it up, along with RIPA and the reams of anti-terror legislation that followed, which have gradually turned us, in the eyes of officialdom, from a nation of citizens into a nation of suspects.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
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