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SUNDAY Series® | Zero privacy

The British government is taking extraordinary new powers to monitor everyone’s emailing, internet browsing and phone calls

BIG Brother 1984
The recent report by the Interception of Communications commissioner, Sir Paul Kennedy notes that 519,260 requisitions of communications data from telephone companies and internet service providers were made in Britain last year. It is very mysterious who is doing the bulk of this spying, since no statistical breakdown is offered. But Sir Paul suggests the procedures may be a bit much for local authorities and things ought to be made easier for them.

The Home Office is busy doing just that. It is shortly to compel telecoms companies and internet service providers to keep details of all your emailing, browsing and phonecalls for up to 24 months. And it will specify in what form the information is to be kept. It is heartening that press and public have woken up to this snoopers’ charter just as the final piece of the picture is hammered into place. It is being introduced in the form of a Statutory Instrument enforcing an EU directive – which means it is unlikely to be even debated in parliament and cannot be amended by our elected representatives. Perhaps that is why this is being released while MPs are on holiday. They don’t matter to the process.

The Home Office is taking the maximum powers allowed under the directive – which shouldn’t be a surprise, as the directive itself was inspired by lobbying from Charles Clarke in the council of ministers when he was home secretary. The minimum six months’ retention is probably what we will see in Germany, which resisted the exercise; the Home Office is taking powers for four times as long.

All this is the logical pursuit of the path set out in the Regulation of Investigatory Powers Act 2000, and most of the debate is founded on the false premise that this was a special anti-terrorist power that somehow got out of hand when councils started using it to pursue litterers. It just isn’t true. RIPA was always a snooper’s charter, as the Guardian noted at the time. Its function is to provide a bureaucratic mechanism by which hundreds of different official bodies from MI5 to Ofcom can authorise their staff to use surveillance. It is purposely obscure and hard to challenge.

The Interception Commissioner doesn’t exercise direct oversight of individual cases. He could hardly do so for half a million of them.

Read his report and you’ll see he is only interested in how well the relevant bodies are maintaining procedural propriety by following official Codes of Practice. He’s not the only one who thinks surveillance should be easier. The Telegraph reports:

To free up police time the Conservatives would axe the requirement for RIPA clearance for CCTV surveillance, using automatic number plate recognition software and public surveillance of a building. RIPA authorisations would also not be required for commissioning covert recording or bugging of a house or car, or using thermal or x-ray surveillance of a building.

Dominic Grieve, the shadow home secretary – who I thought was a man of liberal principle – is quoted as saying: “It is not right that we charge our police with combating crime and disorder and then tie their hands behind their backs in the name of Whitehall bureaucracy.”

This is embarrassing claptrap from a man who knows better. The answer to the over-bureaucratic control of surveillance is not to scrap control, but to give it to the courts. If a policeman wants to look in your desk drawer without your knowledge he needs a good excuse, and probably a warrant. Looking at your browsing or your phone records reveals at least as much private information. Doing it secretly is not very different from burgling your house. It is a personal violation that needs strong justification and strong oversight. To me that means a judicial warrant.

Rather than “continued discharge of the functions of any public authority whose activities include activities that are subject to review”, a system is needed that would serve a real public interest in liberty and privacy. Not some broad-brush review of bureaucratic activities, not qualified and approved in-house assessors of procedure and proportionality, but a court to decide on the merits of each investigation before surveillance was authorised. Given fair warrants we need not rely on the telecoms providers appealing to surveillance tribunals behind closed doors, nor would there be such a good excuse for mass surveillance on the pretext of making life easier for everyone involved. It would be clear that this is a serious matter and only permitted for good reason.

In 1999 the president of Sun Microsystems, Scott McNealy, famously said: “You have zero privacy anyway. Get over it.” That caused outrage. But the context was technological capacity and consumerism. It wasn’t a moral statement about how to run the world. A decade on, UK legislators and officials apparently see zero privacy as a legitimate aspiration of government. They are wrong.

Guardian-Guy Herbert
Guy Herbert
guardian.co.uk, Wednesday 13 August 2009 21.30 BST

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