David Omand, writing in yesterday’s Guardian, says we shouldn’t be surprised to discover our intelligence services are working with the Americans, and that it’s a good thing they are. He is right. But that does not mean we should allow a friendly power (even our most friendly one) to intrude on our citizens’ privacy in ways they would not permit with their own.
He says this is all OK because it’s only computers processing our data and humans will only see what they program computers to show them. But who writes the programs? He says we can be reassured because our governments are operating under the rule of law. But what if, as I believe, the law we have is an utterly defective one? Omand proposes six new principles which should, he says, 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 once watching Post Office experts steaming open letters. It had been done for a hundred years and more. The practice was (and 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 that this power is subject to stringent safeguards.
First, that this power is used specifically and in an individually targeted manner. Fishing expeditions are not allowed. Nor is it permitted to hoover up the communications of all citizens, or all citizens in a specific class – Muslims, for instance, or EDL members, for that matter – on the off-chance that those who protect us might stumble across something of interest, or which might possibly be of interest at some time in the future.
Second, 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 third, granting this power must be subject to a warrant given by a third party, preferably a judge, but possibly a minister responsible to parliament who is outside the organisation 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 those who would threaten our security have moved to new forms of communication, such as email 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 one would permit this to happen unless that power remained subject to the same safeguards as before.
It is not the widening of the field of intrusion that is objectionable here, it is the weakening of the safeguards that 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 – that is, 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 that apply to the first might be set at a lower level than those that 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 Labour government allowed the intelligence organisations the power to vacuum up all types of what were then the most modern forms of communication in direct and flagrant breach of all 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 ministers when this law was brought in – that all we need to do to make ourselves safe is to update the current law to cope with even newer new technologies.
But this is not just an opportunity to bring up to date what we already have. It is an opportunity to amend it so that at last the laws on the right of governments to intrude into our private communications conform with the basic principles that have always applied 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 abandoning long-established principles, but by reasserting them.
Paddy Ashdown was high representative for Bosnia-Herzegovina from 2002 until January 2007. He is Unicef UK president.