Why I’m not angry about web surveillance (though I still don’t support it)

by Stephen Tall on April 2, 2012

Well, on the plus-side today has seen Lib Dems members united in a way I can’t recall since the heady days of the formation of the Coalition in May 2010. On the minus-side, it’s mostly been in disbelief and anger at the party leadership for appearing to sign-up to an extension of interception of communications (‘web-snooping’ as it’s become catchily known).

Plenty of Lib Dems are furious: Mark Pack explains why here. And Alex Wilcock expresses it with aplomb here (as have many others today).

I don’t feel angry. Not because I don’t care about civil liberties — I do — but because there are genuinely difficult and complex issues at play here which deserve and need rational thought, which I prefer to do with a clear head. In case there are others like me, here are my thought processes…

How do we secure freedom for our citizens?

Two statements are oft-quoted by Lib Dems on the issue of civil liberties. The first, which headlines Alex Wilcock’s post, is Clarence Henry Willcock’s declaration when he refused to show his identity card to a British policeman on 7 December 1950:

I am a liberal and I am against this sort of thing.

The second is Benjamin Franklin’s aphorism:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

They are both fantastic statements: Willcock’s gorgeously understated, stubborn chippiness when faced with liberty-infringing jobsworth bureaucracy, and Franklin’s ringing, grandiloquent warning to rulers looking for expedient sacrifice of principle for a comfortable life.

However, neither Willcock nor Franklin get us very far in this debate.

First, what Willcock was against — being required to show a card to authority for no reason other than to prove his existence to the state — is not what has been suggested: the end of the last Labour government put paid to that. Secondly, while being against something is quite often a useful way of defining your position it is not in itself sufficient: no opposition without proposition. The proposition ‘Do nothing’ is of course an option, but still needs to have an underpinning rationale.

Which brings me to Franklin, and — for me — the nub of this debate. Because the reality is that we — citizens, society, government — do trade liberty for security. We do it all the time. In order to safeguard our freedoms we have secret services and passport-checks and counter-terrorism units and border controls and so on. These are, to one degree or another, accepted as a necessary price to pay for our security from threats both internal and external. The key question — one which very often divides in politics, as we’ve so very clearly seen today – is where that line is drawn.

And that’s where I think some clear calm logic needs to be applied.

Not letting the buggers get us down

The government case in favour of extending interception of communications is straightforward: the law was created before the recent technological advances such as social media and smartphones and Skype, so all the new legislation will do is bring these communication methods into line with those that exist already for letter, email, phone etc.

There are two lines of argument against this, but they’ve often become conflated in the debate over the last 36 hours:

1) In principle opposition: quite simply, such snooping is wrong, period. In which case, we should follow the logic of this argument and advocate rolling back the law and prevent any other form of interception of communications. This would of course conflict with the Lib Dems’ long-held views that there should be more use of intercept evidence in courts to prevent detention without trial being necessary.

2) In practice opposition: first, internet service providers do not log details of every Facebook chat or Twitter DM as they have no need of the data to bill customers — so the government will have to pay them to provide it, something the ISPs themselves don’t much like, and which the Lib Dem conference voted against just a few weeks ago. A second, more significant, concern is that the data stored may reveal the content of the message — indeed that there may be no way at all technically of distinguishing between online traffic data and its content — which would be the equivalent of permitting the bugging of every person’s telephone as opposed simply to recording an inventory of which calls were made when and between whom.

For me, these practical objections are much more compelling arguments against the proposals, and why I couldn’t support them as they stand. But, to be absolutely clear, practical objections to the proposal are in a very different category to in principle objections — because practical objections may be surmountable if the technology is up to the job (or they may not be).

Whatever the actual proposals — still unknown — there are clear needs for safeguards, not only of any new proposals but also for the existing powers of communications interception which exist within the Investigation of Regulatory Powers Act (RIPA), 2000. Julian Huppert’s article on LibDemVoice offers a good list of which I would say the key is the first proposal:

ensuring that there shall be no interception of telephone calls, SMS messages, social media, internet or any other communications without named, specific and time-limited warrants.

These warrants — for any form of content disclosure to the authorities — must have (as they do now) an interception warrant approved ultimately by the Home Secretary, and overseen by the Interception of Communications Commissioner.

We need RIPA reform

There has been (and this is an understatement) huge negative publicity generated towards the Coalition — and specifically the Lib Dems as the Coalition’s most reliable guarantors of freedom — by the last couple of days’ news. So I want to conclude on a positive note: I genuinely hope the Government presses ahead with revising RIPA.

Let’s not forget amid the current sound and fury that this piece of Labour legislation is in desperate need of updating to prevent its casual use by councils as promised in the Coalition Agreement — for example, in order to prevent town halls misusing their powers to snoop on their own staff. Liberals have been campaigning for many years to reform RIPA — examples here (Chris Ward) and here (Terry Stacy) and here (Howard Sykes) — and it would be a shame to lose this chance to make a bad law better.