Demonstrators at the US Capitol in October
Read two former directors' defence of GCHQ
Freedom matters. The concept of liberty under the law was invented in Britain, instituted in the 1688 Glorious Revolution which finally curbed arbitrary monarchical power, and arguably reached its apogee in the protections afforded to American citizens in that admirable expression of advanced enlightenment thinking, the US constitution. Both the British and Americans, however, seem to have become horribly forgetful about the importance of their founding creeds and are at risk of losing the freedoms they no longer cherish.
The origins of American and British distrust of the over-mighty state lie in the mists of history. In Britain’s case, the need for a strong state was attenuated by the natural defence provided by surrounding water. The US never faced a foe on its own continent threatening its frontiers, unlike France or Germany. But whatever the reasons, both Britain and the US have operated on the important assumption that the state is the servant of the citizen, and not his or her master. You are free to do what you will so long as the activity is not against the law.
Perhaps the most obvious contrast with other traditions today is that neither the US nor the UK have identity cards, a feature of virtually every continental democracy, which set up a culture where officials are able to challenge anyone to produce their papers and defend their actions. In the case of the UK, it was a close run thing. ID cards were introduced as a wartime measure, and only finally repealed by the new government of Winston Churchill—a Liberal as well as a Conservative—in 1952 after a famous court case brought by a Liberal curmudgeon called Clarence H Willcock.
The case was Willcock versus Muckle, so named after the police constable who challenged Mr Willcock to produce his ID card as part of taking details of a speeding offence. Willcock refused on the grounds that the ID card had been introduced as an emergency wartime measure, and whatever else PC Muckle may or may not have been doing when he was patrolling his Finchley beat, he was not defending the state at a time of national crisis. In a judgement that resonates today, as we learn how extensive has been the snooping on the ordinary citizen by the US National Security Agency (NSA) and the UK’s Government Communications Headquarters (GCHQ), Lord Chief Justice Goddard said: “If the police had wanted to be able to find out what previous convictions a motorist had had, they should ask parliament for the necessary powers. They should not use a statute for a purpose for which it was never intended.”
Yet even if we put the best possible gloss on what the NSA and GCHQ have been doing, as revealed by Edward Snowden in the Guardian and the New York Times, they have been using statutes that were never intended to allow the wholesale scooping up and storage of citizens’ private communications by email and telephone. This represents the most extraordinary accretion of state power in our peacetime history, yet the reaction in Britain—less so in America—has been of a citizenry in somnambulation.
Due to Snowden, we now know that our spooks have been tapping into the fibre-optic cables through which the vast majority of communications flow, and dipping into their contents at will. The NSA through Prism, and GCHQ through Tempora, can intercept anything that travels over the internet, including social media like Facebook. The information can be stored for long enough to be analysed carefully. Storage costs are coming down so quickly that these capabilities will only increase.
An agent of the state can now sit at his or her desk and, after clicking on a drop-down menu setting out which exception to the Human Rights Act should be applied, target your home phone, email, mobile, and any of your logins to a web service and the sites that you have visited while there. This is far beyond the world of steaming open letters. It allows the state to know things about you before you may even know them yourself. It is not what you express on paper or on screen, but what you may only be beginning to understand. You are searching for information about mental illness. You have rung Alcoholics Anonymous. You have booked an appointment at a sexually transmitted diseases clinic. You occasionally ring the Samaritans late at night. You do not communicate for hours on end. The state can now know every person that you communicate with, when and how you communicate, and can get access to the content of those communications. Why bother putting someone under gumshoe surveillance? No need. Modern surveillance from a desk in Cheltenham knows your mind before you do, and before you may contemplate any action.
Let me put the case for complacency, all the better to attack it. The first line of the secret policeman through the ages, when challenged on whether powers are necessary, is to make the point that the innocent have nothing to fear. The simple formulation—“If you have nothing to hide, you have nothing to fear”—is often attributed to Joseph Goebbels, Hitler’s propaganda chief, but it is so reassuringly alluring that it is probably older.
It is palpably wrong. There is a whole range of human activity which is not illegal, and which is therefore no business of the busybody state, but which people want to remain private. The desire for privacy may be for noble or ignoble reasons, but that is irrelevant. That fundamental liberal principle—the individual has rights, and the state is our servant—must defend personal space.
Information is power, and it is not merely potential power for the state. What are the checks and balances on access to this information? What is to stop rogue employees from abusing information that they find? What indeed is to stop people outside the system from hacking into the system, stealing information, and abusing it themselves for their own ends? Just in case that seems far-fetched, we now know that 480,000 private contractors had access to the same level of information as Snowden, and neither GCHQ nor the NSA were aware that he had this information. How many other people have it, but are less public spirited and less motivated by the need for political safeguards? After all, Snowden has made off with some 58,000 pages of classified documents, downloaded from a desk in Hawaii. If the NSA and GCHQ cannot keep their own secrets, what conceivable guarantee can they give you or me to keep ours? What money will the rich and the powerful be prepared to offer poorly paid public servants for information that could embarrass and undermine their enemies?
If information is power, then the necessary consequence is that privacy is freedom. Any free society must value and protect the privacy of its citizens. Only totalitarians pry absolutely. This is surely one of the fundamental values that both the NSA and GCHQ are meant to be protecting.
The second line of complacency is to point out how much information private companies like Google, or indeed Tesco, know already from our behaviour. Google, for example, targets adverts at people based on an automated analysis of the content of their emails. I was recently involved in a discussion with a company about the relatively obscure practice of factoring (where a company buys your invoices at a discount, and collects the money itself). Within minutes of the first email mention, I was getting ads for factoring companies.
Nevertheless, there has been a substantial public debate in Britain about the responsibilities of companies for safe data storage, and there is an Information Commissioner who investigates abuse. We may give Google more information than we would like as a trade-off for the convenience of using their service, but that is at least a choice, albeit perhaps an uncomfortable one. No one has to sign up for a supermarket loyalty card that reveals the contents of your weekly shop. We may or may not have got the balance right with private data, but there has at least been an explicit debate, and there are mechanisms of redress and grievance which can be amended by parliament. An extraordinary feature of the Snowden revelations is the way in which both the NSA and GCHQ have avoided—and have actively sought to avoid—any public debate or explicit parliamentary or congressional approval. There is no parallel with the protections afforded to the citizen’s private data.
Indeed, GCHQ has boasted about its circumvention of scrutiny. In one Snowden document, it sets out an advantage of doing things in Britain compared with the US, due to its “more permissive legal environment.” Moreover, GCHQ and its users—the Home Office and the Foreign Office for its counter-terrorism intelligence—seem to have employed the most effective form of camouflage: hiding in plain sight. The Home Office has been busily attempting to persuade politicians of all parties that it desperately needs the communications data bill to give powers to the police to update their access to the who-calls-whom data currently supplied by BT and other landline and mobile companies. At the same time, the associated computer systems will cost £1.8bn.
This data is indeed useful to investigators, and more than half a million requests a year are made under Ripa, the Regulation of Investigatory Powers Act. The problem for the police is that increasingly communications are migrating to the internet, and to outfits that are not even in the UK (like Skype and Viber). The bill is therefore designed to impose a legal requirement to store metadata—the who-calls-whom data.
However, the officials—and ministers—involved in the Home Office bill never informed even senior members of the parliamentary committee that looked at the draft bill that GCHQ was doing this already. Two former chief whips—David Maclean, the Tory peer, and Nick Brown for Labour—have testified to their surprise that they were not informed.
What on earth was the Home Office doing, given that GCHQ was hoovering up emails and voice traffic in any case? The implication is surely that GCHQ is much less confident about the legal basis under which it is operating than it claims. In the US, there is a growing debate about the administration’s stretched interpretation of existing law—the “business records” provision of the Patriot Act. Congressmen question whether the executive can in reality interpret a provision designed for targeted surveillance of malfeasance into a catch-all for mass surveillance of the US citizenry.
In the UK, the reaction to these revelations has been beyond parody. The Commons’ Intelligence and Security Committee took a month to announce an inquiry, and we can already anticipate its conclusions. The committee is hand-picked by the Prime Minister, and only rubber-stamped by the Commons. All its MPs are paid-up members of the security establishment. Malcolm Rifkind is Chair, even though he had executive responsibility for the agency he is now overseeing when he was Foreign Secretary.
The Home Affairs Select Committee under Chairman Keith Vaz has succumbed to pressure from right-wing Tory MPs to investigate not the disastrous state invasion of privacy, but the behaviour of the Guardian in bringing it to our attention. And the Joint Committee on Human Rights, which includes peers as well as MPs, has remained bizarrely silent even though state aggrandisement at the expense of individual freedom falls squarely in its remit. None of them has yet addressed the basic question of who authorised this programme, and whether its legal basis is sound. With ID cards, it was the law which did much to force repeal in 1951. With Tempora, the civil rights NGO Liberty is taking a case to the Investigatory Powers Tribunal, but GCHQ has reassured its US counterpart that it has never lost a case before that body.
That leaves judicial review. Ken Macdonald, the former Director of Public Prosecutions, argues: “The question is whether the government had proper lawful authority for what they have done. It is potentially a subject for judicial review.” There is an overwhelming democratic interest in testing whether that decision was ultra vires—outside legal powers voted by parliament.
The Snowden revelations show that both the US and the UK have been encroaching on their citizens’ privacy in an unprecedented manner, and that the responsible agencies have done so without any public debate or legislative approval. There may, of course, be a need to balance the risks and rights, but there has been no attempt to do so, because there has been no debate. Indeed, we now know that GCHQ was afraid of a public debate about its remit and powers. In another leak to the Guardian, an internal memo detailed who the agency would put up to defend its secrecy, and stated: “Our main concern is that references to agency practices (ie. the scale of interception and deletion) could lead to damaging public debate which might lead to legal challenges against the current regime.” It also noted that the “scale of interception and retention required would be fairly likely to be challenged on Article 8 (right to privacy) grounds”.
Why has GCHQ been allowed to get away with this? British politicians seem far too easily seduced by the lure of the secret world into assuming that those nice, well-spoken people at MI5, MI6 and GCHQ are operating in the public interest, rather than their own. No other part of the public sector—with the possible exception of the Bank of England—has so little financial and parliamentary accountability. Nor is this solely a question of snooping on our own citizenry: the revelations about the NSA’s snooping on the phone conversations—and perhaps more—of allies have outraged public opinion. The German debate, now buttressed by the explicit example of interception of Angela Merkel’s calls, has taken off. This is not the sort of behaviour that one expects of allies, as Secretary of State John Kerry has belatedly admitted. It has done serious damage to the important sense of solidarity between democratic allies.
Why have politicians been such a soft touch when it comes to oversight of these agencies? Secrecy flatters if you are on the inside, even though much of the information which the agencies supply would struggle to find space in the “news in brief” column of the Financial Times. Secret information can also distort balanced decisions, because it is given greater weight than it deserves merely by virtue of its privileged status.
And then there is risk. As John Lanchester has pointed out, 53 people have been killed by terrorism in Britain since 9/11, and 26,805 people on the roads. Twelve years of terrorism have killed as many people as eight days on our roads. “Is that enough justification for the scale and extent of what is happening to our privacy?” he asks.
Politicians can rarely summon up the courage to argue such a calculus, because there is an implicit assumption in the public debate that the price of life is infinite. Who wants to be accused by a venomous opposition in the wake of a terrorist tragedy that they have blood on their hands? As a result, we make all sorts of stupid policy mistakes. Large investments are made in safety in one field to much higher standards than in others. And we are prepared to usher in an Orwellian state for fear of being accused of softness on terror.
The public consciousness is inured to deaths on the road: somehow people regard that as an acceptable price of the precious freedom to use a car. A death by terror is seen as different: to be struck down, as happened in London, by a bomb on a tube train where you may have been travelling retains the power to shock. A visual horror, like the attack on the Twin Towers, has the capacity to motivate political action on an unprecedented scale. Most draconian powers are passed by legislatures in the grip of public panic following a nightmare on prime time TV.
So the easy political answer is to go with the intelligence services’ flow. In any other area of the public sector, at least some critical faculties are usually brought to bear to ask whether this particular agency has its own agenda and its own interests. MI5, MI6 and GCHQ are treated differently. As the Prime Minister said, when questioned about spying on other European leaders at a recent summit: “The first priority of a Prime Minister is to try to keep your country safe, and that means not having some lah-di-da, airy-fairy view. It means understanding that intelligence and security services do an important job”.
Despite the hold that the intelligence agencies have traditionally had over the political realm, they have attempted to avoid a public debate about their powers and remit. Prism and Tempora, the intelligence services’ interception schemes, are an affront to all our traditions of freedom under the law, and not just a breath-taking invasion of privacy. The manner of their making is a stab at the heart of our democratic process. Our elected representatives—on both sides of the pond—need to insist on some answers before we sleepwalk into an alien world.
