In its recent report, Privacy and Security: A modern and transparent legal framework, the Parliamentary Intelligence and Security Committee pondered on the scale of public concern about digital surveillance:
“It is worth noting that this debate does not seem to arise in the context of the Agencies intercepting letters, or listening to people’s home or office landline calls. So what is it about the internet that makes it different? For many, the free and open nature of the internet represents liberty and democracy, and they consider that these values should not be compromised for the sake of detecting a minority who wish to use it for harmful purposes.”
A feature of the current controversy is its narrow chronology. The decades before 9/11 correspond to the medieval period and the centuries before the internet are lost in the mists of time. The legislation that controls the behaviour of the security agencies, particularly the Acts of 1989, 1994, and 2000, is generally seen as obsolete. And it is evident that the Intelligence and Security Committee has a limited grasp on the history of public attitudes to surveillance.
The last time Parliament devoted a specific report to the issue was in 1957, when a committee of three Privy Councillors chaired by Lord Birkett reviewed the interception of communications following the tapping of the phone of a barrister acting for a London gangster. It had no doubt that the practice was widely regarded as ‘inherently objectionable’:
“Whether practised by unauthorised individuals or by officials purporting to act under authority, the feeling still persists that such interceptions offend against the usual and proper standards of behaviour as being an invasion of privacy and an interference with the liberty of the individual in his right to be ‘let alone when lawfully engaged upon his own affairs.'”
The committee looked back to the period before electronic communication and found a counterpart to the concern about telephones in the controversy in 1844 when Robert Peel’s government was caught intercepting the mail of political exiles just after the creation of a mass postal system. It cited the opinion of the Home Secretary Sir James Graham that practice of opening letters was generally seen as “odious, invidious and obnoxious.” So explosive has the subject been since then that governments of every political hue have striven to avoid any form of Parliamentary debate.
Between 1844 and 2015 there has been a critical ambiguity in the deployment of “privacy” as the measure of what is attacked by the surveillance of communications. On the one hand it refers to the invasion of the personal archive. There is held to be a fundamental claim, embodied in the post-war declarations of human rights, to the protection of information relating to the individual. Revelations of interception are immediately framed in terms of theft and loss. Conversely the security agencies and their official sponsors seek to reassure the protesters that they are only obtaining “metadata”, not substantive knowledge about actual persons, and only assault the privacy of those seeking to commit serious crime.
On the other hand it relates to what Birkett termed “the liberty of the individual.” This refers to the basic settlement of liberal democracy that emerged during the eighteenth and nineteenth centuries. The monopoly of violence and limited powers in areas such as raising taxes were ceded to elected governments which in turn agreed not to invade the realm of the family and the conduct of public debate. The state deliberately refrained from knowing what its citizens knew and thought. In its full form, as expressed by John Stuart Mill, this category of protected information is the arena in which liberties are advanced and abuses checked. In this case it is not the substance of the information that is in question, but the ability freely to give voice to it.
Despite all the headlines about government-sponsored snooping into personal affairs, it is the second version of privacy and not the first that is the fundamental concern. In Citizenfour, the film about Edward Snowden, one of the leading digital activists, Jacob Appelbaum, captured the slide in terminology: “what people used to call liberty and freedom we now call privacy. And we say, in the same breath, that privacy is dead … When we lose privacy we lose agency, we lose liberty itself, because we no longer feel free to express what we think.”
Featured image credit: Rader Dish. Public Domain via Pixabay.