Questions for the UK government

Not everything set out by these leaks is new or unknown, but what is new is the confirmation of the existence of the programmes, and the pressure on governments to come clean and explain what they have done.

While governments can claim a need for secrecy around specific investigations, they cannot reasonably claim a need for secrecy around the programmes they initiate. By making such a massive operation secret, they have undermined the rule of law, denied us democratic accountability and breached legal commitments to human rights that have been made in public to the peoples of other countries.

The position seems to be that the UK government believes it can wiretap whatever it likes, so long as the tapping takes place outside of the UK (ie, the tap is placed on an undersea cable a few miles west of Bude) and involves communications that are not simply UK citizen to UK citizen.

Making this apparent to the political class, reversing the situation, and introducing genuine accountability will not be easy, but is vital. Here are some reasons why we need an unparalleled outbreak of political honesty, to live up to the opportunity that Edward Snowden has given us.

Senior politicians have misled Parliament and the public

Tempora was implemented under Labour, and has carried on under the Conservative-Lib Dem coalition. Some senior politicians including Jacqui Smith, Alan Johnson and Theresa May failed to inform the public and the vast majority of Parliament about Tempora. William Hague has been guilty of making similarly bland justifications and reassurances following revelations about PRISM. MPs should be especially wary of the executive’s justifications for Tempora. They have the most to lose, personally and politically.

However, the members of the three parties, their democratically elected committees and the delegates to their conferences did not know of these programmes. It is also highly unlikely that many MPs knew and it is even probable that many former and current ministers were never told about the programmes. Creating and continuing with Tempora will have been a decision taken by a very narrow group of people.

This places the UK’s political class in a troubling situation, and they badly need guidance from the public.

Malcolm Rifkind and the Snoopers’ Charter cheerleaders

Malcolm Rifkind chairs the Parliamentary committee responsible for overseeing the intelligence agencies, and has recently shown himself to be very much a willing hand of the Home Office. He has reassured everyone that these programmes are highly likely to be working within the law, and recording everyone’s communications is nothing to worry about, since there is too much to read. In essence, Rifkind believes, if you have nothing to hide, you have nothing to fear.

Even four hundred years ago, Cardinal Richelieu understood that this was not a compelling argument:

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.

and he was hardly a major proponent of universal human rights.

Given Rifkind’s beliefs, can we trust his leadership of the Intelligence and Security Committee to guide the only major inquiry that is currently planned by the UK Parliament?

Rifkind is a particularly powerful example of a kind of UK politician that makes a habit of justifying secret service and Home Office demands. He was one of the first people to argue for the return of the Snooper’s Charter. Others, including Lord Carlile, Lord Reid and Jack Straw have been wheeled out to make the same arguments, as if their experience implementing hardline rollbacks of civil liberties in some way made them the right people to explain to us why we need to trust the secret state. Their credibility is shattered.

Foreign policy

The UK is a major gateway for Internet traffic cross the Atlantic. The volumes of traffic are immense, and provide a major wiretapping opportunity

The UK government clearly thinks it benefits from being close to the US intelligence and helping out by providing such access to them.

Both the UK and the USA need to ask if it is reasonable to use their positions to surveil global communications without regard to individuals’ inalienable human rights, or other nations’ and allies’ legitimate interests. We cannot reasonably expect other countries to behave better, if we do not ourselves. Our position also seems to be at odds with our human rights commitments, which is angering many very reasonable countries, such as Germany.

Damage to the Internet economy

The global Internet economy has become more centralised, with a great deal of data being handled and stored by a few US companies, such as Facebook, Apple, Microsoft, Yahoo and Google. This, as Tim Wu observed at ORGCon, makes them easy to compel. Surveillance benefits from this kind of centralisation. This centralisation is also reflected in the small number of entry and exit points for Internet communications. Such ‘choke points’ increase the ease of surveillance.

However, the confidence of the public and businesses depends on a sense of trust. This balance has been thrown by the Snowden revelations. Internet privacy is not an abstract concern.

Surveillance from the USA and UK will include gathering intelligence for their ‘economic wellbeing’. Why should either nation be trusted when companies think about choosing ecommerce and cloud services? The ‘national interest’ of the UK and USA could easily override the privacy and security of a company based in Germany or France. Taking such an approach is surely bad for business.

Who is really threatened?

There are many threats to individuals from accessing data. These can include:

1. Businesses, who may be communicating confidential information of interest to competitors;
2. Businesses who are specifically competing against businesses in the US or UK, when our governments regard their competition as against our ‘national interest’;
3. Journalists, who need to communicate privately with sources;
4. Whistleblowers, especially those who act against the will of their government – think of Daniel Ellsberg perhaps;
5. Anyone whose personal position could be leveraged by security services for their benefit;
6. Members of groups like Anonymous;
7. Everyone, as our data might be leaked to a third party against our will

The wider threat is to our democratic culture. If people fear being listened to, or becoming of interest to security services, then they change and limit their behaviour. This is a loss to the whole of society, whether or not you think the specific threats are likely to affect you.

What needs to happen

Everyone should think about how we rein in the security services. Some of the things that are needed include:

1. The EU draft Data Protection Regulation must allow people to control their data, so they can manage the security threats to their personal data. It should reinstate Article 42, which requires data disclosures from companies should be governed by international agreements.
2. Transparency calls in the USA must be heeded, immediately
3. UK law must be revised to remove indiscriminate data collection
4. US and UK surveillance activities must be brought into a transparent international legal framework