In a speech to the Royal United Services Institute yesterday (the text of which can be found here) Foreign Secretary Phillip Hammond suggested that the debate over privacy and security, over mass surveillance and the role, tactics and practices of the intelligence and security services, was nearly over. In his words, after the current reviews by the Intelligence and Security Committee (the ISC) and the Independent Reviewer of Terrorism Legislation, both of which are due to report shortly, “we should draw a line under the debate”. I have one simple and direct response to that. No, Mr Hammond, it isn’t time to ‘draw a line’. The debate isn’t over: it has barely begun.
In his speech, Hammond highlights and praises the role played by the ISC. As he puts it:
“I regard the independent scrutiny and oversight that the ISC provides as a particular and significant strength of the British system.”
Is he talking about the same ISC that put on a public show in November 2013, a public hearing that was little more than theatre, carefully scripted, where the anodyne questions were given in advance to the heads of MI5, MI6 and GCHQ so that they could prepare the answers? The same ISC which failed to notice that, as ruled by the Investigatory Powers Tribunal last month, GCHQ had been acting unlawfully in its surveillance activities for seven years? The same ISC whose chair, Sir Malcolm Rifkind, cheerfully admitted to me at a round table event that formed part of the aforementioned review that he did not understand the most important piece of legislation governing interception and surveillance, the Regulation of Investigatory Powers Act. That same Sir Malcolm Rifkind who had to resign from his position as Chair of the ISC for being duped into offering his services to a fake Chinese company – and even now does not seem to acknowledge that in his position taking a role for a Chinese company might provide some sort of conflict of interest?
No, Mr Hammond, the ISC does not provide the kind of ‘independent scrutiny and oversight’ that is needed – indeed, we don’t just need a review by the ISC, we need a full review of the ISC, so that it has some degree of real independence, so that it has the ability and knowledge, the understanding of the technology and the law that is needed in order to provide real ‘scrutiny and oversight’. Right now, it isn’t a ‘particular strength of the British system’ but very much the opposite. Its existence might suggest we have oversight: in practice, we really don’t.
And how can we draw a line under the debate when even the terms of that debate are still confused? As I’ve written before, the characterisation of the debate is – either deliberately or ignorantly – miscast. Rifkind characterised it as ‘individual privacy vs collective security’ – failing to grasp either that privacy is far from an individual right (indeed, its main function is one about relationships between people, and it underpins collective rights like freedom of assembly and association, and indeed freedom of expression) or that it isn’t really a ‘balance’, or that people want one or the other. People don’t want privacy or security – they want both, and they should be able to have both.
Phillip Hammond continues this mischaracterisation in his speech, referring to the “balancing act between the privacy we desire and the security we need”. No, Mr Hammond, privacy isn’t something we ‘desire’ – it’s something we need. It is a right, a right reflected in all the significant Human Rights documents, and in the Universal Declaration of Human Right and the European Convention on Human Rights in particular, both of which the UK is a party to. A qualified right, of course, but a right nonetheless, and to portray it as something we ‘desire’ is to downplay its significance, something that advocates of authoritarianism appear very keen to do. Privacy isn’t a selfish whim, it’s a fundamental right – and privacy on the internet is becoming more, not less, important these days as we spend more time and put more of our lives online. It is not something to be downplayed, but something to be taken more and more seriously.
So, Mr Hammond, no. No line can be drawn under the debate. As well as the two reviews mentioned in the speech, there are a whole series of legal challenges to the various activities of the intelligence services and others, not just in the UK but all over the world. The debate is only just starting – and if you expect privacy advocates, civil liberties advocates and others to stop campaigning, I’m afraid you’re very much mistaken. Others have recognised this – last Friday I was part of a seminar organised by the Association of Chief Police Officers into the ethics of policing the internet, the debate about which the police believe is only just starting.
Indeed, no line should be drawn under the debate: these debates need to continue forever. The watchmen need to be watched. The price of liberty is eternal vigilance – and that includes vigilance over the authorities, not just by the authorities.