A ‘mature debate’ on surveillance? Yes please!

Andrew Parker, the head of MI5, has said in a speech that he is hoping for a ‘mature debate’ on what he calls ‘intercepting communications data’ rather than surveillance: I’m sure that most people working in the area would very much welcome such a call. I know that I do. Mature debate is exactly what is needed. The question that immediately springs to mind is whether what Andrew Parker means by ‘mature debate’ is the same as what I would understand by the words. The record of the intelligence and security services and the government in relation to such a debate is not a very convincing one: it has been those who challenge surveillance powers who have shown more desire and willingness to debate than the services and their masters in government.

To suggest otherwise – indeed to hint that those challenging them have behaved like petulant, hyperbolic children – flies in the face of the experience of the last few years. There has been hype on both sides, of course – I can see why Parker and others dislike the term ‘Snoopers’ Charter’, for example – but on the other side the claims have been equally lurid and offensive: the suggestions by Theresa May and others that privacy advocates have ‘blood on their hands’ for opposing new powers have been regular and repellent. The record of seeking debate, however, has been distinctly one-sided. Back in 2012, when the coalition government first put forward the Communications Data Bill – dubbed by its ‘hyperbolic’ opponents the Snoopers’ Charter – the intention was to push it through without any real debate at all. Indeed, the hints were that it would be passed in a matter of weeks before the London Olympics. It took a lot of pressure to force the bill into proper scrutiny, and a special Joint Parliamentary Committee was eventually formed to examine it. Debate was very much sought by those interested in interception and surveillance powers: over 600 pages of written evidence was submitted to the committee from more than 100 witnesses (including myself). So yes, we want mature debate, whenever we get the chance.

That first batch of ‘mature debate’ did not get the results that the proponents of the Communications Data Bill wanted: the report of the Joint Parliamentary Committee was highly critical, and after the intervention of the then Deputy Prime Minister, Nick Clegg, the bill was dropped, with a promise of further debate and a new Bill to scrutinise. That new Bill, however, never materialised (though I understand that it was drafted) and neither did the promised further debate. Again, it was not those who challenged surveillance and interception that were avoiding the debate. Very much the opposite: we wanted more information and more debate, and our questions were largely fobbed off.

That debate, however, began to happen even without the participation of the intelligence and security services, when in June 2013 Edward Snowden dropped his bombshell on the whole business. The debate that followed might not have been mature at all times, but it was a debate – despite the efforts of the intelligence and security services, not because of those efforts. Indeed, most of the efforts seemed to be to shut down the debate, to shut Edward Snowden up, along with those in the media who worked with him, arresting them at airports, smashing their hard drives and so forth. Keith Vaz questioning whether Guardian Editor Alan Rusbridger ‘loved his country’ was a particularly mature part of this debate. All this was accompanied by yet more mature suggestions about opponents of surveillance having blood on their hands. The maturity level was immense.

Then, when the mature debate actually began – the three big inquiries, from the Intelligence and Security Committee, the Independent Reviewer of Terrorism Legislation and the Royal United Services Institute – along came the next attempt to shut down that debate: DRIP. The shabby process through which the Data Retention and Investigatory Powers Act was rushed through parliament in a matter of days without any opportunity for public debate and only a few brief hours of parliamentary debate – in a mostly empty chamber with MPs preoccupied with preparations for the forthcoming election – was about as far from opening up to mature debate as could be imagined. Barely a debate at all, let alone a mature one.

Even after that, there was a further attempt to force through legislation without debate – four members of the House of Lords, all associated in the past with the security side of government, tacked on pretty much the entire, rejected Communications Data Bill to the back of another bill, very late in the parliamentary process, to try to sneak in those powers once more without debate.

So, Andrew Parker, let’s have this mature debate. Please. As soon and as deeply as we can. But don’t pretend that you’ve been seeking it all along, or that those who are challenging you have wanted anything else. What is more, let’s make sure it is a mature debate, and not the sort of ‘debate’ that happens when one side has all the power and has predetermined the result, like a parent telling a three-year-old what the rules are for their behaviour. A mature debate must leave a chance for different results. In this case in particular, mature debate does not mean a Brian Clough style discussion where you tell us your opinion, we tell you your opinion, and we agree that you are right. There has to be a possibility – and you have to be open to this possibility – that the powers of the intelligence and security services are in practice (as well as in law) curtailed. If there is no possibility of change, the debate – mature or immature – is meaningless.

Are you ready for this kind of debate? I hope so. Let’s have it as soon as we can.

MPs, privacy and the Wilson Doctrine

A ruling of the Investigatory Powers Tribunal in the case brought by MP Caroline Lucas, peer Baroness Jones of Moulsecoomb and former MP George Galloway, has effectively confirmed the death of the Wilson Doctrine, which was thought to protect the communications of MPs and members of the House of Lords. Indeed, to a great extent it confirmed that this doctrine had always been a bit of a fiction, despite being confirmed at various stages by Margaret Thatcher, Tony Blair, Gordon Brown and Theresa May – the latter as recently as July this year. ‘Obviously,’ Theresa May told the House of Commons in the all-too-short debate that made up the shabby process that pushed the Data Retention and Investigatory Powers Act through Parliament in double quick time, ‘the Wilson Doctrine applies to parliamentarians’. And yet, in practice, it doesn’t and it didn’t.

What does apply, as the Investigatory Powers Tribunal details, is a set of codes of practice and guidelines that are intended to govern the interception of communications in general, and which have some specific mentions of Members of Parliament. That these codes of practice have only come into the public eye recently – and in part because of legal actions taken by NGOs Liberty and Privacy International – and that they have unclear (and probably non-existent) legal enforceability, and some exist only in draft form just adds to the lack of clarity in the area. There can (and will) be many technical discussions about the ruling and its precise implications, but I do not propose to go into them here. Instead, I want to look at the bigger questions. The only overall conclusion that can be drawn from the ruling is that the Wilson Doctrine is effectively dead. The biggest question is whether that matters in any real way.

Do MPs deserve special protection?

It would be fair to say that MPs do not have a great reputation these days, if they ever have. They’re rarely considered honest or trustworthy, suspected of feathering their own nests through the expenses system, of being in the hands of lobbyists and largely only in it for themselves. There is a tendency to think that rather than their deserving more privacy than ‘ordinary’ people, they deserve less – they should be more open to our scrutiny than they are, more exposed to the public, given that they are supposed to be serving the public.

There is certainly an element of truth in that – and things like the exposé of Malcolm Rifkind and Jack Straw’s lobbying activities seemed to receive a good deal of public support, even if the Commons Standards Committee ultimately exonerated them. And yet MPs communications do matter, and there are some very good reasons to give them special protection. The principle point isn’t to protect the MPs themselves, but the people who are communicating with them. When people contact their MPs, they are often in a vulnerable position. They might be whistle-blowers, they might feel themselves in danger – what they are very likely to be doing is seeking help, and have nowhere else to turn. One of the key points about the Wilson Doctrine is not – or should not be – to protect MPs’ shady dealings with lobbyists or worse, but to protect the individual, vulnerable people who wish to communicate with them.

It’s easy not to feel sympathy for MPs. Indeed, it’s easy to feel anger, frustration or worse towards them – but they do play a critical role, and they are supposed to represent us. In that role, they need special protection, just as lawyers need special protection when communicating with their clients, and journalists with their sources. The point isn’t to protect the lawyers or journalists, but their clients and sources respectively.

Modern surveillance

One of the arguments that underpins the IPT’s ruling is that modern surveillance is different from that which existed in Wilson’s days – and that the oversight of that surveillance and the rules that govern it are better than what existed in Wilson’s days. The current system, according to this logic, the one based around the somewhat notorious RIPA, provides more oversight, more accountability and more transparency than has been seen before. As expressed in the ruling (para 34):

“MPs’ communications with their constituents and others are protected, like those of every other person, by the statutory regime established by Part 1 of RIPA 2000. The critical control is the requirement for a Secretary of State’s warrant, which can only be issued if the requirements of Section 5 are satisfied. That regime is sufficient to protect such communications and nothing further is required by the ECHR.”

It is a system that as the IPT points out has been found to be generally satisfactory by the European Court of Human Rights – though they do not note that the case in which this was found, Kennedy, was in 2011. This, critically, was before the revelations of Edward Snowden that ultimately suggested that our surveillance system is very, very different from what we (and presumably the ECtHR) thought it was.

Indeed, this latter point is really the key. Yes, since Wilson was PM we have a more detailed and rigorous legal regime surrounding interception of communications – but we also have a vastly different degree of interception going on. The number of ways that this interception goes on is enormous, and the arguments concerning it have not be resolved in any satisfactory way. Does interception ‘happen’ when data is gathered, or when it is accessed? Does gathering of meta-data constitute interception? Does algorithmic analysis of such data matter, or should we only be concerned when human intervention occurs? All these questions and many more are still very much under debate – to assume that the situation is clear and simple is to fundamentally misunderstand the current state of affairs. Even in the last few weeks, with the monumental invalidation of the Safe Harbor agreement, the US and the CJEU have disagreed fundamentally about what constitutes ‘indiscriminate surveillance’.

Further, the legal regime for surveillance, as review after review in the last year has pointed out, has not kept up with the nature of the surveillance, and the oversight has been revealed to be far, far less effective than it might be. The Intelligence and Security Committee has demonstrated itself to be little more than a rubber stamp body, engaging in little more than political theatre at times. Do we have effective oversight? The jury, I would say, is very much out on this: the clearly recognised need for reform of the laws governing surveillance puts it in severe doubt. The admission of the effective non-existence of the Wilson Doctrine makes this even clearer.

The need for reform

That puts yet another little bit of pressure on the need to reform. The forthcoming Investigatory Powers Bill is due to be published very shortly – will it have anything about the Wilson Doctrine in it? A parliamentary debate has been scheduled for Monday, specifically about the Wilson Doctrine, and I would hope that the question of whether to have anything specific about the Wilson Doctrine within the new bill, or within codes or regulations referred to in the bill, would be one of the issues discussed. Personally, I think our political representatives do need special protection, as do lawyers and journalists, but I think we all need more protection than we currently receive. I would also hope that the minds of MPs are focussed by a debate that actually impinges on their own activities, and that they can learn from this why all of us need and deserve privacy.

In praise of U-turns…

There have been two big political U-turns today – even if one of them seems not to be regularly described as a U-turn – and both are good news.

The first is from the Labour Party, who have decided to oppose George Osborne’s so-called ‘Fiscal Charter’ after all, to much distress and derision in much of the media. The second is from the Conservative Party, in their role as the ruling party, who have decided to withdraw from their contract to supply a training programme for Saudi prisons. Despite being described somewhat differently in the media, the two have some striking similarities.

Both are direct changes of heart. Both involve some distress within the parties concerned. The Parliamentary Labour Party meeting at which the new Shadow Chancellor announced his decision was described as ‘a total fucking shambles’, whilst Defence Secretary Philip Hammond is reported to have accused Michael Gove of naïveté in cancelling the Saudi contract, and raised the issue in the National Security Council.

And yet both ‘U-turns’ are good news. In both cases a previous mistake has been corrected, and a better policy decision has been reached. That’s the thing: U-turns are good ideas when a bad decision has been made. And in politics, many bad decisions are made – so very often the dreaded ‘U-turn’ is actually a good idea. Sometimes it’s needed because more information has come to light. Sometimes it’s because circumstances have changed. Sometimes it’s because a new option has emerged. And sometimes, as in both of these cases, it’s because the original decision was a very bad one. In Labour’s case, John McDonnell may well simply not have understood the nature of Osborne’s trap – Labour has a long history of falling into the traps set for it, sadly, partly through the kind of naïveté that Philip Hammond apparently accused Michael Gove of, and partly because the Tories have been very good at setting traps from which there is no obvious escape. Here, though, John McDonnell had a way out, and, eventually, clumsily and shambolically, he took it. Some have said his change of heart came after talking to the people about to lose their jobs in Redcar, but in the end it doesn’t matter. What matters is that he has changed his mind, and been strong enough to do the necessary U-turn.

Gove’s U-turn is equally admirable – and I say that as someone who has been far from a fan of Gove (!) over the last few years. In his case, the change of mind may have been prompted by the public outcry, the balance tipped by Jeremy Corbyn, or some other reason – or it may just have been that he is more of a decent, principled man that his predecessor Chris Grayling or his cabinet colleague Philip Hammond. Again, in the end, it does not matter – what matters is that Gove, too, has been brave and strong enough to do the necessary U-turn.

And that is the point. It takes guts to do a U-turn: the easy option is to be stubborn, to be seen to be ‘strong’ and ‘consistent’. It takes more strength to dare to change. Now neither McDonnell nor Gove have gone quite that far – neither of them is admitting that this really is a U-turn, that the previous policy – their previous policy – was wrong. It would be great if they could, but the media attitude to U-turns is so poisonous that admitting them is too difficult. If only that were not the case, we might have far better government. If politicians could admit to mistakes, admit that their old policies need changing, we would all be better off. I can’t see it happening – but on those rare occasions when the good U-turns happen, we should applaud them and those who make them. So here’s to John McDonnell and Michael Gove. Thanks for the U-turns!

Dear Tristram Hunt

I was very interested to read about your speech at the University of Sheffield last night – sorry not to have been able to attend, but having read various reports, including some tweeted by your good self, I wonder if you have really understood some of the issues you’re discussing. I mean, there is a great deal that I agree with in what you say, but there is one particular issue that you have highlighted that I suspect needs more careful analysis: the role of social media, and of Twitter in particular.

You are quoted as saying that the Labour Party pays too much attention to the ‘narrow online world of Twitter’, and that ‘What the algorithms which underpin our digital lives do is take information about us and fire similar information back at us,’ There is a good deal of truth in that – indeed, academics and other experts have been discussing the issue for some time. Professor Cass Sunstein, in his seminal work ‘Republic 2.0‘, raised the issue of political polarisation within online communities in 2002. Eli Pariser’s ‘The Filter Bubble‘ in 2012 addressed the effect of Google algorithms on what we see and don’t see on the net, while my own Internet Privacy Rights in 2014 discusses what I call ‘Back-door Balkanisation’, through which communities are automatically polarised by the combination of Google algorithms, invasions of privacy and the desires of commercial enterprises. It is a known effect, albeit one known within fairly narrow communities. It is not, however, so simple as ‘algorithms firing back similar information at us: it is more complex than that, and I’d recommend some serious study in the area.

Most importantly, it is not something to be afraid of, but something to be understood and to be harnessed. It is something powerful and important – and something modern that you, as a self-proclaimed ‘moderniser’ should embrace. It is a feature of online communities that isn’t going away, either, no matter how many speeches are made against it, or how many articles are written about it in the Spectator or the New Statesman.

You see, there are two fundamental problems with dismissing the ‘narrow online world’: firstly that it consists of real people, and secondly that those people are likely to be exactly the politically engaged people who are crucial in getting a political party moving, particularly a party like the Labour Party, who doesn’t have the mainstream media on its side and doesn’t have massive donations from vested interests. Labour needs its activists, and those activists are more likely than most to use the social media. The clue is in the social. Dismissing the social media means dismissing the very people that you need on your side.

The fact that you and the other ‘modernisers’ dismiss the online world is sadly characteristic of their problems in the Labour leadership contest: a misreading of the nature of the contest. Many ‘modernisers’ seemed to think they were fighting a general election, trying to win the middle ground, to persuade the readers of the Daily Mail that their candidates were the best – when the contest was actually with Labour members and activists. Those members and activists were far from persuaded by the appeals to the Daily Mail. They were actively put off by the appearance of Tony Blair, the interventions of John McTernan (calling the nominators of Corbyn morons, for example) and by the suggestions that anyone voting for Corbyn was stupid. In your speech, Tristram, you suggest that Labour is losing touch with the voters – why did you not apply that logic to the leadership contest? It was the self-styled ‘modernisers’ and ‘moderates’ who had lost touch with the voters in the leadership contest – and seemed to have forgotten who those voters actually were.

And that brings me back to the online world, in its narrow, polarised, echo-chamber form. As I noted at the start, it is true that this effect can and does happen. However, it happens only when there are voices to echo, and when those echoes resonate. That is what happened with Corbyn and his enormous victory both in the social media and in the leadership contest. His words and views resonated within the relevant community, and gained power as a result.

The lesson to learn is not that this is irrelevant and should be avoided – but, as I said earlier, that it should be understood and harnessed. In some situations – and a leadership election is one of them – it is critical, and if the ‘modernisers’ had been modern enough to understand the online world they might have done a lot better in that contest. The online world can have great power and effect in some situations. It works really well for some forms of activism – and the ‘echo-chamber’ effect is actually one of the reasons for that.

That doesn’t mean, of course, that it is the only tool, or that this lesson means we should spend all our time and effort in online campaigning. The ‘Twitter bubble’ is a bubble, just as the ‘Westminster bubble’ is a bubble, and the ‘media bubble’ is a bubble. Social media has its place, just as focus groups have their place, and working with the mainstream media has its place. They have strengths and weaknesses, and different uses at different times. Each should be used with huge pinches of salt, but should be used. Labour, and you and your fellow ‘modernisers’ need to understand that. Don’t dismiss the online world. If you are truly a ‘moderniser’ you should embrace it, understand it, and engage with it. Don’t treat Twitter as somewhere for you to broadcast your views, but as the interactive and responsive medium that it can be at its best. Then you might harness its power rather than fear it.

Kind regards

Paul Bernal

P.S. There are a great many people on Twitter and elsewhere who have the best interests of the Labour Party very much at heart, and who would be not only willing but able to help you and others with better engagement and understanding of the often unruly and sometimes intimidating online world. I am one – and having recently rejoined Labour I would be very happy to do my bit.

The Surveillance Elephant in the Room…

Yesterday’s decision in the Court of Justice of the European Union (CJEU) in what has been dubbed the ‘Europe vs Facebook’ case was, as the Open Rights Group puts it, a ‘landmark victory for privacy rights’. Much has already been written about it. I do not propose to cover the same territory in any depth – the Open Rights Group blog post linked to above gives much of the background – but instead to examine the response of the European Commission, and the elephant in the Commission’s room: surveillance.

The judgment was published yesterday morning, and its essence was very simple. The ‘safe harbor’ agreement, which effectively allows personal data to be transferred from the EU to the US by some 4,000 or so companies, was declared invalid, because though under the agreement the relevant US companies promise to provide protection for that data in many ways – security, promising not to repurpose it, misuse it, hold it longer than necessary and so forth, essentially along the lines of European Data Protection law – there was one thing that it could not provide protection from: surveillance by the US authorities.

As the CJEU put it (paragraph 94 of the ruling):

“…legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life…”

This is where the European Commission comes in. It was the Commission that made the ‘safe harbor’ decision, setting up the safe harbor system, which should, in accordance with data protection law, have ensured that data was adequately protected in the US. The Commission did not ensure that – and did not even state that it did – primarily because the state of US surveillance law (and, as far as we know, US surveillance practice) could not allow it. US surveillance law means that ‘national security, public interest, or law enforcement requirements’ override privacy and other rights where non-US citizens are concerned, and EU citizens have no form of protection against this, or legal remedies available.

The Elephant in the Room

This, it must be clear, is a fundamental issue. If the US can do this, without control or redress, then whatever systems are in place, whatever systems are brought in to replace the now invalidated ‘Safe Harbor’, will similarly breach fundamental privacy rights. No new ‘safe harbor’, no individual arrangements for particular companies, no other sidestepping plans would seem to be possible. Unless US surveillance law – and, US surveillance practice – is changed, no safe harbor would seem to be possible.

The Commission, however, does not seem willing – or perhaps ready – to confront this issue. Their brief statement in response to the ruling, published yesterday afternoon, does not mention surveillance even once. That in itself is quite remarkable. The closest it gets to accepting what is, in fact, the essence of the ruling, is a tangential reference to ‘the Snowden revelations in 2013’ without mentioning anything about what those revelations related to. There is no mention of US surveillance law, of the NSA, of national security or of anything else relating to it. The surveillance elephant in the room looms over everything but the Commission seems to be pretending that it does not even exist.

The US authorities, however, are quite aware of the elephant – in a somewhat panicky press release last week, between the opinion of the Attorney General that presaged the CJEU ruling, the ‘US Mission to the European Union’ said that the ‘United States does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens‘. They do not, however, seem to have convinced the CJEU of this. Far from it.

Heads in the sand

In a way it should not be a surprise that the Commission seems to have their heads in the sand about this issue. It is not at all easy to see a way out of this. Will the US stop or change its surveillance practices and law? It is hard to imagine that they would, particularly in response to a ruling in a European court. Can they provide convincing evidence that they are not engaging in mass, indiscriminate surveillance? Again it seems unlikely, primarily because the evidence points increasingly precisely the opposite way.

There are big questions about what actually constitutes ‘surveillance’ – does surveillance occur when data is ‘collected’, when it is accessed automatically or analysed algorithmically, or when human eyes are involved? The US (and UK) authorities suggest the latter, but the European Courts (both the CJEU and the European Court of Human Rights) have found that privacy rights are engaged when data is gathered or held – and rightly so, in the view of most privacy scholars. There are many reasons for this. There is a chilling effect of the existence of the surveillance apparatus itself and the ‘panopticon’ issue: we alter our behaviour when we believe we might be being watched, not just when we are watched. There is the question of data vulnerability – if data has been gathered, then it might be hacked, lost or leaked even before it is analysed. The very existence of the Snowden leaks makes it clear that even the NSA isn’t able to guarantee its data security. Fundamentally, where data exists, it is vulnerable. There are other arguments – the strength of algorithmic analysis, for example, may well mean that there is more effective intrusion without human involvement in the process, the importance of meta-data and so forth – but they all point in the same direction. Data gathering, despite what the US and UK authorities might wish to say, does interfere with our privacy. That means, in the end, that fundamental rights are engaged.

What happens next?

That is the big question. The invalidation of safe harbor has huge repercussions and there will be some manic lobbying taking place behind the scenes. The Commission will have to consider the surveillance elephant in the room soon. It isn’t going away on its own.

And behind that elephant there are other elephants: if US surveillance and surveillance law is a problem, then what about UK surveillance? Is GCHQ any less intrusive than the NSA? It does not seem so – and this puts even more pressure on the current reviews of UK surveillance law taking place. If, as many predict, the forthcoming Investigatory Powers Bill will be even more intrusive and extensive than current UK surveillance laws this will put the UK in a position that could rapidly become untenable. If the UK decides to leave the EU, will that mean that the UK is not considered a safe place for European data? Right now that seems the only logical conclusion – but the ramifications for UK businesses could be huge.

More huge elephants are also looming – the various world-wide trade agreements currently being semi-secretly negotiated, from the TPP (Trans-Pacific Partnership – between the various Pacific Rim countries including the US, Australia, NZ, Japan) to the TISA (the Trade In Services Agreement), TTIP (Transatlantic Trade and Investment Partnership – between the EU and the US) and CETA (Comprehensive Economic and Trade Agreement – between Canada and the EU) seem to involve data flows (and freedom from government interference with those data flows) that would seem to fly directly in the face of the CJEU ruling. If data needs to be safe from surveillance, it cannot be allowed to flow freely into places where surveillance is too indiscriminate and uncontrolled. That means the US. These agreements would also seem likely to allow (or even require) various forms of surveillance to let copyright holders ensure their rights are upheld – and if surveillance for national security and public safety is an infringement of fundamental rights, so would surveillance to enforce copyright.

What happens next, therefore, is hard to foresee. What cannot be done, however, is to ignore the elephant in the room. The issue of surveillance has to be taken on. The conflict between that surveillance and fundamental human rights is not a merely semantic one, or one for lawyers and academics, it’s a real one. In the words of historian and philosopher Quentin Skinner “the current situation seems to me untenable in a democratic society.” The conflict over Safe Harbor is in many ways just a symptom of that far bigger problem. The biggest elephant of all.

The ethical case for ad-blocking

The ad-blocking wars have been hotting up over the last few months – triggered in part by Apple’s integration of ad-blocking into the new version of iOS, the operating system for iPhones and iPads. Some of the commentary, particularly from those associated with the advertising industry, has been more than a touch hyperbolic. Seasoned internet-watchers will be very familiar with ‘such-and-such will break the internet’ stories: the number of things that we’ve been told will break the internet over the years is huge. It’s as familiar as the ‘such-and-such technology/practice will kill music’ stories that have been around since the advent of recording – from home-taping to file-sharing, music has died almost as often as Sean Bean in the movies. And yet music still lives. And thrives. As does the internet, despite all the things that should have killed it.

The latest idea is that ad-blockers will break the internet. A particular piece in The Verge has been very widely read and shared – which puts forward the entirely believable suggestion that Apple has included ad-blocking in iOS as part of its global war with Google and Facebook. The overall premise is highly convincing – and of course Apple will do whatever it can to ‘win’ against Google and Facebook, and of course this is an opportunity to make some ground. Both Google and Facebook do make their money (or most of it) from advertising, so restricting, controlling or blocking advertising could potentially reduce that income. And Apple is a business, and will be looking for opportunities that give it a commercial advantage over its rivals. So, however, are Google and Facebook – despite their efforts to portray themselves as providers of free and wonderful services to all, guardians and supporters of freedom of expression and so fundamental to the infrastructure of the internet that we love that any challenges to them (and their business models) are challenges to the internet itself.

Publishers and the advertising industry – and in particular bodies that ‘represent’ the advertising industry – are equally aggressive, suggesting that ad-blocking is ‘unethical’, ‘hypocritical’ or worse. They have pursued ad-block software providers in the courts in Europe – consistently losing, most recently in Germany last week, where the makers of AdblockPlus made their fourth successful defence against a legal challenge. The media onslaught has been extensive, and supported by many commentators. And yet Adblock software seems to be increasingly popular and successful, both on computers and on mobile.

Why is this? Is it because those who use ad-blocking software are unethical? Because they come from the ‘something for nothing’ culture? Because they don’t understand the economics of the internet, and so are blindly going down a route that can lead only to disaster? I don’t think so. The reverse: I think that users of ad-blocking software are taking a positive route both ethically and economically. If anything, it is by extending the use of adblocking software that the future of the internet is being secured, not the reverse. The more people that use adblockers, the better the future for the internet.

Why do I think this? Well, first of all, I look at some of the positives and negatives of the use of adblockers.

In favour of ad-blocking:

Makes your screen clearer and makes it easier to find and read the content (particularly important on mobile)
Makes the experience cleaner, clearer and less annoying
Speeds up your connection – stops those processor-hungry video ads in particular
Saves you money if you pay for data (which many people do)
Reduces your chances of picking up malware
Protects (to some degree) your privacy by stopping trackers and profilers
Protects (to some degree) your privacy by stopping others (e.g. government agencies) from piggybacking on the trackers and profilers
It’s your freedom of choice to put whatever software you like on your own equipment.

Against ad-blocking

Disrupts the current advertising model that supports much of the free content on the internet
Stops you receiving relevant and attractive ads tailored to your profile and behaviour

This second anti-ad-blocking point is a stretch to say the least, though it is one that the advertising industry likes to push. I am far from convinced. That then leaves only the first point, that using adblockers disrupts the advertising model. And it does, no question about it. It has the potential to disrupt it hugely, which is why the advertising industry and the publishers that are supported by it are in such turmoil.

The points in favour of ad-blocking, however, include some very strong ones. Fundamentally, and this is the point that the advertising industry seems very reluctant to admit, the current model is broken. Very badly broken, from the point of view of the user – and particularly the mobile user. The first four points are critical: speed of connection for mobile is a fundamental issue, most people pay for data, and the screens of even the biggest phones (I have an iPhone 6 plus) are small enough that advertisements often make pages all but impossible to read. One of my favourite newspapers, The Independent, was completely unreadable on my phone until I installed an ad-blocker.

The remaining points are more ‘niche’ – I am a privacy advocate, so the privacy points really matter to me, but I realise that not all people care as much as I do, even if I believe they should – but the first four are strong enough that the points against ad-blocking would need to be very compelling, and ultimately, to me at least, they are not. Indeed, precisely the opposite.

The current situation is unsustainable

Let me return to the main point against ad-blockers. They disrupt the current advertising model that underpins much of the ‘free’ internet. Two key words: disrupt and current. Privacy-invasive, processor-intensive, screen-filling advertising is very much the current system, not something that has always existed nor something that need always exist. To assume that a current model is a ‘required’ model, is a necessary model and will (and must) last forever is ridiculous in the face of the most cursory examination of history. Things change all the time – and sometimes that change is necessary. For many people (as the uptake of adblockers reveals) the change in the current advertising model is necessary right now.

The need for disruption

The question then is how the situation can change – and part of that is the need for disruption. Without disruption, nothing will change. That is where adblockers come in, and why the use of them is a positive ethical step. If we want change, we have to act in order to make that change happen. Without adblockers, would the advertising industry be willing to change their model? The evidence points strongly against that. Advertisements have become more intrusive, more processor-hungry, more screen-filling over recent months and years, not less so. The past record of the advertising industry is not one to be celebrated. Here are just a few examples:

They have pretty consistently fought against attempts to make advertising less intrusive, and supported the worst excesses of advertisers. Phorm, the creepiest and most privacy invasive of all, which thought it was OK to monitor peoples entire internet activity without consent, and even engaged in extensive secret trials without telling anyone, was supported directly by the industry bodies right until the end, when its model was ditched in the face of legal threats, EU action and being abandoned by its business partners.
The Do Not Track initiative – through which advertisers were intended to abide by user choices set out in their browsers – was so heavily undermined by the advertisers that it fell apart. Firstly they turned ‘do not track’ into ‘do not target’ – still tracking those who opted out, gathering data and profiling them, but not serving them with targeted ads. Then they refused to accept the idea that ‘not being tracked’ could be set as the default, saying that they would ignore that choice.
Google and others appear to have effectively side-stepped the do not track settings in the Safari browser, still tracking users though they had actively chosen not to be tracked: this is the backing to the Google vs Vidal-Hall case.

This is just a part of it – and does not even touch on the many other ethical issues connected to advertising. For advertisers to lecture others on ethics is more than a little hard to swallow.

How, then, can the advertising industry be persuaded to change its ways? The use of disruptive technology is one key tool. If the current dysfunctional situation is to be changed, and that would seem to many to be a good thing, then more use of that disruptive technology would seem to the necessary. Just as civil disobedience is sometimes critical to get social change, the same is true on the internet. It might be pushing it too far to say that we have a duty to use ad-blockers, but I don’t think it’s that much of a push.

There are some signs that some advertisers are taking the hint. The Electronic Frontier Foundation reported last week that ‘Adblockers and Innovative Ad Companies are Working Together to Build a More Privacy-Friendly Web’ – and I hope that this is a sign of better things to come. Would the ad companies have taken this kind of step without the uptake of adblockers? I think it highly unlikely.

What is clear to me, however, is that we need a new economic model to replace the current broken one. I do not know what that model will be, but I am confident that it will emerge. The internet will not ‘break’, any more than the music industry will collapse. Our disruption is part of how that new model will be created and developed. We should not be cowed by the advertising industry, particularly on ethical grounds.