One of the more common responses to criticism of the Investigatory Powers Bill – and indeed pretty much any extensive surveillance plan or law – is something along the lines of ‘but if it solves a single terrorist plot we should do it.’ The implication is that those of us who criticise the plans are somehow being ‘soft’ on terrorism, or even on the side of the terrorists. Or, more usually, that we’re indulging our own personal, individual and selfish ideas of privacy at the cost of critical security. I’ve written about some aspects of this many times before – about how privacy isn’t an individual right but one that underpins community rights such as freedom of assembly and association, how it’s critical for freedom of speech, and so forth – but there is another crucial side to this. Neither I nor any of those I know who advocate for privacy and more controls over surveillance are suggesting that we do nothing about crime or terrorism. Very much the opposite. When the debate is heard in the media it often seems as though privacy advocates are just blocking the security and intelligence services, and the police, from doing what is needed. That we’re suggesting that the risk of deaths through terrorist atrocities matters less than our abstract, theoretical and ultimately irrelevant ‘rights’. We’re not. What we are asking for is exactly that ‘mature debate’ that Andrew Parker of MI5 has asked for over surveillance.
There may be some who are calling for no surveillance at all, but very few. Most are calling for targeted rather than mass surveillance – and not just because they believe this would be more proportionate but because it might even be more effective. If you’re already looking for a needle in a haystack, why start by making that haystack as big as it can possibly be. Privacy advocates aren’t looking for there to be *no* strategy to locate and counter terrorist plots. For anyone to say ‘but we foiled this plot this way’ and not to see that the comparison needed isn’t between the (mass surveillance) policy being pursued and nothing, but between the policy pursued and some alternative policy that might even be more effective. We’re not saying ‘stop mass surveillance and do nothing’ but ‘stop mass surveillance and develop an alternative strategy’.
This argument extends to resources too – particularly in today’s economic climate. One of the many questions that needs to be asked is whether the immense amounts of money, time, people and resources allocated to the current and planned surveillance programmes might be more effectively allocated elsewhere. The Charlie Hebdo killers, for example, had been under direct, targeted, physical surveillance by the French authorities some time before the shooting, but that surveillance had reportedly been dropped because of a lack of resources. How many additional, ‘traditional’ counter-terrrorism officers could be employed for the amount being spent on surveillance programmes? Has the question been asked?
There are other questions to ask too. The full consequences of the current and planned proposals need to be considered. Things like the plans on encryption – insofar as it is clear what those plans actually are – can have many potentially dangerous results, from creating vulnerabilities to encouraging the development and use of more tools to sidestep or avoid the authorities. The forced retention of ‘Internet Connection Records’ (about which I have written before), for example, may encourage the broader use of systems like Tor, by both those who the authorities would like to be able to watch and by those they would not. Tighten the grip and more may slip through the fingers. Has there been any kind of assessment of this?
A new law?
It’s not true that many of those opposed to surveillance are opposed to having a new law – again, quite the opposite. David Anderson QC was quite right when he characterised the current state of affairs as ‘undemocratic, unnecessary and – in the long run – intolerable’. A new law is crucial – but it needs to be as good as it can be, and for that to happen the debate has to be on the right terms. Straw men – and the essence of the ‘all or nothing’ and ‘my way or the highway’ arguments that are so commonly made is that they are straw men – should be exposed for what they are, if we are to have the debate that we need.
The problem with our debate – well, one of the problems with it – is that it’s couched in such simple, black-and-white, emotive and immature terms. On the one side, people are accused of being Orwellian oppressors, on the other side of being naïve do-gooders who can’t handle the truth and will have blood on their hands. Neither characterisation, it seems to me, is either particularly true or particularly helpful. We need to get beyond them if the debate is to be meaningful. The questions above – whether there are alternative approaches being explored or considered, whether the current plans are an appropriate and effective use of resources – would be a key part of a properly mature debate. Indeed, I hope they will become so as the debate on the Investigatory Powers Bill continues over the next few months. Alternatives must be discussed and explored – and I hope they will be.