Protest and survive?

The latest in a long line of assaults on our right to protest seems to be on its way with the planned replacement of Anti-Social Behaviour Orders (ASBOs) with ‘Ipnas’: Injunctions to Prevent Nuisance and Annoyance. Former DPP Lord Macdonald QC described the new powers as amounting to ‘gross state interference’ with basic freedoms – and it’s hard to argue with him, given the almost breathtaking scope of the powers. As described in the Telegraph, ‘the new system will allow courts to impose sweeping curbs on people’s liberty if they think they are “capable of causing nuisance or annoyance to any person”. They will be able to impose them if they think it is “just and convenient” to do so.’

One of the most important areas that the powers will have an impact on is the right to protest. It is a right that seems to be very much misunderstood and underrated in the current era – and a right that has been under attack in a wide variety of ways. It is also, however, a right that is of crucial importance, and one that needs defending. In the current political climate, where many people feel that conventional political paths are not functioning, where the current crop of politicians aren’t representing them, protest is one of the few ways that they can express themselves, and can get their messages across. Protest matters.

Surveillance and protest

There’s been a lot of talk about surveillance recently – and a lot of political attention on it – but much of it, to a great extent at least, has missed the point that one of the main functions of surveillance, in practice, is to monitor and control the dissent and protest. Indeed, it’s arguable that this may be the main purpose for much of the surveillance – particularly insofar as that surveillance covers conventional email, web-browsing, social networks and so forth. Whilst the terrorists, paedophiles and others who are ostensibly the primary targets are highly unlikely to use those more ‘normal’ parts of the net, and are highly likely to use encryption, anonymisation or other evasive techniques, the ordinary people, the organisers and the protesters, are the opposite. They use ordinary emails to organise their meetings, Facebook to coordinate them, and twitter to publicise them. Surveillance, therefore, though it finds catching terrorists and paedophiles as difficult as finding needles in haystacks, finds protests and protesters without much difficulty.

That’s why authoritarian regimes like to monitor the net so much – the late and unlamented Tunisian government, for example, hacked into Facebook’s login page so that they could intercept people’s usernames and passwords, so they could check where people were meeting, who they were talking to and so forth. It’s also one of the key reasons why the UK the government is so keen on surveillance. The summer headline in the BBC “Whitehall chiefs scan Twitter to head off badger protests” made the point very clearly. It’s not just to find out where protests might happen – it’s to head them off. And, indeed, by publicising the fact to try to persuade people not to protest in the first place. Don’t even think about it – we’re watching you, and we’ll stop you even if you try.

Combine the ability to find and monitor protests with the new and wide-ranging powers included with the Ipnas and you’ve got a near perfect tool to deal with protest. Indeed, surveillance of social media could even provide sufficient evidence to suggest that an individual is “capable of causing nuisance or annoyance” – and hence to slap them with an Ipna. Protests could be – and quite probably will be – stopped before they’ve even begun.

Protest and the media

It may be, however, that the perfection of this anti-protest double-whammy has not been noticed – because right now it feels as though the British ‘establishment’ does not really understand the importance of protest, or even that we really have a right to protest, or a need to protest. For many within that establishment, protest seems to be largely irrelevant, perhaps something out of the past – some people may recognise the title of this piece as coming from the anti-nuclear movement of the 80s, for example, and see protest as being something of a similar age.

The BBC, for example, did not even deign to cover the Million Mask March this week – not, I suspect, out of any conspiracy, but because they simply didn’t think it was important enough to be worth covering. Protest is not seen as important – because they don’t understand the role of protest. The BBC, I also suspect, thinks along very conventional lines: freedom of expression is, to many of them, synonymous with freedom of the press. To the BBC, that freedom is in the hands of journalists – and they’re quite wrong: protest is a fundamental part of freedom of expression. Where the media is constricted and constrained, as our media is – both through the law and through pressure-driven self-restraint, protest can become the most important part of freedom of expression of all.

The power of protest – and the need for protest

This is what Russell Brand realises – and the point that it seemed to me most of those criticising Russell Brand missed. They focussed almost entirely on Brand’s suggestion that voting was irrelevant – because to them, voting was all that there was. If you don’t vote, according to that logic, you can’t do anything to bring about change. They’re wrong – because there are many, many things that form part of a properly democratic system. Voting is just part of it – and don’t get me wrong, I have always voted and almost certainly always will – but there is a great deal more to it. And, again as Brand realised, when political institutions are failing you, you have to look for other means. Those means will almost certainly include protests.

That’s one of the reasons a clamp-down on protests is one of the first steps of an authoritarian regime that feels itself to be in trouble – or of a supposedly democratic regime that doesn’t really trust its people. Right now, that feels to be the way that our government looks at things. It doesn’t trust the people – so it wants to restrict people’s freedom to make their feelings known. It wants to control their protests – and we should not let them. If we are to survive as a democracy, we need that right to protest. We will probably have to fight for it, and fight very hard.

Whose data? Our data!!!

There’s a slogan echoing around the streets of major cities around the globe at the moment: ‘Whose streets – our streets!’ It’s the mantra of the ‘occupy’ movement, expressing the frustration and injustice – particularly economic injustice – and the sense that all kinds of things that should be ‘ours’ have been taken out of ‘our’ control.

The same could – and should – be said about personal data. The mantra of the occupy movement has a very direct parallel in the world of data, which is why I think we should be saying, loud and proud, ‘Whose data – our data!’

Just as for the occupy movement (which I’ve written about before), the chances of getting everything that we want in relation to data are slim – but the chances of changing the agenda in relation to data are not, and the chances of bringing about some real changes in the medium and long term even less so. The occupy movement, particularly in the US, have brought some ideas that previously were hardly talked about in the media, like wage and wealth inequality, close to the top of the agenda. They may even have moved it high enough that politicians feel the need to do something about it – I certainly hope so.

The personal data agenda.

Can we do the same for personal data? One of the current points of discussion is the idea of a ‘right to be forgotten’ – something that relates directly to the question of whether personal data is ‘ours’ in any meaningful way. I’ve spoken and written about it a lot before – my academic article on my take on it, ‘a right to delete?’ can be found online here, while I’ve also blogged on the subject on the INFORRM blog. It’s currently under discussion as part of the forthcoming revision to the Data Protection Directive, to great resistance from the UK. The latest manifestation of this resistance has come from the ICO, suggesting that the right to be forgotten should not be included as it would be unenforceable, and that the inclusion would give people unrealistic expectations, as well as potentially interfering with free speech. Effectively, they seem to be suggesting that including it would send out the wrong message. This pronouncement echoes previous statements by Ken Clarke in May, and Ed Vaizey a couple of weeks ago – it looks like part of a campaign to rein in the attempts by Europe to give more weight to privacy and user rights in the balancing exercise with business use of personal data.

Are the ICO right?

I believe that the ICO are wrong about this in a number of ways. First of all, I think they’re wrong about the unenforceability issue – at least to a great extent. In the Mexico City conference on data protection earlier this month, even Google admitted that they could do their part, but that it would be expensive. That’s very different from saying that it is unenforceable. What’s more, it doesn’t have to be perfectly implemented in order to have a benefit to people – if, for example, the right to be forgotten would allow people to easily, simply and quickly delete their Facebook profiles, or the data held on them by Tesco, that could be significant. It could also, as I’ve argued in my article, help persuade businesses to develop business models less dependent on the gathering and holding of massive amounts of personal data – if they know that such data might be ‘deletable’.

Secondly, I believe they’re quite wrong about the free speech issue – again, as I outline in my paper, if proper exceptions are put in place to allow archives to be kept, then free speech isn’t affected at all. The idea is not to be able to delete a record of what school you went to – but to be able to delete records of what breakfast cereal you bought, or profiles created based on surveillance of your internet activity.

Thirdly, and perhaps most importantly, I think they’re wrong about the message being sent out – profoundly wrong. The message that the ICO is sending out is that business matters more than people’s rights – and it’s a message that has echoes throughout the world at the moment, echoes that are what has provoked the anger in so many people that lies being the ‘occupy’ movement.  It’s the same logic as that which supports bankers bonuses over benefits for the disabled, and looks for tax cuts for the rich whilst enforcing austerity measures that cut public services to the bone and beyond. Even more importantly, it suggests that the ICO does not see its role as protecting individual rights over data – but as supporting the government’s business agenda.

Whose data – our data!

The actions and messages of the ICO are essentially saying that this is too difficult to do, so we shouldn’t even try. It reminds me very much of the arguments against the idea of having smoke-free restaurants and pubs – a lot of people said it would be impossible, would drive the restaurants and pubs out of business. Further back, there have been similar stories throughout history – most dramatically, they were made against the abolition of slavery. We shouldn’t let this kind of logic stop us from doing what is right – we should find a way. And we can find a way, if only we can find the will. The ICO needs to be stronger, to understand that it has to serve us, not just business or the government. Privacy International asked in February whether the ICO was fit for purpose – and the answer increasingly seems to be clearly not. We need to remind them what their purpose should be – and that, more than anything else, is to represent us, the people. We need to remind them whose data they’re supposed to be protecting. Whose data? Our data!