The politics of privacy

Why is it that despite what looks like very strong public hostility, together with a powerful media opposition, the proposed UK government surveillance programme, the Communications Capabilities Development Programme (a description of which can be found on the Open Rights Group wiki here) is currently very likely to go ahead? The problem is a deep one, connected with the party politics of the UK. All three major political parties are deeply conflicted over the issues – and that conflict may well allow the proposal to be pushed through regardless of the opposition of the people and of the media.

Tories…

The Tories, as very much the senior party in the Coalition, are to a great extend right behind the programme: after all, they’re the ones proposing it. In some ways the programme fits directly into some traditional Tory agendas: ‘Law and Order’ has long been central to Conservative politics, from the more extreme ‘hang ’em and flog ’em’ sections of the party to the slightly more rational ‘prison works’ mantra of Michael Howard et al. Moreover, a certain kind of old-fashioned patriotism could be said to fit in with the anti-terrorist agenda – and it’s easy to see the ‘if you’ve got nothing to hide, you’ve got nothing to fear’ argument used by those who essentially see criminals and terrorists as basically ‘evil’, distinct from and a threat to good, ordinary people.

On the other hand, there is another strong, traditional thread in Conservatism that goes directly against the idea of surveillance on this kind of scale and in this kind of way – and it should be no surprise that one of the most eloquent and consistent speakers against the programme has been David Davis. Civil liberties should be central to Conservative philosophy – and in particular the kind of civil liberties that protect against intrusion into privacy. An Englishman’s home is his castle, after all! What’s more, the kind of programme envisaged smacks of ‘big government’, and the ‘nanny state’, things that a Tory should instinctively reject. David Davis expresses this view very well – and I’m sure what he says resonates with a lot of Tory MPs and Tory supporters.

For the Tories, this civil libertarian attitude needs fostering and supporting.

Labour…

Labour may well be even more conflicted over the issue than the Tories. On the one hand Labour is supposed to stand up for the little people against oppression and control, and there is a strong association between the left wing and the ideas of freedom that this kind of a programme deeply undermines.Anyone who remembers the Thatcher years knows all too well how the forces of the police and even military intelligence were used against the unions (and not just during the miners’ strike) and against ‘left wing’ groups such as CND – the recent scandal of long term police infiltration into environmental groups (including long term relationships between undercover officers and and activists) fits into this pattern.

…and yet there are three strong factors that make Labour far from certain to oppose the programme. Firstly, there’s an authoritarian streak on the left – it would be unfair to suggest it might be a touch ‘Stalinist’, but there’s a certain degree of a ‘command and control’ attitude from some, and a sense that government needs to take a grip of things in this kind of a way. Secondly, there’s the long term need of the Labour Party to counter the Tory argument that Labour are ‘soft’ on crime – this attitude verged on paranoia during the last Labour administration, and is still clear in the current Labour party. Thirdly, there’s the deep problem surrounding the ‘War on Terror’ and the Labour Party’s role in it: Tony Blair and Gordon Brown were more than complicit in the ‘War on Terror’, they drove it forward. These three factors produced a series of desperately authoritarian Home Secretaries, each bringing in more draconian and anti-civil libertarian measures than the last. David Blunkett, Charles Clarke and John Reid presided over some of the most appalling pieces of policy in living memory, from the push towards ID cards to the data retention measures that ultimately lie behind the current programme.

For Labour, the challenge is to break with the past – to admit (or at least recognise) that mistakes were made by the last administration, and to be brave enough to say that Blair and Brown got this wrong. That last part it really hard to do for politicians at the best of times…

The Lib Dems

In one way, the Lib Dems should be the least conflicted. These measures are pretty fundamentally ‘illiberal’, and the Liberal Democrats as a party should be simply and directly against them. A few short weeks before the last general election I heard Nick Clegg speak excellently at the Privacy International 25th Birthday Party, talking directly about the rise of the ‘database state’ under Labour and how directly opposed to such things he was both personally and politically. For the Lib Dems, there really shouldn’t be an issue – and if they were currently in opposition, against a majority Tory government, I’d be willing to bet a lot of money that as a party they’d oppose the measure.

…but they’re not in opposition. They’re part of the coalition, and that brings with it several pieces of baggage. First of all, they have to work with the Tories – and in particular, Nick Clegg has to work with David Cameron. Secondly, they have to appear ‘governmental’ – and Nick Clegg wants to look ‘statesmanlike’, which many politicians seem to think means doing the wrong, illiberal and unpopular thing, to appear more ‘responsible’. Thirdly, if they come out against this, many of their supporters may ask why they didn’t come out against other policies – student fees, privatising the NHS, welfare, legal aid etc – which were just as much against ‘liberal’ principles. To an extent they’re hoist with their own petard. They’re part of this government now, and may feel they have to ‘see it through’. There have already been so many ‘betrayals’, one more hardly makes any difference….

Three parties, alike in turmoil

So all three parties have their internal conflicts – which makes them ripe for the ‘security lobby’ to exploit. It should, however, also give us all a bit of an opportunity to bring about opposition. The excellent Privacy International, the Open Rights Group, Big Brother Watch and others are already working hard to oppose the current measures. One key could be to contact MPs directly – using http://www.writetothem.com/ for example. Whoever your MP might be – from whichever party – there is a way to try to convince them. If you’re writing to a Tory, emphasise the civil liberties aspects, talk about an Englishman’s Home. If you’re writing to a Labour MP, remember the way that surveillance undermines democracy, works against unions and progressive activism. If you’re writing to a Lib Dem, talk about traditional liberalism and liberty – and remind them that one betrayal need not lead to another.

I’d like to think that all this is possible – that we can harness the ‘good’ side of each of the parties, and not let ourselves be railroaded into something that, ultimately, I don’t think that many people, whatever their political persuasion, either want or believe that we really need. The politics of privacy are complex – one of the things that I have found particularly refreshing since I started working in the field is that is can unite people with otherwise very different political perspectives. Let’s hope that we can unite in this way successfully this time.

Phorm – a chapter closes?

Another chapter of the long-running Phorm saga seems to have come to a close, with the announcement by the European Commission that they have closed the infringement case with the UK about their implementation of rules on privacy in electronic communications. In order to get this closure, the UK had, in the words of the Commission press release

‘amended its national legislation so as not to allow interception of users’ electronic communications without their explicit consent, and established an additional sanction and supervisory mechanism to deal with breaches of confidentiality in electronic communications.’

This case came about as a result of the big mess that the UK government got into over Phorm – something which I’ve written about both academically and in blogs on more than one occasion before. In essence, the government decided to back Phorm, a business which privacy advocates and others had been telling them from the very beginning was deeply problematic, and that decision backfired pretty spectacularly. The amount of egg that ended up on government faces as a result of the affair was pretty spectacular. The action of the Commission was a direct result of the admirable work of campaigners like Alexander Hanff at Privacy International, drawing on the excellent investigatory analysis by the University of Cambridge Computer Lab’s Richard Clayton and the legal work of Nicholas Bohm for the Foundation for Information Policy Research – work that was effectively in direct opposition to the government. This work led to questions to the commission, upon which the commission acted, as well as, more directly, to the collapse of the Phorm business model as its business allies deserted it and opposition from the public became clearer and clearer.

Phorm’s business model was particularly pernicious from a privacy perspective. They took behavioural advertising (which is problematic in most of its forms) to an extreme, monitoring people’s entire browsing behaviour by intercepting each and every click made as you browse, in order to build up a profile which they then used to target advertising. All this without real consent from the user, or at least so it appeared, and indeed without the consent of the owners of the websites to whom these intercepted instructions were intended to be sent. As a model it appeared to break not only laws but people’s ideas about being under surveillance – Orwellian in the extreme. It failed here – thanks to the resistance noted above – and has since failed again in South Korea, and appears to be failing in Romania (about which I’ve blogged before) and Brazil, the three places that Phorm’s backers have tried it since. In each case, it looks as though people’s resistance has been a key….

There are lessons to learn for all concerned:

1) Those of us advocating and campaigning for privacy can take a good deal of heart from the whole affair – essentially, we won, stopping the pernicious Phorm business model and forcing the UK government not just to back down but to change the law in ways that, ultimately, are more ‘privacy-friendly’. ‘People power’ proved too strong for both business and government forces in this case – and it may be possible again. We certainly shouldn’t give up!

2) Businesses need to take note: privacy-invasive business models will face opposition, and that opposition is more powerful than you might imagine. From the perspective of the symbiotic web (my underlying theory, more about which can be found here), if a privacy-invasive model is to succeed, it must give something back to those whose privacy is invaded, something of sufficient value to compensate for the privacy that is either lost or compromised. In Phorm’s case, there was very little benefit to the people being monitored – the benefit was all for Phorm or Phorm’s advertising partners. That sort of model isn’t going to succeed nearly as easily as businesses might think – people will fight, and fight well! Businesses would do better to build more privacy-friendly models from the outset…

3) Governments need to understand the needs and abilities of the people – as well as the needs of businesses and business lobby groups. People are getting more and more aware and more and more able to articulate their needs and make their views known – and to wield powers beyond the understanding of most governments. The recent resistance to SOPA and PIPA in the US is perhaps another example – though the fact that people’s interests coincided with those of internet powerhouses like Wikipedia and Google may have been even more important.

This last point is perhaps the most important. Governments all over the world seem to be massively underestimating the influence and power of people, particularly people on the internet. People will fight for what they want – and, more often than governments realise, they will find ways to win those fights. There needs to be a significant shift in the attitude of those governments if we are not to have more conflicts of the sort that caused such a mess over Phorm. There are more conflicts already on the horizon – from the judicial review of the Digital Economy Act to the shady agreement that is ACTA. There will be a lot of mess, I suspect, much of which could be avoided if ‘authorities’ understood what we wanted a bit more.  The people of the net are starting to get mad, and they’re not going to take it anymore.

10 things I hate about the ICO

With apologies to William Shakespeare, Elizabeth Barrett Browning, Heath Ledger, Julia Stiles and many more…

10 things I hate about the ICO

I hate the way you ask for teeth but seem afraid to bite
I hate the way you think the press are far too big to fight
I hate the way you always think that business matters most
Leaving all our online rights, our privacy, as toast

I hate the way you keep your fines for councils and their kind
While leaving business all alone, in case the poor dears mind
I hate the way you take the rules that Europe writes quite well
And turn them into nothing much, as far as we can tell

I hate the way that your advice on cookies was so vague
Could it possibly have been, you were a touch afraid?
I hate the way you talked so tough to old ACS Law
But when it came to action, it didn’t hurt for sure

I hate the way it always seems that others take the fore
While you sit back and wait until the interest is no more
I hate that your investigations all stop far too soon
As PlusNet, Google and BT have all found to their boon

I hate the way you tried your best to hide your own report
‘Bury it on a busy day’; a desperate resort!
You should be open, clear and fair, not secretive and poor
We’ll hold you up for all to see – we expect so much more!

I hated how when Google’s cars were taking all our stuff
You hardly seemed to care at all – that wasn’t near’ enough
Even when you knew the truth, you knew not what to do
It took the likes of good PI to show you where to go…

I hated how my bugbears Phorm, didn’t get condemned
Even when their every deed could not help but offend
You let them off with gentle words, ‘must try harder’ you just said
Some of us, who cared a lot, almost wished you dead

You tease us, tempt us, give us hope – then let us down so flat
We think you’re on our side – you’re not – and maybe that is that!
Will all these bad things ever change? We can but hope and dream
That matters at the ICO aren’t quite as they might seem.

We need you, dearest ICO, far more than we should
We’d love you if you only tried to do the job you could
We’d love you if you stood up tall, and faced our common foes
Until you do, sad though it is, then hatred’s how it goes.

P.S. I don’t really hate the ICO at all really…. this is ‘poetic’ licence!