Guest post: A rebuttal of what constitutes discrimination

Guest post by Super__Cyan

On 11 November 2016, Jamie Foster, a solicitor had an opinion piece posted on countrysquire titled Trump, Brexit and a new Freedom. Foster begins with a critique about the left wing intelligentsia and their political correctness which was shattered by Brexit and the election of Donald Trump. Foster remarks that free speech is breaking bounds much to the anxiety of its guardians. Of course, Foster continues with his critique of ‘experts’ and the like, but for the sake of this post, it’s not relevant for this discussion, so let’s just skip it right?

Foster asks, does Brexit and Tump bring a new Dark Age upon us? Foster quite rightly eludes to that it is more complicated than that. He then remarks about what he perceives as the overzealous use of phrases like ‘racist, sexist, homophobe’ to anyone inadvertently stepping on a taboo, which he argues has bred contempt. Of course, ‘taboo’ is not defined in this regard, so makes it difficult to make an assessment of what Foster may have meant. And sure, blindly saying anything and everything is racist, sexist and homophobic devalues the meaning of important phrases, phrases that should never be lost or forgotten, but that all depends upon context. Foster is also right to highlight that ‘[d]iscriminating against individuals on the basis of a prejudicial reaction to a characteristic common to a group is wrong.’

This is, however, when opinions sharply diverge. Foster argues that ‘labelling people you have never met as ‘racist, sexist or homophobic’ on the basis of words that you don’t like’ also amounts to prejudicial discrimination. First of all, that depends on the words in question used, which Foster does not elaborate upon. They may not be liked because they are racist, sexist or homophobic. Secondly, it may not be the person per se that is labelled a racist, sexist or homophobe, but the choice or words used. Thirdly, if it required actually meeting someone to establish whether they are racist, sexist or homophobic, then what is even the point of the internet? Fourthly, context is key. Foster follows that ‘[i]t is a prejudicial discrimination where a human being is branded as unworthy because they have dared to say something wrong.’ Here, Foster conflates calling someone a racist, sexist or homophobe as being unworthy when that may not be the case, depending upon the meaning attached by the person making the accusation, one could argue, such an ideology is dangerous. One does not need to document the many horrors of intolerance of others to hammer this point home. Foster implicitly admits that an accusation of racism, sexism and homophobia may stem from something wrongly said. And of course, Foster does not define what ‘wrong’ means in this context, as saying something factually incorrect could constitute racism, sexism, or homophobia, as is saying something that is based on a characteristic that is generalised to a group could also be wrong i.e. all black people are criminals, all women should stay in the kitchen. The presumption, is based on a clear characteristic i.e. race and gender. This of course, also accords with Foster’s own inclination to rely on ‘prejudicial reactions.’ What we have here, is Foster trying to equate a fundamental characteristic of a person with a possible opinion of another, they are not analogous. To do so would devalue the importance of said characteristic whilst simultaneously elevating a possible opinion.

Foster further argues prejudice is important and not the target. This ignores that the target is fundamental to determining whether or not discrimination has occurred. Foster continues that it is no worse to prejudice a black person than a white person. This is correct, but Foster himself identifies the target in both instances, the black and white person and therefore is betrayed by his own logic. If one targets a person because they are white or black, this highlights the importance of consideration for the target. Not considering the importance of a target would defeat the purpose of non-discrimination laws, because to what criteria is it to be assessed that discrimination has in fact occurred?

Foster then ironically states that terms like ‘racist’ and ‘sexist’ exist only to ‘to allow the user their own prejudices while condemning those of others’ therefore implying those who use the term are projecting their own prejudices. Ironic because prejudice can be inferred from such a statement where Foster himself earlier notes ‘[a]ny chance of persuading them to a different view is lost.’ If one has already formed a view that words such as ‘racist’ and ‘sexist’ are used for projection, then any chance of persuading them to a different view is equally lost. Furthermore, these prejudices are of course, not defined. There is no attempt to discern genuinely calling out racism, sexism and homophobia from the potential of it being used overzealously and carelessly. Foster calls for the challenging of prejudice, but not to fall prey to dehumanising those guilty of it. This sounds a lot like suggesting that one should not call someone racist, sexist or homophobic, if and when they are, whilst also ignoring the fact that calling people racist, sexist and homophobic can be the beginning of the challenge. Sometimes this can be followed by an explanation as to why it is believed what was said was racist, sexist or homophobic ‘this is x because…’, sometimes this may not be necessary.

Foster argues, tolerance is the willingness to put up with things we do not like. Sure, British weather can be unpredictably awful at times, and I deal with it because there is nothing I can do about it, bar moving. But putting up with things that someone does not like is not the same as expecting one to tolerate discrimination, because discrimination is discrimination irrespective of whether it is liked or not. Foster argues that discrimination ‘is a valuable tool that allows us to distinguish between that which is good and useful and that which isn’t.’ But that entirely depends upon the discriminatory measure at hand, and what is defined as ‘good’ and ‘useful.’ Foster highlights that being indiscriminate used to be frowned upon. But guess what? Not only can this still be frowned upon, in some instances it can be illegal. Foster continues that we should not confuse discrimination with prejudice, whilst also maintaining that prejudicial discrimination is wrong. This fails to acknowledge that discrimination need not be prejudicial to be wrong, all that is required is a difference in treatment of those in an analogous situation without objective justification.

Foster makes note that we should tolerate what is lawful and refuse to tolerate what is not. Then I suggest it is important to consider the law on this matter. There are various forms of non-discrimination laws set forth by the European Union (EU) and the Council of Europe (CoE). But because we are supposed to be leaving the EU, it is useful to just consider discrimination from the perspective of the CoE, namely Article 14 of the European Convention on Human Rights (ECHR) which states that:

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 is not a standalone right, and can only be utilised when in conjunction with another Convention Right. But it does create a non exhaustive list of characteristics that can be discriminated against, in particular it is noted that ‘political or other opinion’ can indeed be discriminated upon. The Handbook on European non-discrimination law highlights that this may be ‘where a particular conviction is held by an individual but it does not satisfy the requirements of being a ‘religion or belief’’ (p117). This seems to equate the political opinion for the purposes of Article 14 to be on a similar level of religion or belief, not just an ‘I like coffee’ opinion. It was further suggested that:

As with other areas of the ECHR, ‘political or other opinion’ is protected in its own right through the right to freedom of expression under Article 10, and from the case-law in this area it is possible to gain an appreciation of what may be covered by this ground. In practice it would seem that where an alleged victim feels that there has been differential treatment on this basis, it is more likely that the ECtHR would simply examine the claim under Article 10. (p.117).

And so it begins to unravel that this may not even be a discrimination issue at all, but one of freedom of expression. The European Court of Human Rights (ECtHR) in Handyside v. United Kingdom noted that:

Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued. (para 49).

And so from the ECtHR’s case law, it is clear that freedom of expression can allow us to be utter shits, but this can be subject to limitations, depending upon the manner to which we are utter shits. In Erbakan v. Turkey (in French) the ECtHR held that:

…[T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance…(para 56).

In the ECtHR’s admissibility decision in Seurot v. France (in French) it was maintained that:

[T]here is no doubt that any remark directed against the Convention’s underlying values would be removed from the protection of Article 10 [freedom of expression] by Article 17 [prohibition of abuse of rights].

Such intolerance and exclusion from Article 10 includes anti-Semitism, racial hate, homophobia etc. In essence, what the ECtHR are saying is that you cannot be a racist or say racist things, and then cry about it afterwards provided that the consequences are proportionate.

What about calling out racism? Is this problematic? It wouldn’t seem so. The case of Jersild v. Denmark was an ECtHR Grand Chamber (GC) case that concerned a journalist who had made a documentary which contained abusive opinions towards immigrants and ethnic groups from young people calling themselves the ‘Greenjackets.’ The journalist was convicted of aiding and abetting the dissemination of racist remarks. The journalist alleged a breach of Article 10. The GC emphasised that it was ‘particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations’ (para 30). The GC noted that the feature sought to ‘expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes’ and ‘thus dealing with specific aspects of a matter that already then was of great public concern’ (para 33). The GC also noted that the journalist rebutted some of the racist statements although not explicitly ‘recall[ing] the immorality, dangers and unlawfulness of the promotion of racial hatred and of ideas of superiority of one race’ (para 34). In the end, the GC found a violation of Article 10 (para 37). This clearly demonstrates that challenging racism is protected by the same freedom of expression Foster was adamantly advocating for at the beginning of his article. Foster then, ironically gradually moves onto attacking the very thing he sought to defend. It’s ok to say things that are wrong or comment on the taboo, but you shouldn’t be called a racist, sexist, homophobe even if those sentiments ring true because they dehumanise the person making the comment?

Under UK law under the Equality Act 2010, there are provisions of non-discrimination; one notably is ‘philosophical belief.’ In Olivier v Department for Work and Pensions ET/1701407/2013 it was noted by the Employment Appeal Tribunal that a philosophical belief must be a ‘belief, not an opinion or viewpoint’ which ‘must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.’ This poses two problems for Foster’s analysis. First of all, if it is an opinion i.e. vote Trump, vote Brexit, then it is not a characteristic that can be discriminated against. Secondly, if that opinion is a racist, sexist, or homophobic one, it cannot be regarded as worthy of respect, or compatible with the fundamental rights of others, and therefore, again, cannot be discriminated against.

Of course, calling out racism is subject to the laws of defamation and libel for example if such calling out does not ring true as Frankie Boyle demonstrated in 2012. However, across the pond in France, Marie Le Pen, leader of the French National Party, on two occasions did not have similar successes when called a ‘fascist.’

Racism, sexism, homophobia are the objects of discrimination, never the subjects to it. And when one of the prominent figures for leaving the EU feels that race discrimination laws should be scrapped, refused to support same sex marriage and supported its discrimination, it creates an association based on intolerance. This is not to quantify how many ‘racist, sexist, and homophobic’ votes Trump or leaving the EU gained, but to highlight the futility in ignoring that it did pander to those ideologies. Calling someone racist, sexist or homophobe can be correct at best, or ignorant, offensive and defamatory at worst, but never discriminatory.

Finally, Foster notes that people should put down their labels and sanctimony, and talk, because ‘It’s good to talk.’ In response to this it is stressed that these labels exist for a reason, a good talk cannot begin by controlling the narrative as to deny their existence and importance. These labels are important, it’s the exercise of those labels where a good talk can only begin.

A better debate on surveillance?

Back in 2015, Andrew Parker, the head of MI5, called for a ‘mature debate’ on surveillance – in advance of the Investigatory Powers Bill, the surveillance law which has now almost finished making its way through parliament, and will almost certainly become law in a few months time. Though there has been, at least in some ways, a better debate over this bill than over previous attempts to update the UK’s surveillance law, it still seems as though the debate in both politics and the media remains distinctly superficial and indeed often deeply misleading.

It is in this context that I have a new academic paper out: “Data gathering, surveillance and human rights: recasting the debate”, in a new journal, the Journal of Cyber Policy. It is an academic piece, and access, sadly, is relatively restricted, so I wanted to say a little about the piece here, in a blog which is freely accessible to all – at least in places where censorship of the internet has not yet taken full hold.

The essence of the argument in the paper is relatively straightforward. The debate over surveillance is simplified and miscast in a number of ways, and those ways in general tend to make surveillance seem more positive and effective that it is, and with less broad and significant an impact on ordinary people than it might have. The rights that it impinges are underplayed, and the side-effects of the surveillance are barely mentioned, making surveillance seem much more attractive than should be – and hence decisions are made that might not have been made if the debate had been better informed. If the debate is improved, then the decisions will be improved – and we might have both better law and better surveillance practices.

Perhaps the most important way in which the debate needs to be improved is to understand that surveillance does not just impact upon what is portrayed as a kind of selfish, individual privacy – privacy that it is implied does not matter for those who ‘have nothing to hide’ – but upon a wide range of what are generally described as ‘civil liberties’. It has a big impact on freedom of speech – an impact that been empirically evidenced in the last year – and upon freedom of association and assembly, both online and in the ‘real’ world. One of the main reasons for this – a reason largely missed by those who advocate for more surveillance – is that we use the internet for so many more things than we ever used telephones and letters, or even email. We work, play, romance and research our health. We organise our social lives, find entertainment, shop, discuss politics, do our finances and much, much more. There is pretty much no element of our lives that does not have a very significant online element – and that means that surveillance touches all aspects of our lives, and any chilling effect doesn’t just chill speech or invade selfish privacy, but almost everything.

This, and much more, is discussed in my paper – which I hope will contribute to the debate, and indeed stimulate debate. Some of it is contentious – the role of commercial surveillance the interaction between it and state surveillance – but that too is intentional. Contentious issues need to be discussed.

There is one particular point that often gets missed – the question of when surveillance occurs. Is it when data is gathered, when it is algorithmically analysed, or when human eyes finally look at it. In the end, this may be a semantic point – what technically counts as ‘surveillance’ is less important than what actually has an impact on people, which begins at the data gathering stage. In my conclusion, I bring out that point by quoting our new Prime Minister, from her time as Home Secretary and chief instigator of our current manifestation of surveillance law. This is how I put it in the paper:

“Statements such as Theresa May’s that ‘the UK does not engage in mass surveillance’ though semantically arguable, are in effect deeply unhelpful. A more accurate statement would be that:

‘the UK engages in bulk data gathering that interferes not only with privacy but with freedom of expression, association and assembly, the right to a free trial and the prohibition of discrimination, and which puts people at a wide variety of unacknowledged and unquantified risks.’”

It is only when we can have clearer debate, acknowledging the real risks, that we can come to appropriate conclusions. We are probably too late for that to happen in relation to the Investigatory Powers Bill, but given that the bill includes measures such as the contentious Internet Connection Records that seem likely to fail, in expensive and probably farcical ways, the debate will be returned to again and again. Next time, perhaps it might be a better debate.

Guest post: Turkey, the ECHR and the Death Penalty

Guest post  by Super Cyan:

The ECHR prevents the death penalty whatever the circumstances and leaving is not that simple

Following the failed military coup, the mass detention, sacking of judges and banning of academic travel, Turkey are now in the midst of suspending the European Convention on Human Rights (ECHR). There has been some concern that this measure has taken place to reintroduce the death penalty.

Not only has it been pointed out that Turkey has signed and ratified Protocol 13 (which concerns the abolition of the death penalty in all circumstances) by Matthew Scott (@Barristerblog), but this as pointed out by Steve Peers and Shohib Khan under Article 15 of ECHR (which concerns derogations in times of war and emergency), Article 2 (the right to life) and Article 3 (prohibition of torture) cannot be derogated from.

Add to this is Protocol 6 (which Turkey has signed and ratified)which concerns the abolition of the death penalty, Article 3 of that Protocol maintains that no derogations of this Protocol can be made under Article 15. Interestingly, Article 2 of that same Protocol seemingly allows States to make provisions for the death penalty in respect of acts committed in times of war or imminent threat of war (which is not the situation in Turkey in any event). However, read with Article 3 of Protocol 6, Protocol 13 and Article 15, Article 2 of Protocol 6 would be prohibited in any circumstances.

Suspension not derogation?

Guillaume Champeau has pointed out that Turkey may not be derogating from the Convention, but suspending or denouncing its membership via Article 58 of the Convention. However, to do so would require Turkey to give the Secretary General of the Council of Europe six months notice. If Turkey decides to denounce without the six months notice (because it assumed this is to be done immediately), this is clearly contrary to Article 58 itself. Under Article 8 of the Statute of the Council of Europe the Committee of Ministers can request any Council of Europe member to withdraw under Article 7 for violating Article 3 of the Statute. Article 3 stipulates that every member must:

‘[A]ccept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.’

By not adhering to the six month notification requirement of Article 58, it could well be suggested that Turkey is not accepting of the principles of the rule of law, by acting contrary to it. Then of course there is what has been mentioned above in the aftermath of the coup which many will say is not respecting human rights and fundamental freedoms especially now that spreading exaggerated news could be a crime (putting, not just journalists, but anyone who uses social media under threat).

Regarding Article 7, if Turkey notify the Secretary General by September, withdrawal could take effect at the end of the financial or fiscal year which would be at the end of 2016 (Turkey’s fiscal year is the calendar year). If the notification is given after September the 30^th, Turkey would have to wait until the end of 2017. Under Article 58(2), Turkey would still have to respect the Convention up until that point. However, if Turkey does trigger the Committee of Ministers to act under Article 8 to force withdrawal, it is unlikely that Turkey would refuse (because that is the intention right?), and if they did the Committee can unilaterally expel them (which again might be the intention).

Suspension is not unprecedented in the history of the Council of Europe, here are the lists and reasons for suspension:

— Greece, following the installation of the Colonels’ military dictatorship in 1967. Greece withdrew from the organisation in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime.

— Turkey, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place.

— Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

Conclusions:

Turkey’s future in the Council of Europe is in considerable jeopardy. If Turkey reinstates the death penalty, whether or not they derogate from Article 15, they will be expelled. If Turkey suspends its membership without properly adhering to Article 58, they could be suspended. If Turkey’s post coup reaction is serious enough, they could be suspended or expelled. If Turkey does lose its Council of Europe status, then it is the people of Turkey who will suffer the most because Turkey will be relinquished of all the ECHR obligations (Article 58(3)). Worryingly, it may not be a question of if or could, but when will Turkey be suspended or expelled.

Panama, privacy and power…

David Cameron’s first reaction to the questions about his family’s involvement with the Mossack Fonseca leaks was that it was a ‘private matter’ – something that was greeted with a chorus of disapproval from his political opponents and large sections of both the social and ‘traditional’ media. Privacy scholars and advocates, however, were somewhat muted – and quite rightly, because there are complex issues surrounding privacy here, issues that should at the very least make us pause and think. Privacy, in the view of many people, is a human right. It is included in one form or another in all the major human rights declarations and conventions. This, for example, is Article 8 of the European Convention on Human Rights:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Everyone. Not just the people we like. Indeed, the test of your commitment to human rights is how you apply them to those who you don’t like, not how you apply them to those that you do. It is easy to grant rights to your friends and allies, harder to grant them to your enemies or those you dislike. We see how many of those who shout loudly about freedom of speech when their own speech is threatened are all too ready to try to shut out their enemies: censorship of extremist speech is considered part of the key response to terrorism in the UK, for example. Those of us on the left of politics, therefore, should be very wary of overriding our principles when the likes of David Cameron and George Osborne are concerned. Even Cameron and Osborne have the right to privacy, we should be very clear about that. We can highlight the hypocrisy of their attempts to implement mass surveillance through the Investigatory Powers Bill whilst claiming privacy for themselves, but we should not deny them privacy itself without a very good cause indeed.

Privacy for the powerful?

And yet that is not the whole story. Rights, and human rights in particular, are most important when used by the weak to protect themselves from the powerful.The powerful generally have other ways to protect themselves. Privacy in particular has at times been given a very bad name because it has been used by the powerful to shield themselves from scrutiny. A stream of philandering footballers have tried to use privacy law to prevent their affairs becoming public – Ryan Giggs, Rio Ferdinand and John Terry. Prince Charles’ ultimately unsuccessful attempts to keep the ‘Black Spider Memos’ from being exposed were also on the basis of privacy. The Catholic Church covered up the abuses of its priests. Powerful people using a law which their own kind largely forged is all too common, and should not be accepted without a fight. As feminist scholar Anita Allen put it:

“[it should be possible to] rip down the doors of ‘private’ citizens in ‘private’ homes and ‘private’ institutions as needed to protect the vital interests of vulnerable people.”

This argument may have its most obvious application in relation to domestic abuse, but it also has an application to the Panama leaks – particularly at a time when the politics of austerity is being used directly against the vital interests of vulnerable people. Part of the logic of austerity is that there isn’t enough money to pay for welfare and services – and part of the reason that we don’t have ‘enough’ money is that so much tax is being avoided or evaded, so there’s a public interest in exposing the nature and scale of tax avoidance and evasion, a public interest that might override the privacy rights of the individuals involved.

How private is financial information?

That brings the next question: should financial or taxation information be treated as private, and accorded the strongest protection? Traditions and laws vary on this. In Norway, for example, income and tax information for every citizen is publicly available. This has been true since the 19th century – from the Norwegian perspective, financial and tax transparency is part of what makes a democratic society function.

It is easy to see how this might work – and indeed, an anecdote from my own past shows it very clearly. When I was working for one of the biggest chartered accountancy firms back in the 80s, I started to get suspicious about what had happened over a particular pay rise – so I started asking my friends and colleagues, all of whom had started with the firm at the same time, and progressed up the ladder in the same way, how much they were earning, I discovered to my shock that every single woman was earning less than every single man. That is, that the highest paid woman earned less than the lowest paid man – and I knew them well enough to know that this was in no way a reflection of their merits as workers. The fact that salaries were considered private, and that no-one was supposed to know (or ask) what anyone else was earning, meant that what appeared to me once I knew about it to be blatant sexism was kept completely secret. Transparency would have exposed it in a moment – and probably prevented it from happening.

In the UK, however, privacy over financial matters is part of our culture. That may well be a reflection of our conservatism – if functions in a ‘conservative’ way, tending to protect the power of the powerful – but it is also something that most people, I would suggest, believe is right. Indeed, as a privacy advocate I would in general support more privacy rather than less. It might be a step too far to suggest that all our finances should be made public – but not, perhaps, that the finances of those in public office should be private. The people who, in this case, are supporting or driving policies should be required to show whether they are benefiting from those policies – and whether they are being hypocritical in putting those policies forward. We should be able to find out whether they personally benefit from tax cuts or changes, for example, and whether they’re contributing appropriately when they’re requiring others to tighten their belts.

I do not, of course, expect any of this to happen. In the UK in particular the powerful have far too strong a hold on our politics to let it happen. That then brings me to one more privacy-related issue exposed by the Panama papers. If there is no legal way for information that is to the public benefit to come out, what approach should be taken to the illegal ways that information is acquired. There have been many other prominent examples – Snowden’s revelations about the NSA, GCHQ and so on, Hervé Falciani’s data from HSBC in Switzerland in particular – where in some very direct ways the public interest could be said to be served by the leaks. Are they whistleblowers or criminals? Spies? Should they be prosecuted or cheered? And then what about other hackers like the ‘Impact Team’ who hacked Ashley Madison? Whether each of them was doing ‘good’ is a matter of perspective.

Vulnerability of data…

One thing that should be clear, however, is that no-one should be complacent about data security and data vulnerability. All data, however it is held, wherever it is held, and whoever it is held by, is vulnerable. The degree of that vulnerability, the likelihood of any vulnerability being exploited and so forth varies a great deal – but the vulnerability is there. That has two direct implications for the state of the internet right now. Firstly, it means that we should encourage and support encryption – and not do anything to undermine it, even for law enforcement purposes. Secondly, it means that we should avoid holding data that we don’t need to hold – let alone create unnecessary data. The Investigatory Powers Bill breaks both of those principles. It undermines rather than supports encryption, and requires the creation of massive amounts of data (the Internet Connection Records) and the gathering and/or retention of even more (via the various bulk powers). All of this adds to our vulnerability and our risks – something that we should think very, very hard before doing. I’m not sure that thinking is happening.

 

That British Bill of Rights…

The much discussed ‘British Bill of Rights’ is already being drafted. I can exclusively bring you some extracts* of the current draft.

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Article 1 – Right to Life

Everyone shall have the right to life, unless their death is deemed necessary in the interests of national security, or if they cannot afford the relevant insurance to pay for hospital bills.

—-

Article 6 – Right to a Fair Trial

Everyone shall have the right to a fair trial unless they cannot afford it or the Home Secretary should decide that such a trial is not necessary in the interests of national security

—-

Article 8 – Right to a Private Life

Everyone shall have the right to respect for their private and family life, except if any intrusion in that private or family life is performed by the police, the security services, tabloid newspapers, Google, Facebook or any other commercial enterprise as agreed with the Secretary of State for Business, Innovation and Skills.

—-

Article 10 – Right to Freedom of Expression

Everyone shall have the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, except if such information is deemed unsuitable, extreme, or otherwise inappropriate by the Home Secretary, the Prime Minister, Rupert Murdoch, Paul Dacre or the Taxpayers Alliance

—-

Article 11 – Freedom of assembly and association

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, excluding the right to form and to join trade unions for the protection of his interests, and excluding any form of assembly or association that the Home Secretary should deem disorderly, embarrassing, annoying or otherwise objectionable.

—-

Article 12 – Right to Marriage

Everyone has the right to marry and found a family, but the choice of partner shall be considered subject to approval by the Home Secretary, the Minister for Inequality and the media.

—-

Scope of these rights

These rights shall be accorded to all British Citizens, except Scots, Welsh people, Irish people, those who the Home Secretary determines are undeserving of rights, or decides to strip citizenship from, or are determined by the media to be scroungers, immigrants or children of immigrants, internet trolls or persons otherwise objectionable in what the Prime Minister deems to be a democratic society.”

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This is understood to be the current draft, but it is believed that certain members of the cabinet believe these rights are too extensive and too generous.

*This may not actually be the real thing.

Ethical policing of the internet?

The question of how to police the internet – and how the police can or should use the internet, which is a different but overlapping issue – is one that is often discussed on the internet. Yesterday afternoon, ACPO, the Association of Chief Police Officers, took what might (just might, at this stage) be a step in a positive direction towards finding a better way to do this. They asked for help – and it felt, for the most part at least, that they were asking with a genuine intent. I was one of those that they asked.

It was a very interesting gathering – a lot of academics, from many fields and most far more senior and distinguished than me – some representatives of journalism and civil society (though not enough of the latter), people from the police itself, from oversight bodies, from the internet industry and others. The official invitation had called the event a ‘Seminar to discuss possible Board of Ethics for the police use of communications data’ but in practice it covered far more than that, including the policing of social media, politics, the intelligence services, data retention and much more.

That in itself felt like a good thing – the breadth of discussion, and the openness of the people around the table really helped. Chatham House rules applied (so I won’t mention any names) but the discussion was robust from the start – very robust at one moment, when a couple of us caused a bit of a ruction and one even almost got ejected. That particular ruction came from a stated assumption that one of the weaknesses of ‘pressure groups’ was a lack of technical and legal knowledge – when those of us with experience of these ‘pressure groups’ (such as Privacy International, the Open Rights Group and Big Brother Watch) know that in many ways their technical knowledge is close to as good as it can be. Indeed, some of the best brains in the field on the planet work closely with those pressure groups.

That, however, was also indicative of one of the best things about the event: the people from ACPO were willing to tell us what they thought and believed, and let us challenge them on their assumptions, and tell them what we thought. And, to a great extent, we did. The idea behind all of this was to explore the possibility of establishing a kind of ‘Board of Ethics’ drawing upon academia, civil society, industry and others – and if so, what could such a board look like, what could and should it be able to do, and whether it would be a good idea to start with. This was very much early days – and personally I felt more positive after the event than I did before, mainly because I think many of the big problems with such an idea were raised, and the ACPO people did seem to understand them.

The first, and to me the most important. of those objections is to be quite clear that a board of this kind must not be just a matter of presentation. Alarm bells rang in the minds of a number of us when one of the points made by the ACPO presentation was that the police had ‘lost the narrative’ of the debate – there were slides of the media coverage, reference to the use of the term ‘snoopers’ charter’ and so forth. If the idea behind such a board is just to ‘regain the narrative’, or to provide better presentation of the existing actions of the police so as to reassure the public that everything is for the best in the best of all possible worlds, then it is not something that many of the people around the table would have wanted to be involved in.  Whilst a board like this could not (and probably should not) be involved in day-to-day operational matters, it must have the ability to criticise the actions, tactics and strategies of the police, and preferably in a way that could actually change those actions, tactics and strategies. One example given was the Met Police’s now notorious gathering of communications data from journalists – if such actions had been suggested to a ‘board of ethics’ that board, if the voices around the table yesterday were anything to go by, would have said ‘don’t do it’.  Saying that would have to have an effect – or if it had no effect, would have had to be made public – if the board is to be anything other than a fig leaf.

I got the impression that this was taken on board – and though there were other things that also rang alarm bells in quite a big way, including the reference on one of the slides to ‘technology driven deviance’ and the need to address it (Orwell might have rather liked that particular expression) it felt, after three hours of discussion, as though there were more possibilities to this idea than I had expected at the outset. For me, that’s a very good thing. The net must be policed – at least that’s how I feel – but getting that policing right, ensuring that it isn’t ‘over-policed’, and ensuring that the policing is by consent (which was something that all the police representatives around the table were very clear about) is vitally important. I’m currently far from sure that’s where we are – but it was good to feel that at least some really senior police officers want it to be that way.

I’m not quite clear what the next steps along this path will be – but I hope we find out soon. It is a big project, and at the very least ACPO should be applauded for taking it on.

Knights of the ISC Round Table….

Yesterday I took part in the ’round table sessions’ of the Intelligence and Security Committee of Parliament’s ‘Privacy and Security Inquiry’. It was an interesting event – and an enjoyable one, though I hope that doesn’t mean that I’ve already begun the process of being ‘captured’ by the intelligence community. The round table sessions are part of the bigger inquiry – accompanied by public evidence sessions which are continuing through the week.

The whole thing was very informal – I found myself sitting next to Sir Malcolm Rifkind and opposite Lord Lothian around a small, round table, one of three such tables in the room. Yes, the round table sessions really involved round tables. Essentially, we had an hour to chat about whatever issues we felt mattered to the inquiry – we had been invited on the basis of the written evidence we had submitted to the inquiry, back in February this year (mine can be found here). Around the table were an academic computer scientist, what I would call a ‘real’ programmer, a human rights activist, myself, a former lawyer for MI5 and MI6, and the two members of the committee, Sir Malcolm Rifkind and Lord Lothian.

There were some very positive things about the discussion – both Rifkind and Lothian appeared to agree, after some resistance, on the first major point that we tried to argue (primarily myself and Izza Leghtas from Human Rights Watch): that the privacy invasion, and hence the first set of proper controls, need to be at the gathering stage, not the accessing stage for data. That, in practice, less data should be gathered and held, and for shorter periods. Moreover, that there should be judicial involvement at the gathering stage – indeed, David Bickford, former Legal Director for MI5 and MI6, thought judges should be involved far more in the whole process, from beginning to end, following the French model.

As part of that discussion, they really did appear to take on board that there are serious risks involved in just gathering and holding data – and seemed to be listening as we listed them!

Other points of agreement were that RIPA is, basically, an awful mess. Rifkind readily admitted that he really didn’t understand it. What that says for his (and the committee’s) ability to oversee the intelligence services is another matter. The feeling from all concerned was that whatever else happens, the law needs review and it needs to be clearer what it actually does – whether directly in the law or in accompanying guidance. It would be nice to see – but I am not holding my breath.

Three particularly interesting things that came out of our brief discussion – and it was brief, because the hour we had went very fast. The first was that Sir Malcolm Rifkind made a very clear differentiation between the intelligence services and the other groups who can use RIPA. He made the argument that the intelligence services really can’t do you any harm unless you’re one of the ‘bad guys’ – and though this was perilously close to saying ‘if you’ve got nothing to hide’ he did acknowledge that it was not an argument that worked in relation to the police, to local authorities or to the other various bodies that utilise surveillance or gathered data. He seemed to suggest that all of those bodies – including the police – need much tighter controls. In the light of the current issues regarding police access to journalists’ communications data, this makes sense, but again it will be interesting to see whether it really amounts to anything.

The second was that David Bickford made the specific comment that if corporations do all the data gathering, analysis and so forth, then surely the intelligence services should be able to do the same. Why should we place more restrictions on the intelligence services than we do on Google and Facebook? When I suggested that perhaps this means that we should put more restrictions on Google and Facebook rather than less on the intelligence services, he laughed a bit, but did seem to get the point.

The third was that both Lord Lothian and Sir Malcolm Rifkind noted that the Human Rights Act provided protection – and when I teased him about the planned impending doom of the Human Rights Act, Rifkind almost winced, and said that there’s always the ECHR. I got the distinct feeling that Rifkind is not enamoured of Grayling’s plan for human rights, though he was far too diplomatic to say so.

Much more was said, and overall it was a good and fairly robust discussion – we all seemed to be able to say what we wanted, and the two committee members seemed genuinely to be listening. They are, however, politicians – and they were also very aware of the limitations of their own powers, and how hard it is to change things in this field with any speed. They were keenest of all on increasing transparency, and moving to a position where the default position is that information is disclosed, and is made public, rather than the opposite. I hope this happens….

….but I remain cynical about it all. The question of whether what the committee does actually has any impact on what the security and intelligence services do remains unanswered. Is this all just a PR exercise, or is there some more profound change going on? It will take a lot more than a few round table sessions, even with Knights like Sir Malcolm Rifkind, to convince me. However, I found myself just a smidgen less cynical than I was before the session started. Perhaps I’ve been captured after all.

Surveillance and Consent

I was fortunate enough to speak at the Internet and Human Rights Conference at the Human Rights Law Centre at the University of Nottingham on Wednesday. My talk was on the topic of internet surveillance – as performed both by governments and by commercial entities. This is approximately what I said – I very rarely have fully written texts when I talk or lecture, and this was no exception. As you can see, I had one ‘official’ title, but the talk had a number of alternative titles…

Surveillance and Consent

Or

Big Brother is watching you – and so are his commercial partners

Or

What Edward Snowden can teach us about the commercial Internet

Or

To what do we consent, when we enter the Internet?

In particular, do we consent to surveillance? If we do, by whom? When? And on what terms? There are three parts to this talk:

1) Government surveillance and consent

2) Commercial surveillance and consent

3) Forging a (more) privacy friendly future?

1: Government surveillance and consent.

Big Brother is Watching You. He really is. Some of us have always thought so – even if we’ve sometimes been called conspiracy theorists when we’ve articulated those thoughts. Since the revelations of Edward Snowden this summer, we’ve been taken a bit more seriously – and quite rightly so.

The first and perhaps most important question to ask is why the authorities perform surveillance? Counter-terrorism? That’s the one most commonly mentioned. Detection and enforcement of criminal law? Crime prevention? Prevention of disorder? Dealing with child abuse images and tracking down paedophiles? Monitoring of social trends? There are different degrees to all these areas – and potentially some very slippery slopes. Some of the surveillance is clearly beneficial – but some is highly debatable. When looking in the area of crime and disorder this is particularly true when one considers police tactics in the past, from dealing with the anti-nuclear movements in the sixties, seventies and eighties to the shocking revelation about the infiltration of environmental activists more recently. Even this summer, the government admitted that it monitored people’s social media activities in order to ‘head off’ the badger cull protests. Was that right? Are other forms of ‘social control’ through surveillance acceptable? They should at least raise questions.

When looking at government surveillance, we need to ask what is acceptable? Where do we draw the line? Who draws that line? How much of this do we consent to? There are a number of different ways to look at this.

Societal consent?

Do we, as a societies, consent to this kind of surveillance? It is not at all clear that we do, even in the UK, if the furore that lead to the defeat of the Snoopers Charter is anything to go by, or the reaction to Edward Snowden’s revelations in most of the world (though not so much in the UK) is any guide. Do we, as societies, understand the level of surveillance that our governments are performing? It doesn’t seem likely given the surprise shown as more and more of the reality of the situation is revealed. Can we, as societies, understand all of this? Perhaps not fully, but certainly a lot more than we currently do.

Parliamentary consent?

Do we effectively consent by delegating our decisions to our political representatives? By electing them, are we consenting to their decision-making, both in general and in the particular area of internet surveillance? This is a big political question in any situation – but anyone who has observed MPs, even supposedly expert MPs, knows that the level of knowledge and understanding of either the internet or surveillance is appalling. Labour’s Helen Goodman, the Tories’ Clare Perry, the Lib Dems’ Tom Brake, all of whom have been (and still are) in positions of power and responsibility within their own parties in relation to the internet have a level of understanding that would be disappointing in a secondary school pupil.

The Intelligence and Security Committee, who made their first public appearance in November, demonstrated that they were pretty much entirely incapable of providing the scrutiny necessary to represent us – and to hold Big Brother to account on our behalf. Most of the Home Affairs Committee – and the chair, Keith Vaz, in particular, demonstrated this even more dramatically this Tuesday, when questioning Guardian Editor Alan Rusbridger. Keith Vaz’s McCarthy-esque question to Rusbridger ‘do you love your country’ was sadly indicative of the general tone and level of much of the questioning.

There are some MPs who could understand this, but they are few and far between – Lib Dem Julian Huppert, Labour’s Tom Watson, the Tories’ David Davis are the best and perhaps only real examples, but they are mavericks. None are on the front benches, and none seem to have that much influence on their political bosses. Parliament, therefore, seems to offer little help. Whether it could ever offer that help – whether we could ever have politicians with enough understanding of the issues to act on our behalf in a meaningful way, is another question. I hope so – but I may well be pipe dreaming.

Automatic or assumed consent?

Perhaps none of this matters. Could it this kind of government surveillance something we automatically consent to when we use the Internet? Simply by using the net, do we automatically consent to being observed? Is this the price that we have to pay – and that we can be assumed to be willing to pay – in order to use the internet? Scott McNealy’s infamous quote – you have zero privacy anyway, get over it – may be old enough to represent common knowledge. Can we assume that everyone knows they have no privacy? Would that be reasonable, even if it were true? It isn’t true of the public telephone system – wholesale wiretapping isn’t acceptable or accepted, not even of the metadata.

I don’t think any of these – societal, parliamentary or ‘assumed’ really work, or would be sufficient even if they did – because amongst other things because we simply haven’t known what was going on. Our consent, such as it existed, could not have been informed consent, in either of the two ways that can be understood. We did not have the information. We were deliberately kept in the dark. And experience suggests that when we do know more, we tend to object more – as events like the defeat of the Snoopers’ Charter demonstrate.

Do we know what we are consenting to?

Do we understand what the implications of this surveillance actually are? This isn’t just about privacy, no matter how much people like Malcolm Rifkind tries to frame it that way. It isn’t just about individual either – sometimes through this kind of framing it can seem as though asking for privacy is an act of selfishness, and that we should be ashamed of ourselves, and sacrifice our privacy for the greater good – for security.

This is quite wrong – and in many ways framing it in this way is deliberately deceptive. There is a significant impact on many kinds of human rights, not just on privacy. Freedom of expression is chilled – both by overt surveillance through the panopticon effect and through covert surveillance through the imbalance of power that allows control to be exerted. Freedom of association and assembly are deeply affected – both online through the disruption and chilling of online communities, and offline through the disruption of the organisation of ‘real world’ protest and so forth. There’s more too – profiling can allow for discrimination. Indeed, as we shall see, discrimination of a different form is fundamental to commercial surveillance – so can be easily enabled in other ways. Ultimately, too, it can even impact upon freedom of thought – as profiling develops, it could allow the profiler to know what you want even before you do.

So even if we have given consent before, that consent is not really valid. The internet is not like old-fashioned communications. We do more online than we ever did through other forms of communication The nature of the surveillance itself has changed – and the impact of it. Any old consent that did exist should be revoked. If Big Brother wants to keep watching us, He needs to ask again.

2: Commercial surveillance and consent

This is an issue much closer to the common legal understanding of consent – and one that has been much debated. It’s one of the key subjects of the current discussions over the reform of the data protection regime. Edward Snowden, however, has thrown a bit of a spanner into that debate, and those discussions.

To understand what this means, we need to understand commercial surveillance better. Who does ‘commercial’ surveillance? What do I mean by commercial surveillance? Surveillance where money is the motivation – or, to be more precise, where commercial benefit is the motivation. This means things like behavioural tracking – for various purposes – but it also means profiling, it means analysis, all of which are done extensively by all the big players on the Internet, with little or no real idea of consent.

Does commercial surveillance matter?

Commercial surveillance does not often seem to be something people (other than a few privacy geeks like me) care about that much. It’s just about advertising, isn’t it? Doesn’t do anyone any harm? Opt-out’s OK, those paranoid privacy geeks can avoid it if they want, for the rest of us it’s what pays for the net, right? For people like me, there are big concerns – and in some ways it might matter more for most people than surveillance by the NSA and GCHQ. The idea – the one that’s being sold to us – is that it’s about ‘tailoring’ or ‘personalisation’ of your web experience. We can get more relevant content and and more appropriate advertising…

…but that also means that it can have a real impact on real people, from price and service discrimination to an influence on such things credit ratings, insurance premiums and job prospects. Real things that matter to almost all of us. There’s even the possibility of political manipulation – from personalised political advertising to detailed targeting of key ‘swing’ voters, putting even more political influence into the hands of those with the deepest pockets – for it is the deepest pockets that allow access to the ‘biggest’ data, and the most sophisticated profiling and targeting systems.

What Edward Snowden could teach us…

Some parts of the revelations from Edward Snowden should make us think again. PRISM, in particular, should change people’s attitudes to commercial surveillance. This is what Edward Snowden has to teach us. Look at the purported nature of the PRISM program. ‘Direct access’ to the servers of the big Internet companies – including Google and Facebook. Who does commercial surveillance more than Google and Facebook? What’s more, the interaction between governments and businesses is much closer than it might immediately seem. They share technology – and businesses have even let governments subvert their technology, building backdoors, undermining encryption systems and so forth. They share techniques – and even share data, whether willingly or otherwise.

Shared techniques…

Behavioural profiling is just what governments want to do. Behavioural analysis is just what governments want to do. Behavioural targeting is just what governments want to do Is identifying potential customers any different from identifying potential suspects? Is identifying potential markets any different from identifying potential protest groups (such as those involved in the aforementioned badger cull protest)? Or potential dissidents? Is predicting political trends and political risks any different from predicting market trends? Is ‘nudging’ a market that different from manipulating politics? The Internet companies have built engines to do all the authorities’ work for them (well, OK, most of the authorities’ work for them). They just need to tap into those engines. Tailor them a bit. It’s perfect surveillance, and we’ve helped build it. We’ve ‘consented’ to it.

Who is undermining privacy?

So who is undermining privacy? The spooks with their secret surveillance… ….or the business leaders telling us to share everything and that, as Mark Zuckerberg put it, ‘privacy is no longer a social norm’? This ‘de-normalisation’ of privacy – apologies for the word, which I suspect doesn’t really exist – amounts to an attempt to normalise surveillance. The extent to which this desired and pushed-for ‘de-normalisation’ has contributed to the increasing levels of surveillance is essentially a matter for conjecture, but it’s hard not to see a connection.

Paranoid privacy geeks like me have been warning about for a while – but just because we’re paranoid, it doesn’t mean we’re wrong. In this case, it’s looking increasingly as though we were right all along – and that the situation is even worse than we thought.

Is this what we consented to when we signed up for Facebook? Is this what we consent to each time we do a Google search? Is this what we expect when we watch a YouTube video or play a game of Words with Friends? I don’t think so. With new information there should come new understanding – and a reassessment of the situation. We need to decide.

3: A (more) privacy-friendly future?

A three-way consensus is needed. People, businesses and governments need to come to an agreement about what the parameters are, about what it acceptable. About what we consent to. All three groups have power – but at the moment only the authorities seem to be really wielding theirs.

Imagine what would happen if Facebook’s Mark Zuckerberg, Google’s Sergey Brin, Apple’s Tim Cook and their fellows from Microsoft, eBay, Twitter etc all came together and said to the US government ‘No’! Would they be locked up? Would their companies be viciously punished? It seems unlikely – they are much more powerful than they realise. We often talk about the power of the corporate lobbyists – this power could be wielded in a positive way, not just a negative way…

…but it only will if there’s a profit in it for the companies concerned. And that’s where we come in.

We have a key part to play. We need to keep making noises. We need to keep informing people, keep lobbying. Make sure that the companies know that we care about privacy – and not just in relation to governments. Then the companies might start to make a move that helps us.

There are some signs that this might be the case – from the noises from Zuckerberg and so on about how upset they are about the NSA to the current crop of ‘Outlook.com’ advertisements that proclaim loudly how they don’t scan your emails the way that Google do – though it is difficult to tell whether this is just lip service. They talk a lot about transparency, not so much about a reduction in actual surveillance by government – let alone by themselves. If they can wield this power in our favour it could help a lot – but it will only be wielded in this positive way if we make them. So we must be clear that we do not consent to the current situation. We do not consent to surveillance.