In George Orwell’s 1984 there are tele-screens and hidden microphones dotted liberally around public spaces, but, contrary to what is commonly imagined by those who have never read the book, there is no universal electronic surveillance of people within their homes. There are two-way screens in the apartments of many, especially those of the IngSoc Party members – the only party allowed: think the CP of the Soviet Union with a dash of Nazism – which allow people to be watched and those being watched to interact with the watchers But most of the population – the Proles – do not suffer these direct indignities. They are not considered a threat to IngSoc because of their lack of sophistication which allows them to be manipulated and controlled by the application of mass psychology and a ruthless and proactive censorship which continually re-writes the past.
From the details publicly available, the intention of the David Cameron’s Coalition Government is to pass an Act (http://www.guardian.co.uk/media/2012/apr/02/internet-companies-warn-government-email-surveillance) which will do what Orwell did not imagine: introduce electronic surveillance into every home as well as every place of work or public area where the Internet is used. Indeed, for anyone who uses a mobile phone or similar device to enter the Internet , the surveillance will be complete if the person keeps the phone with them all the time. It will be Big Brother Plus.
The proposed Act will force ISPs to store and, release at the demand of the state, details of who has sent what emails and texts to whom; who has made phone calls to whom and the websites someone has visited, viz: “Under legislation expected in next month’s Queen’s Speech, internet companies will be instructed to install hardware enabling GCHQ – the Government’s electronic “listening” agency – to examine “on demand” any phone call made, text message and email sent, and website accessed in “real time”, The Sunday Times reported.” (http://www.independent.co.uk/news/uk/ws/expansion-of-gchq-internet-monitoring-proposed-7606489.html). Presumably services such as Skype and instant messaging facilities such as Yahoo’s will be encompassed by the legislation. It is also all too easy to imagine every other provider of communications such as search engines being brought within the net.
As things stand, the Government’s intention is not to allow access to the details of phone calls, emails and texts to be accessed without a warrant. But even if that is how the Bill put before the Commons reads it is not much consolation because even if the system is operated honestly , it will probably be easy enough to get a warrant in many cases because the information gained without a warrant can often give an appearance of suspicious activity even where there is no criminal behaviour.
Even without a warrant the state will be able to make considerable breaches in a person’s privacy. Knowing the times people are doing things; identifying the websites people are visiting and the frequency of the visits; knowing how long phone calls have lasted, seeing who people are contacting and the frequency of their contact is information which could provide plausible grounds for suspicion, or at least a case which is plausible enough to provide an arguable justification for the issue of a warrant. It will only be guilt by association, but those issuing warrants may often accept association as sufficient grounds for the issue of a warrant, for example, if terrorist connections are suspected the pressure to grant a warrant would be very strong.
Here are a couple of innocent scenarios which could prompt the granting of a warrant:
- Someone has a strong interest in Middle East politics and regularly visits websites which represent the views of the likes of Hamas or someone wishes to research al Qaeda questions. They would probably go to quite a few sites and perhaps go often, at least over a short period. The police and/or security services suspect that the person is a terrorist.
- Someone without a criminal past unbeknown to them has a friend with a serious criminal past. The police suspect the criminal is about to become active again and the person without a criminal past a criminal associate.
There would immense opportunities for the abuse of power. In the past quarter century Britain has witnessed ever more authoritarian behaviour by governments of all colours which includes either going beyond what the law empowers them to do, for example, the restrictions on free movement during the miners’ strike, or the passing of laws which are simply incompatible with a democracy (the vast array of anti-terrorist legislation and the laws introduced to enforce political correctness such as those relating to “hate crimes” and legislation such as the Race Relations (Amendment) Act 2000 (http://www.legislation.gov.uk/ukpga/2000/34/contents).
The consequence of this array of authoritarian legislation is not only to provide governments and the public bodies which derive from them with considerable legal powers over the individual, but to also make politicians and public servants ever more arrogant in their application of laws. At the same time the general public has developed the type of mentality found in totalitarian states where the individual begins to live in continual fear of ending up in the hands of the police and the justice system or, at best, of losing their employment, if they protest against the growing authoritarianism or breach the ever expanding limits of political correctness. This latter worry is no idle fear as there are now weekly examples of those deemed to have placed themselves beyond the pc Pale appearing in the mainstream media. A drunken student makes some racist comments on twitter and ends up with a 56 day prison sentence while habitual burglars commonly take at least three convictions to go to prison. The England centre half John Terry is alleged to have racially abused another player and is charged with a criminal offence. A young mother Emma West is not only charged with criminal offences after protesting publicly about the effects of mass immigration, but is held in “protective custody” at the nearest England has to a women’s category A prison, despite the fact that she said she did not require protection. The consequence of this growing public fear is to feed the natural arrogance of those with power to become ever more reckless in their destruction of the necessary freedoms upon which a democracy rests.
It is against this background that the proposed massive increase in surveillance must be seen. It is impossible any longer to have faith in any checks and balances put in place to prevent abuse of such new laws. At best those empowered to grant warrants to allow access to the content of emails, texts and possibly phone calls (if these are recorded) will be drawn from the circle of people who are sympathetic generally to those with power. They will , consciously or subconsciously, tend to look with favour on request from those with whom they have a class interest. We see this time and again with government instigated inquiries where a judge or senior public servant is appointed and the inquiry invariably produces a report which avoids damaging a government or politician still in power. The Hutton Inquiry into Dr David Kelly’s death is a first rate example . A great deal of doubt on the official account of Kelly’s death was cast by evidence given before Hutton , yet he produced conclusions which flew in the face of this evidence and simply repeated the line wanted by the government, that Kelly had committed suicide.
There would also be scope outright skullduggery whereby the state actively connived at producing information which would justify a warrant. It would not be difficult to hack into a person’s computer and plant information by visiting compromising websites, for example, child pornography sites. That would then provide prima facie evidence to apply for a warrant. People other than state actors could also engage in this type of behaviour, for example, companies, foreign states and private individuals who wish to harm someone .
Nor is it only material pointing to potentially criminal behaviour which would be brought into play. There is a good deal of information about legal activities which could be used to either blackmail or disrupt a person’s life by releasing information which compromises them. Suppose someone has been visiting legal pornographic sites or their phone contacts suggest an affair is being conducted by someone who is married. Or it could be something political. A person may have been contacting political sites which are represented as being beyond the Pale by a political elite – the BNP in Britain would be a good current example. Secret membership of such a party or even showing an interest in such a party, could easily cost the person their job if it was revealed to their employer. Where a warrant was granted the scope for such harassment by the state would be greatly expanded by the additional information they could access.
Once such a system is established the natural human tendency to reach for information which is easily available will be given ever greater play. Just as DNA has become the go to police investigatory tool regardless of its deficiencies as evidence because of the ease with which it can be planted or contaminated, so will the reference to a person’s digital records become the first port of call for the security services.
There is also the concern that the information seen and collected by the police, security services and other government agencies will not be restricted on a need to know basis. Public bodies have a habit of spreading information, legally or illegally. It is also certain that there will be horrendous data leaks because there always are with unencrypted laptops and memory stick being left or stolen in public places. As the storage of the data will be in the hands of private companies rather than public bodies, the chance of security breaches, whether accidental or deliberate through corrupt practices, is likely to be vast.
Can we stop it?
The Government have met with a good deal of resistance both from within the coalition parties and from outside, with calls to either drop the idea as incompatible with a free society to demands for very strong safeguards such as only a judge being able to grant a warrant. The dropping of the Bill is unlikely because the leadership of all three major parties at Westminster have accepted that something along these lines should be done in the name of national security. The likelihood is a fudge with enough poison in the Bill to contaminate what is left of personal freedom in Britain, for example, the substance of the Bill being left intact with a few sops such as a warrant having to be issued by a magistrate rather than being left, as is the case with much covert surveillance, in the hands of senior police officer to sanction it.
Past experience with legislation such as the Regulation of Investigatory Powers Act (RIPA) shows that whatever the intention of legislators, powers seemingly granted for extreme circumstances are used for humdrum purposes. In the case of the RIPA, councils have freely used surveillance powers designed to be used against terrorists and other serious criminals. It is as certain as anything can be, that the proposed new powers would be similarly abused because laws to be efficient have to be drafted to cover general circumstances not particular ones. For example, it might be suggested that the new law should only apply to those suspected of endangering the security of the country. That would immediately get the lawyers embroiled in a minefield of definition about what constituted such endangerment. Add in all other serious crime and the definitional difficulties multiply.
But even if the new powers were restricted to certain areas of crime, that would not be the end of it. There would be pressure from campaign groups, the general public and politicians to expand it to other areas whenever a crime not covered by the legislation took place could plausibly have been prevented if the powers had been available for that particular class of crime.
The other great general risk is that the system starts off being policed strictly and the restrictions are subsequently relaxed, for example, initially a judge is required to issue a warrant; this is then eroded to a judge or magistrate and finally to a senior police officer.
If the Coalition’s proposals become law they will bring the surveillance of British citizens to something dangerously close to that envisaged by Orwell. Britain is already the most closely watched nation in the world in terms of CCTV cameras per head of population. Some of these cameras are interactive in the 1984 sense with interaction between watched and watcher possible. The ever increasing sophistication of digital technology is making any utterance potentially a public matter through its recording and then placing on websites such as YouTube. The risk of hacking makes all data potentially open to anyone. If the state takes to itself the power to be able to look at anything a person does there will be precious little way to go before Britain is not merely at the state of surveillance Orwell envisaged but beyond it because everyone will be potentially under surveillance.
If the intended Act is passed, all that would left to complete the surveillance jigsaw for modern Britain would be for something akin to Orwell’s two-way screens to be placed in every person’s home. That is the position with the level of present technology. Going further it is probable that in the future machine implants could be made into the human body to monitor our thoughts or our thoughts be captured by some external means such as a form of brain scanning using energy beams to record what we are thinking. Impossible that we should ever allow such things you say? Well, think of the enormous inroads into our personal freedom we have already tolerated without anything beyond a little grumbling at best.
If we allow this proposal to go through Big Brother will, in a limited sense, already be within our homes , indeed, within our lives generally. It will potentially allow our private lives to be revealed to the state without restriction. That is what Winston Smith in 1984 suffered. If we tolerate such an intrusion what argument would we have against the introduction of state surveillance of all our activity, including what we did in our homes? There would be none which carried any great force because we would have already permitted surveillance of a large part of what we do privately . If we are to prevent the ever greater embrace of the state about our personal lives we need to prevent this next step, not the one after.
Human beings have a need for privacy. When you next hear someone moronically parroting “If you have nothing to hide you have nothing to fear” when the question of increased state surveillance is mooted put this question to them: “My I come and stand outside your house with a video camera and record what you were doing in your home? “ I do not think you would find many takers. Then gently remind the person that when it comes to authoritarian governments, especially those driven by ideology, no one can ever be sure what does and does not need to be hidden from the state. What is permissible one day becomes a crime the next.