June 30, 2013

It has been the best of times; it has been the worst of times.

On the one hand, we have had moves towards open data that saw the G8 leaders sign up to the Open Data Charter, some very positive Government responses to the Shakespeare Review of Public Sector Information and impressive commitments to co-operative enforcement by the EU data protection authorities and their international cousins (not just the Article 29 Working Party moves re Google but the Canadian-led Google Glass enquiry shows promise too). On the other hand, we have had Prism.

It seems that everything is pushed towards greater transparency, except for the things that are totally opaque; everything is focused on protection of privacy, except the things that might offer the greatest threat to liberty. While the reaction of the US Government was unsurprising, the UK Government response to allegations of improper use of information passed on to GCHQ was disappointing –’move on, nothing to see here’ might just as well have been William Hague’s response.

I originally thought that I should postpone taking a view on Prism. The responses from many quarters were overly dramatic and the more sober reviews seemed to overlook the fact that US snooping powers were not materially worse than, and generally more controlled than, those of other states. I had always thought that I needed to yield to few as regards levels of suspicion of the US military and the CIA, especially after what the US servicemen did to (or with) my Auntie May during the war, I realise now that I am not really in same league as some of the conspiracy theorists out there. Above all, the facts were unclear and I thought they would become clearer.

As to that last point, it is hard to believe I could be so naïve after all these years. If I wait for the facts to become clear on this one, I will be writing a history book not an editorial.

Let there be no doubt: snooping, or monitoring of behaviour if you prefer, by government agencies reduces illegal and improper behaviour. If every road had a CCTV camera and every traffic light an enforcement camera, fly-tipping and traffic offences would go down. If every MP’s trip and activity was monitored, claims for expenses would drop and cash for questions would refer to the connection between the MP’s salary and his or her questioning of government on matters of concern. But the reality is that we don’t want to be monitored all the time. We just want those engaging in serious criminal behaviour to be watched and prevented from doing harm. It seems that ‘abracadabra’ has been shouldered aside from its long-standing status as the magic word – the new magic word is ‘terrorism’. But, for me at least, it creates no magic. I look at those e-mails I have sent to a leading QC concerning the law on terrorism and to a judge who writes about serious sexual offences and wonder what triggers my metadata are setting off. Who is looking over my shoulder?

This is a complex area. But what worries me is the many who talk of balancing privacy rights against the need for security – security against terrorism or any other monster. It is not about balance. It is about synergy.

The EDPS has recently published his Opinion on the EU Cyber Security Strategy. I commend it to you. Peter Hustinx has grasped that there has to be more than balance. He said:

‘There is no security without privacy. So I am delighted that the EU strategy recognises that it is not a case of privacy versus cyber security but rather privacy and data protection are guiding principles for it. However, the ambitions of the strategy are not reflected in how it will be implemented. We acknowledge that cyber security issues have to be addressed at an international level through international standards and cooperation. Nevertheless, if the EU wants to cooperate with other countries, including the USA, on cyber security, it must necessarily be on the basis of mutual trust and respect for fundamental rights, a foundation which currently appears compromised’. 

In a very limited sense, I trust our government not to misuse data. We do not have the Stasi nor should we be so hysterical about intrusions as to suggest we do – not least because it is insulting to those who are still genuinely living under crushingly repressive regimes. But I do not want to have to trust one inch more than I have to. Liberty requires a stronger bulwark than trust in government.