Imagine, for a moment, the kind of world you’d be living in if information about every letter you sent and received through the mail was kept in a government database. Your love letters, junk mail, subscription magazines, business correspondence all itemised, categorised and serialised, searchable by any government employee who feels like checking up on you.
Not troubling enough? How about if all of your reading material was reported as well, then analysed and logged. Books you’d borrowed from the library or bought from the local bookstore, research you’ve been carrying out for projects at work, political and religious tracts, all duly recorded in the same database.
If that’s beginning to make you feel vaguely uncomfortable, add in a requirement that the database would also track your movements and the names of people you’ve been speaking to.
We don’t live in that world at the moment, thanks largely to rights and privileges first secured in England in 1215 in the Great Charter of Freedoms, more popularly known as the Magna Carta. Although much of the Charter is no longer historically relevant (feudal death duties anyone?), enduring principles which the document pioneered include the notion that there are limits on the power of the state, and the creation of what we now call common law.
The evolution of those two ideas led to the principles expressed in 1628 by Sir Edward Coke in his Institutes of the Lawes of England which states, "A man’s house is his castle, et domus sua cuique est tutissimum refugium" ("for where shall a man be safe, if it be not in his house?"). In more modern terms, this fragment of 17th century text is the free world’s first privacy regulation, codified in the common law which was eventually exported to our land when Captain Cook planted the Union Jack here 150 years later. That is the law which mandated a requirement for search warrants by creating a presumptive prohibition on agents of the government entering your house to seize evidence of your private affairs.
Our modern society has grown up with certain expectations about the limits of law and government ever since including expectations asserting a degree of privacy in our affairs and papers. We live it and breathe it: we know that we can buy a copy of Mein Kampf and read it for scholarly interest without showing up on a government watch-list. We know we can quietly step out for a romantic rendezvous without needing to explain our actions to an Australian Taliban.
Given the pedigree and longevity of those expectations, it isn’t surprising that we’d react with unease to a proposal to have records of our private correspondence, reading materials and movements hoovered-up into databases for post hoc governmental inspection. Hundreds of years of shared history tells us that the people who imply that encroachments on privacy are "only bad if you have something to hide" usually can’t be trusted, and are virtually always wrong.
But we don’t have hundreds of years of shared history on the internet and there’s trouble brewing on the new frontier.
A draft bill has been presented in the UK, the birthplace of our common law, which will require British internet service providers (ISPs) to maintain logs of every phone call, every text message, every email and every website visited by English citizens. The law will mean that a record of every ISP customer’s online movements and personal contacts will be kept for a year in databases available for inspection by anyone authorised by a senior police officer or a deputy head of department at a local authority.
If the UK passes the law, the country will enter a world in which a letter written with a pen on a piece of paper, sealed in an envelope and transmitted via Her Majesty’s Post, will have its privacy protected by the full force of the law, with tampering punishable by imprisonment — but evidence of exactly the same letter sent as a PDF attached to an email message will be available to any mid-level public servant.
The bill has been delayed in response to ISP concerns over its technical and financial feasibility and it’s unlikely to be introduced before the next general election but the Home Office has insisted it will "push it through" somehow.
This is all part of a pattern of behaviour which has been unfolding in the UK for the best part of a decade. Personal privacy has been under unrelenting assault by both sides of English politics for so long that it’s hard to believe that the entire concept of personal privacy originated in the same place that’s now frittering it away.
The UK has spent 10 years and hundreds of millions of pounds installing closed-circuit surveillance cameras on every lamp-post, street corner, bus and apartment complex, yet, subsequently, barely any improvements in public safety or security were achieved. "Control orders", introduced under 2005 anti-terrorism legislation, strip virtually all privacy from their subjects following an un-appealable declaration by the Home Secretary and have thus far been shown to be pointless by dint of the fact that none of the subjects of control orders have been actual terrorists and fully one third of them have revealed the ineffectiveness of the orders by absconding. Anti-Social Behaviour Orders (ASBOs) can arbitrarily deprive recipients of virtually all privacy, up to and including suffering the indignity of having their photographs posted on billboards near their homes, schools and workplaces, all in exchange for almost no impact on crime at all.
It isn’t just the UK, either. In 2006, AT&T communications technician Mark Klein filed an affidavit asserting that exchange facilities operated by AT&T contained secret rooms where fibre optic cables were diverted into National Security Agency equipment carrying out warrantless wiretaps. More recently, NSA whistleblower Russell Tice asserted that the rooms were in telecommunications facilities all over the United States and were automatically monitoring the vast majority of the world’s phone calls, faxes and internet communications for keywords to trigger more detailed automated surveillance. Tice’s revelations included allegations that politicians and journalists were being secretly monitored, reminding those of us with long memories of the secret dossiers maintained by J Edgar Hoover’s FBI.
These capricious encroachments on electronic privacy are bad enough today, but what of tomorrow?
As we move more of our lives online from the unwired world of meatspace, we’re taking them into territory where our normal societal expectations of privacy may no longer apply. As we advance into the future more and more of our existence is being communicated electronically, therefore more and more of our existence is subject to monitoring, eavesdropping and logging.
Most of us are pretty sure that we can have a private conversation with someone by speaking quietly through the susurrus of a well-populated public place, using the background noise to render us more or less immune to eavesdropping. How many of us know how to similarly secure our online voices from prying ears?
The dwindling scope of privacy we’re observing online today is always justified by explanations that sound credible until you take the same words and apply them to our traditional lives to see if the justifications pass the sniff-test. Restrictions on online privacy rarely do.
Privacy has always been a balance. Governments have always had occasional lawful excuses to interfere in citizens’ private affairs, but since the time of the Magna Carta they’ve had to jump through procedural hoops, gain independent assent in the form of a warrant from a judge and limit the scope of their intrusiveness to the bare minimum of their immediate needs. The flipside is that law-abiding citizens have spent several hundred years enjoying life without government incursion into their private lives, business lives, intellectual lives and love lives. This dichotomy is one of the core defining attributes of our identity as members of a free society.
As we stumble onwards into our uncertain future, we should take pains to maintain those attributes in the new worlds opened up by technology. Given all the restrictions on official eavesdropping offline, is it fair and reasonable to give the Government unrestricted access to virtually every aspect of our lives in the event that we choose to encode them as bits and transmit them across a network?
If we have balance offline, we should have the same balance online, or run the risk of turning our future selves into something our current selves will deeply regret.
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