Progress at last on surveillance. But we libertarians fight on

http://www.theguardian.com/commentisfree/2015/jun/14/uk-surveillance-debate-david-anderson-report

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As David Anderson QC’s report on the UK’s enormous body of surveillance laws is published, it’s right to remind ourselves that decisions on the extent of surveillance allowed in a democratic society must all reduce to one thing, and that is a risk assessment. How many will lose their lives if the government doesn’t get its way on the so-called snoopers’ charter – which will grant increased access to numerous authorities to data from everyone’s communications?

We are the only civilised country that allows ministers control over an apparatus of mass surveillance

Since Tony Blair’s second term as prime minister, we have listened to ministers intone that the first duty of the state is to protect its citizens. And who can argue with that? In less than a month we will mark the anniversary of the 7/7 attacks on London transport, in which 52 people were killed and 700 injured. But in the 10 years since those attacks we have lost just one person on British soil to a terrorist attack – Private Lee Rigby. That’s one life too many, and no doubt there would have been more without the work of MI5 and the counter-terrorist police. But think of that death in the context of other tolls.

Since 2005 about 17,000 people have been killed on the UK’s roads, as many as a million people are estimated to have died prematurely from the effects of smoking and 300,000 from conditions related to obesity. That’s quite a casualty list. Yet in this context you never hear ministers talking about the primary duty of the state to protect life. There are campaigns to improve health and road safety, but they are not imposed with the strident absolutism of those who call for increased surveillance. The reason is obvious: terrorist attacks hold a particular horror for us and distort our sense of proportion. Fear overwhelms reflection about adding to the sweeping powers that the state already possesses, and what those might mean for democracy.

One purpose of Anderson’s report is to return proportion to the debate and he has done so by carefully extolling the value of privacy, dismissing on the way the Silicon Valley mantra that privacy is dead. Privacy, he writes, enables the expression of individuality. “Without privacy, concepts such as identity, dignity, autonomy, independence, imagination and creativity are more difficult to realise and maintain.” Second, it “facilitates trust, friendship and intimacy: qualities that allow us to relate freely”. Third, it secures “other human rights, ranging from the freedom of political expression to the right to a fair trial”.

This is a welcome affirmation of the fundamental principle of a free society and yet, by the end of the report, he supports the continued bulk collection of data by the security agencies. What could be more weirdly inconsistent?

It is worth mentioning that he published the report nine days after the US ended bulk collection of data with the Freedom Act and four days before the 800th anniversary of the sealing of Magna Carta, the first attempt in Britain to limit the arbitrary power of the state. As Conservative MP David Davis said, we are the only civilised country that allows ministers control over an apparatus of mass surveillance. European neighbours have amended their surveillance regimes after a judgment in the European court, and both Republicans and Democrats in the US have voted against it as being unconstitutional.

So, here we are, the holed mother ship of liberty, listing to the east. The independent reviewer of terrorism legislation appears to have drunk the agencies’ Kool-Aid. Roll on Theresa May’s snoopers’ charter to add to the 65 pieces of legislation that currently constitute Britain’s surveillance and interception regime. The title of Anderson’s report – A Question of Trust – seems like a pretty poor joke in the circs.

But although libertarians like me can never agree with a system where the whole population is potentially the target of algorithmic monitoring, and the dangers of abuse, error and hacking that that entails, we have to concede that Anderson’s report is a well-calibrated liberal rearguard action. It confronts the man who commissioned it – David Cameron – with a case that must appeal to the democrats in the Tory party. Why not combine the 65 bits of law into one bill and present it with the investigatory powers bill? Rancorous discussion of the snoopers’ charter, which represents a vast extension of the home secretary’s power, wouldn’t then bleed into next year’s debate on the renewal of the Regulation of Investigatory Powers Act (Ripa).

Anderson rightly condemns Ripa as “incomprehensible, undemocratic, unnecessary and intolerable”. These are strong words, but it is known that legislative suggestions from the agencies have included paragraphs deliberately drafted to be unintelligible to the public.

He is also keen to clarify and beef up the present complicated system of oversight with a new independent body to cover all surveillance and interception issues. But the key proposal concerns passing the power to authorise surveillance to judges (preferably a panel of three, in my view), which will give some Tories conniptions but not apparently Labour or the SNP. Apart from reassuring the public that potential abuse of the current system “so as to target people for political or otherwise improper reasons” is lessened, it will signal to the tech giants – Google, Facebook and Twitter – that there is a system of safeguards to protect innocent users in Britain. Otherwise, there seems little hope of gaining their cooperation. Would we grant this access to US companies without any obvious safeguards? I very much doubt it.

In the view of David Davis, who along with Labour’s Tom Watson now represents the sole libertarian conscience of the House of Commons, “removing surveillance approval from busy amateurish ministers and giving it to security-cleared judges will do away with a huge amount of controversy”. If he can accept that, why not his colleagues?

A Question of Trust is the best initiative we have had in a long time, for it restores balance and proportion to the debate. But let’s not think it’s going to be immediately embraced. Last week, the government wanted to leak the report ahead of its delivery to parliament so as to lessen its impact and skew the publicity. Without Davis alerting the Commons, Anderson wouldn’t have had such a fair hearing. They are likely to try to bury it over the summer recess.

So, we have a fight on hands-on surveillance, as important as the one on ID cards and 90 days’ detention, maybe more so.