The attacks in Paris on Charlie Hebdo and a kosher supermarket reignited the debate about freedom of speech and tolerance for the beliefs of others. One issue that received less attention is how far an open society should surrender freedoms it values highly in the name of security.
An illuminating exchange took place on BBC Radio 4’s Today programme on 13th January between presenter Justin Webb and the UK’s Deputy Prime Minister, Nick Clegg. It showed that even at the highest level of government there is a reluctance to offer the public clear views about how to tackle terrorism in the modern world. Part of being a leader involves clarifying complex issues so that the public can understand better the choices they are asked to make.
Mr Clegg refused to answer whether he thinks some conversations on social media should be inaccessible to the security agencies for ever. Vacillating on this crucial point and providing opaque explanations elsewhere, he did not engender a strong sense that he understood many in society are confused, worried and seeking leadership. His reluctance to hold and defend a clear position also implied the government has not debated this issue at length and that confident and considered, albeit conflicting, positions had been taken.
It’s a long post (unedited to provide the overall context) but stick with it; this affects us all. The momentum in the war of ideas currently lies with those that wish us harm.
Justin Webb: Are you happy being in a position of disagreement not just with the Prime Minister but with the head of MI5 as well? The head of MI5 saying recently in his speech his sharpest concern, as he put it, is the gap between the challenging threat and the growing availability of capabilities to address it.
Nick Clegg: So just to be very clear, actually I met the head of MI5 yesterday and I’ve obviously spoken to him and the head of the agencies on numerous occasions. The problem they’ve identified, which is a very real one and one we are acting on, is how to access data, how to, if necessary, on the back of a warrant from the Foreign Secretary or the Home Secretary, intrude on the communications between people who mean to do us harm, even where those communications originate from overseas or foreign internet service providers or communication service providers. That is the thing that the agencies have identified as being the biggest problem. That, by the way, is why we legislated, with my active support earlier in the summer, emergency or fast-track legislation, to kind of fill that gap because there was a problem that, as they put it, a lot of that communication would go dark if we didn’t have access to that data.
JW: But he’s [Andrew Parker – the head of MI5, the UK’s domestic spying agency] still worried about it going dark, without that, in the future and without necessarily that bill. Now, are you comfortable, or did he say to you that he is comfortable with your position on a lack of activity…
NC: Well let’s be clear. The one component of the various measures that have been floated that I have objected to, the so-called snooper’s charter, would do absolutely nothing to deal with this issue of how we, as a country, have access to data which originates overseas but which might relate to people who want to do us harm, because let’s remember what the snooper’s charter was about, was about storing the social media activity and the web sites visited by every single man, woman and child in this country; by everyone, and, by the way, by millions and millions of people, so that’s huge amounts of data…
JW: But not accessing it without a warrant.
NC: No, no, no, but it was about, exactly, but it doesn’t deal with the issue which we are having to grapple with, which is how, for instance, to make sure that your mobile, tablet or your phone is properly related to an IP address, just like your mobile phone is related to a telephone number, which, by the way, is another thing that we have acted on, in fact we’re legislating on as we speak right now. The point I make is that, you know, sometimes people sort of think if we pass the snooper’s charter everyone will be utterly safe and if you don’t pass it everybody utterly unsafe. It isn’t like that.
JW: But that’s not the point Andrew Parker is making.
NC: You have to make a judgment, don’t you, about the balance between security and liberty and the workability of these proposals.
JW: Can I just get this straight. What you are saying is there should be circumstances where people can have entirely private conversations via social media on the internet, that are inaccessible for ever to the security services. That is what you think is important.
NC: No, this has, this is where the great confusion lies, this has nothing to do with, as your question has implied, this has nothing to do with our right, which, of course, we should retain, as a state we always retain the right to steam open envelopes, to listen to telephone conversations…
JW: But that’s what Andrew Parker is saying he can’t do in the future.
NC: As I’m saying, a snooper’s charter is not the answer to that. The snooper’s charter, let’s be very clear, or what was dubbed the snooper’s charter, was one component among several measures, most of which we have acted on in whole or part, let’s repeat because it’s very important this, because I think it does cross a line in my view, it is not a proportionate response to that particular problem and, by the way, many experts say it’s not a particularly workable proposition either. What it would do is it would say that you, every single person listening to this programme now, every website they visit over the last year, every social media interaction they have will be stored by somebody. That doesn’t deal with the issue of how we make sure that when people mean to do us harm, which was the subject, quite rightly, of what the Prime Minister was talking about yesterday, we could retain the ability…
JW: But are you saying it shouldn’t be stored? That’s the point, isn’t it, that there should be some areas that are properly dark forever?
NC: It’s not about dark. It’s about do I think that scooping up vast amounts of information on millions of people, children, grand mothers, grand parents, elderly people who are doing nothing more offensive than visiting garden centre web sites, do I think that is a sensible use of our resources and our time, and does it address the issue which you, quite rightly, identify, the agency, quite rightly identify, which is as technology mutates, as this globalized industry becomes more and more global, how do we make sure that we continue to have the reach into those dark spaces so that terrorists cannot hide from us.
JW: But are you saying we should be able to or we shouldn’t be able to? I’m not understanding from you whether you accept, which some civil libertarians say, we absolutely should have the ability to communicate with each other in a way that is inaccessible, or, as Andrew Parker and others say, no we shouldn’t.
NC: With respect you’re confusing the right that the state has, always has done and should retain…
JW: No, I’m not talking about a right, I’m talking about the practical possibilities of doing it and what Andrew Parker wants is to be given, he thinks he does have the practical possibilities to do it, he wants to be given the right to do it.
NC: Right, let me explain again. The problem of what Andrew Parker calls things going dark, is because so much of the industry on which we depend for communications, particularly modern communications, aren’t located in this country. They are servers on the other side of the planet. They are internet service providers based in California. And the absolute heart of this issue is how do we, given that we can only have jurisdiction over our own affairs in Great Britain, make sure that we work well with those internet service providers so that they give us access to information where that helps to keep us safe. And we’ve done a number of things as I said, we’re actually legislating right now under the new terrorism bill to do that.
JW: I’m still not clear about whether you accept that people should be able to communicate in total privacy or not, just yes or no, should they be or should they not?
NC: Right, the snooper’s charter was nothing to do with…
JW: No, should they be or should they not? Never mind about the snooper’s charter.
NC: Privacy is a qualified right. If someone wants to do us harm we should be able to break their privacy and go after their communications…if you just let me finish the sentence I’ll explain to you why I think you’ve got this confused. The snooper’s charter wasn’t about intercepting communications it was about storing a record of all your social media activity of every website you’ve visited, and here’s the key thing: of every single individual in this country. Of people who would never dream of doing anyone else any harm, who would never dream of becoming a terrorist or even have anything to do with extremist ideologies. So the question we need to ask ourselves, in a free, open society as we defend our values against the abhorrent attacks we saw in Paris, is where do you draw the line? Look, I’ll give you an example. If you want to we could make ourselves a lot safer in this great city of London by imposing a curfew so no-one can leave the house after 9 o’clock. We don’t do that because that would be offensive to our values as a free and open society…[talked over by JW below}
JW: So, one of those values is that we can have conversations in total privacy?
NC: ..and what I’m saying is you strike the right balance, you take the actions to keep us physically safer through the fast-track legislation that we’re already proceeding with, but at the same time you valiantly defend and you are vigilant about things which might encroach on the basic freedom for people to go about their everyday business, particularly if they’re innocent of any wrong-doing whatsoever.
addingtonWord 
Excellent post Dom
I particularly enjoyed how this highlights the complex nature of the boundaries within society of freedom of information, the civil rights of all in society and how this integrates with the security departments need to do their job of keeping us safe.
Personally, I believe the information should be saved and accessed under warrant, because we just do not know who will become a terrorist. If there are suspicions by the security department that someone has been radicalised and the request to delve in to that individuals information history meets the warrant, then that will only help determine if the individual is a threat and help to understand the right course of action.
Just as importantly, it highlighted how one of the highest ranking officials in our government cannot give a straight answer to a simple question… I look forward to the elections (cannot see Nick Clegg doing well in the TV debates if he takes this stance with all his policies!).
I look forward to the next blog post
All the best
Richard
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Thanks Richard. But who signs the warrant and how is that person held accountable? Are there sufficient safeguards to ensure that a well-meaning politician bringing in such legislation today can craft a bill that is sufficiently useful to the security agencies, while also not giving free rein to a future generation of politicians who may not be so tolerant of society’s freedoms? It is rare to see government time devoted to repealing powers they have been previously granted.
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Those are good questions and obviously need clarification prior to any law is passed to hold any information… I don’t know the details but I would imagine that there could be a panel (like the one which sets the countries threat level – JTAC) who could sign off on the warrant and be held accountable… this way there is no one politician or security individual but an independent collective view, which also has the facts and context in which to make (we would hope) the correct decision.
Lets not forget that we are only talking about the retention of information to help form a view and take action… there must be existing levels of accountability for any action taken that would manage the responsibility.
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A model based on the Office of Surveillance Commissioners might be a good start point. See their website at https://osc.independent.gov.uk
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We’re talking principles of privacy when, in practise, the security services cannot or will not even deal with people they already KNOW may be a threat. http://www.bbc.co.uk/news/uk-england-london-30854621
In such circumstances, it seems unlikely that they would ever have the resources to trawl Facebook looking for more, so isn’t this debate just fiddling while Rome burns?
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Hi Belle, thanks for getting in touch. So are you saying the security agencies should be given more resources before we discuss what the limits should be on using them? I think the legal, governance and policy framework needs to be established at least in parallel, if not before, those agencies have the ability to use any powers they are granted.
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Hi Dom, It appears that the security agencies are already unable or unwilling effectively to do the job with which they’re tasked. So we can talk until we’re blue in the face about what ELSE they should do, or should be allowed to do, but in this context, those questions seem moot. If their inability to effectively tackle issues such as returning jihadis – even when families beg for help – depends on further resources, then they should be forthcoming, regardless of what other rules and regulations may be forthcoming. If it is NOT a question of resources, then you have to examine management and intent.
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All fair points Belle, but your killer phrase is “further resources”. The Home Secretary will say her budget will not stretch to additional resource for the UK Border Agency or MI5 and the Foreign Secretary will resist additional work for MI6 or GCHQ without more money. The government have either decided the probability/impact considerations do not warrant extra money spent in this area, or they do not understand risk. In which case, they need to read Risky Business – found elsewhere on this blog (yes, a shameless plug, and if I could hyperlink to it that would be in there too!).
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Dom
With respect to the MI5/GCHQ/NCA etc. sticking their noses in ones private communications, I am totally against it. They should be targeting their surveillance more accurately and lawfully instead of lazily hovering everything up. It may be ‘Social Media’ (whatever misnomer that is!) today, but it will be ALL communications (phone calls, emails, Skype, websites visited, financial transactions etc.) tomorrow. Storing this information to be trawled through at their leisure will be a sword of Damocles around all our necks for the foreseeable future.
I cannot see big business putting up with it at all. There is no way to decouple business communications from other ‘normal’ communications. Would they trust the US/UK governments with sensitive business communications, financial information or intellectual property. No bloody way!!! The agencies on both sides of the Atlantic have abused their positions of ‘trust’ in the past to give their respective business conglomerates an advantage. Whilst there was some suspicion but little concrete evidence of this going on in the past, post Snowdon there is plenty.
The bad guys will always adapt to what is necessary to keep their lines of communications private. There are loads of ways of doing it now – there will be even more developed after any laws to give Big Brother carte blanche to see what sites one may have been visiting!
Orwell was right – he just got the date wrong!
Yours etc.
Greyfriars Bobby
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Thanks for the comment Bobby. So, do you think there should be some areas of social media (or even good old snail mail perhaps) that are completely inaccessible to the security agencies in which people (you, me, terrorists etc.) can have entirely private conversations? I personally do not think there should be, but want a tougher regulatory regime to hold to account those deciding which communications can be searched for content, not just the information of who communicated with whom, when and by what method which is the current proposal. It seems you and Richard (see comment above) are at odds on this one.
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Dom – great article, and I will definitely be listening to the interview in full.
I have sufficient faith in our intelligence services to accept that this is a capability that they need, and confidence enough in the UK government to implement it responsibly.
There are points of principle and of necessity, and I guess on occasion the two collide. This issue is not the first and won’t be the last. The questions are, in my mind: when is it necessary to show some pragmatism towards these rightly cherished principles; and how to manage the very real issues of protecting these principles in the longer term, preventing the thin end of the wedge from becoming more permanently and thickly lodged.
There is also the issue of time – principles evolve over time. In the 19th century socialism, an age of rapid industrialisation but also of exploitation, seemed reasonable and just. Come the 90s and 00s there was consensus that it was lunacy – the left wing in UK shifted firmly to the right, capitalism had triumphed. Now we see that half the world’s wealth is owned by 1% of the population, and all of a sudden, some kind of redistribution of wealth seems logical and just – a resurgence of socialism. Perhaps in the US, the constitutionally enshrined right to bear arms made sense, back in 1791. The point is that principles evolve, or at least have fluctuating importance. It might just be that we live in a time were other factors have become more important than our a small part of our liberties – it’s not like we are talking about conscription here.
We should be mindful that the world has changed, and for the Government to be able to conduct its primary task of providing security for its citizens, certain principles need to be compromised. It has happened before, and it should happen again now. I also believe, as Jennifer Lawrence recently discovered, that we should all be reminded that nothing on the Internet is truly private.
Maybe the public will successfully limit our government’s ability to view this data, but it seems likely that other actors will not be constrained by such principle.
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Hi Safety Buffers, thanks for joining the conversation. You’re right – the evolution of principles over time is the central issue, but the activity has taken place ahead of the debate. The accumulation of data by the government is seen by many as a red-line. But look at Facebook’s Data Use Policy at https://www.facebook.com/about/privacy/your-info and the section ‘Other information we receive about you’; it specifically refers to exactly the kind of meta data the security agencies are castigated for trying to access. Many in society prefer to share personal data with Facebook (and their associates) whilst arguing against the same information being shared with government for the purposes of countering terrorism.
You will notice this blog does not have a Facebook link.
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Thanks Dom – that is a great point about Facebook – and no one wants to be reminded of every single ‘Poke’ from over the years!
In this particular instance, the fact that the activity has taken place before the debate probably has some bearing on the importance of it. We’re discussing the ability for one of the most developed democracies in the world to access our internet profiles, which are already available to others.
In terms of risk versus benefit, I think the argument is clear. The risks to our liberty of such legislation are – for the time being – slight. In terms of benefit, if it reduces the chance of another Charlie Hebdo and all that goes with it (the back lash on Islam and riots globally – how many lives have they cost?) by only a small margin then I support it; I have faith in the British government to implement it responsibly.
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Hi Dom
Great post. I teach journalism at The University of Chester and we were discussing these very issues in class. So many big issues come to bear – national security, freedom of speech, public interest, privacy, civil liberties. It’s my estimation that the answer lies somewhere in the heady mix of those competing elements. Quite which one is foregrounded is likely driven by political persuasion.
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Hi Simon, thanks for getting in touch. I’d be interested to hear what your students are saying as, I’m guessing, they’re mostly in their early twenties and (so we’re told) less trusting of government but also happier to share personal information online. Also, where do you see the line between freedom of expression and incitement?
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