GCH Who?



Watching the debate on government surveillance and citizen privacy play out differently on opposite sides of the Atlantic is both astonishing and depressing.

While the issue has become a hot political topic and an electoral issue leading into the 2014 midterms – with candidates and incumbents lining up to praise Edward Snowden for whistleblowing and revealing the extensive activities of the NSA, or condemn him as a hypocritical traitor – in Britain, the debate has caused barely a murmur.

Despite the fact that as closest allies, the United States and United Kingdom cooperate intensively on surveillance and national security issues, sharing the front-end technology as well as the intelligence results, those responsible from the United Kingdom side have escaped serious political pressure and questioning almost completely.

The closest to uncomfortable scrutiny that anyone from the British security apparatus came was when former GCHQ chief Sir David Omand was asked a softball question at the Home Affairs committee, and used it as an opportunity to bemoan the fact that all of this pesky, pedantic oversight of the intelligence community is harming their morale and making them feel sad.

John Naughton, writing in The Observer, has a theory about this relative lack of interest in Britain. He proposes that people would sit up and pay more attention to the erosion of their right to privacy and protection from unreasonable search if only the technological aspects of the question were explained in a more accessible way:

As someone who is supposed to know about these things, I’m sometimes asked to give talks about computing to non-technical audiences. The one thing I have learned from doing this is that if you want people to understand technological ideas then you have to speak to them in terms that resonate with their experience of everyday things.

Naughton believes that the problem is a lack of technical understanding in the British population – that if only the man on the Clapham omnibus knew what it meant to tap transatlantic fibreoptic cables to eavesdrop on data, to use computer malware to snoop on untargeted citizens or to maintain logs of telephony metadata, he would suddenly take to the streets in anger. This seems somewhat naïve. After all, American citizens are no more technically sophisticated than the British, and yet they managed to generate and sustain a sense of outrage that their privacy was being routinely violated by a government that would have happily continued doing so in secret were they not caught red-handed.

Naughton continues:

One of the things that baffles me is why more people are not alarmed by what Edward Snowden has been telling us about the scale and intrusiveness of internet surveillance. My hunch is that this is partly because – strangely – people can’t relate the revelations to things they personally understand.

The average Brit may not be conversant in the technical details, but they know the broad strokes – that the government is and has long been collecting and sharing data on us all with our international intelligence partners, that this was done without ever bringing the question up for national or parliamentary debate, and that the government is more interested in bullying people who try to report on the truth than in making their activities more transparent and democractically accountable.

The problem is not that the average Brit simply doesn’t understand what it means when GCHQ or the intelligence services collect reams of data indiscriminately with no targeting and no proof or suspicion of ill intent – they understand all too well. The problem is that far too many British people, when asked, simply shrug their shoulders and say something along the lines of “well, if it keeps us safe we should probably keep doing it,” or “if you have nothing to hide you have nothing to worry about.”

And more worrying still is the fact that some elements of the press also seem willing and eager to promulgate this attitude.

The reason for this apathy among both the people and the press is the fact that the British people have no real terms of reference when it comes to thinking about what government actions are good and which are bad. In the United Kingdom, the law of the land is only as cast iron and certain as the whims of the current government and current parliament. Aside from the European Union and European law (which act as brakes on British government ambition in almost every other sphere than this), the British citizen has no real defence against any action taken against him by the elected dictatorship of the day. And where it comes down to interpretation of existing law by the intelligence agencies, the cases are fought in court in a very opaque way that hardly anyone understands.

Contrast this to the situation in our closest ally, the United States of America, where precisely the same debate is playing out but at a much louder volume. The debate is much more accessible to the average American because the US government is structured in a much more understandable way and the powers and limitations of each branch of government are delineated by the Constitution. Though ambiguities and disagreements naturally always occur, the Constitution at least provides a frame of reference.

When issues such as bulk collection of telephony metadata or the recording of international telephone calls or the intercepting of emails come up, Americans can point to the Fourth Amendment to the United States Constitution, which clearly states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There it is, in black and white. And it protects Americans in perpetuity until such time as it may be repealed or replaced with a new amendment (for which the bar for passage is prohibitively high).

That’s not to say that the US Constitution has done anything much to help American citizens defend themselves from unwarranted government intrusion. The Obama administration, and the Bush administration before, are able to come up with all manner of tortured (no pun intended) interpretations of the law to justify both the illegal things that they do and the fact that they try so hard to keep them secret.

But the mere fact that the highest echelon of law concerning search and seizure of property is so comparatively well known in the United States means that shady government activities suspected of falling on the wrong side of the line between legality and unconstitutional overreach are noticed much sooner and debated much more vigorously. By contrast, it would be astounding if any more than one in a thousand Britons of voting age could point to the relevant laws and statutes which define the British government’s legal powers to monitor the communications and data of its citizens.

The sad irony is that the Fourth Amendment protections enjoyed (or at least referred to) by American citizens derive largely from British legal doctrine, and yet it is the former colony which now tenuously keeps alive something which has been slowly and deliberately extinguished in the mother country.

John Naughton is right to be alarmed at public apathy toward the growing British surveillance state – it is perhaps the greatest threat to our democracy and free speech currently in existence. But public opinion will not be inflamed by holding a national technology seminar to explain the small print; there will only ever be opposition to government overreach on spying or anything else when we sit down together as a country and agree exactly what should be the limits on government power.

Holding a constitutional convention for the United Kingdom – as this blog has consistently advocated – to determine once and for all the powers that we are willing to grant the government and those which we would keep for ourselves may not be popular or sexy. But it is needed now more than ever.