The draft Investigatory Powers Bill will neither increase security nor effectively tackle extremism
Laura Westwood argues in Left Foot Forward that existing mass surveillance techniques have proved ineffective at stopping terror attacks, and that the new measures outlined in the government’s draft Investigatory Powers Bill would further undermine civil liberties with no commensurate reward:
Perhaps most unsettling is the potential harm caused by intruding on the lives of innocent people. Whatever the rationale, mass surveillance practices imperil our rights to privacy and freedom of expression. The UK’s Independent Reviewer of Terrorism Legislation himself warned that taking missteps could sow divisions in society and incubate the problem of ‘home-grown’ terrorists.
Why? Because extremists thrive on exploiting disenfranchisement and grievance. We are told so by former members of Islamist extremist groups. Taking blanket surveillance even further than it already goes is a calculated risk at best, and right now, the sums aren’t adding up.
Already, people languish in British prisons not for committing or inciting terrorist acts, but merely accessing articles and propaganda which praises terrorist acts, or expressing support for them on social media. Such actions may be reprehensible, but bringing the full weight of criminal law crashing down on people with odious foreign policy views and sharp tongues on social media is punishing thought, not words, and is incompatible with a free society.
As Mick Hume argues in his book “Trigger Warning: Is The Fear Of Being Offensive Killing Free Speech?”:
If she had dressed her young children in suicide vests and sent them out to die in a bomb attack, that would be terrorism. But going online to argue that Muslim mothers should try to raise their sons to grow up as jihadis is something else entirely, more like perverse parenting advice than a military command. Words are not physical weapons and viewpoints are not violence, however ‘radical and extreme’ they might appear to most of us. The opinions expressed by the likes of Runa Khan need to be openly challenged. Trying to bury them instead in prison, on the ground that they are too dangerous to be let loose on Facebook, can only lend their radical message more credence.
At a time when almost all the serious business of governing has ground to a halt for the duration of the EU referendum campaign, mass surveillance is the one area where David Cameron’s ideologically rootless, authoritarian government seems determined to make progress. All other reforms and legislative activity have effectively been placed on hold, yet this most un-conservative government is formalising and expanding the powers of the state to indiscriminately collect and hold data on the private activity of citizens, with the kind of weak and unenforceable safeguards that you would expect from a country with no written constitution.
Why? Because while everything else is allowed to drift as David Cameron seeks to bully and scare the British people into fearfully voting to remain in the European Union, expanding the power and influence of the state over our lives knows no rest.
Those on the Left who oppose this are right to do so – not in pursuit of a political victory over the Evil Tories, but because the Investigatory Powers Bill is bad law and bad policy. And because it will be the poorest, most disadvantaged and least well-connected citizens who first fall prey to the surveillance state, as it always is.
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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.
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.
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.
Supporters of ending the practice of bulk data collection by the NSA and enacting safeguards on requesting permission to monitor the communications of private citizens have found a very unexpected ally in Democratic congressman Dutch Ruppersberger, the NSA’s hometown representative and one of the agency’s key supporters.
This week, the top Democrat on the House intelligence committee, Congressman Dutch Ruppersberger, who represents the Maryland district home to the NSA’s Fort Meade headquarters, came out in favor of a remedy for the controversial surveillance.
Ruppersberger, in interviews with the Washington Post, National Journal and Politico, said he was working to craft a proposal that would require court orders for government requests for Americans’ phone records – perhaps on an individual basis – from the telephone companies, without requiring the companies to expand retention of their customer records beyond current practice.
This has rightly aroused suspicion from some civil libertarians – partly because Ruppersberger admits that elements of his proposal still remain to be “worked out” (read: emasculated before coming up for a vote) and partly because Ruppersberger’s track record on standing up to his district’s largest employer is predictably weak.
Others, however, seem to take his proposal in good faith:
On the other hand, sources said, Ruppersberger’s evolving position represents what one called a “huge step forward” toward an outright end to bulk domestic metadata collection. Ruppersberger’s credibility with the NSA might also be an asset for such an effort.
I’m sceptical. Though any politician turning away from embracing the unchallenged omniscience of the intelligence services is a good thing, we should avoid ascribing too many noble motivations to those who do so. This can be difficult, given the serious way in which such lawmakers are suddenly discussing the issue. Here, Ruppersberger could pass for a concerned member of the ACLU were it not for his voting record and numerous other public statements to the contrary:
“I believe that the Foreign Intelligence Surveillance Act must be reformed. We must improve the American public’s confidence in, and perception of, our national security programs, by increasing transparency, strengthening oversight, and safeguarding civil liberties,” Ruppersberger said.
“I also believe that any proposal to reform the Foreign Intelligence Surveillance Act must preserve critical intelligence tools that protect our country and its allies. I am concerned with any approach that would eliminate this important intelligence tool and make the country more vulnerable to terrorist attacks, without providing a workable alternative.”
Ruppersberger’s decision and newfound concern about civil liberties could well be no more than what Glenn Greenwald has called the ‘Angela Merkel’ effect – a term used to describe a phenomenon where a public civil liberty infringement is tolerated quite happily by a public official until they realise that they too have become victims (in Merkel’s case, she was largely silent on the fact that the NSA had been intercepting the communications of German citizens but incandescent with rage that her own private communications might also have been monitored).
Senator Dianne Feinstein of California also falls into this category – long an NSA apologist and advocate for massive secret public surveillance, but suddenly up in arms when the work of her own committee was monitored by the CIA. While it would be nice to believe that a dyed-in-the-wool surveillance hawk such as Feinstein has undergone some kind of road-to-Damascus style conversion to the cause of privacy rights, sadly the greater likelihood is that hypocrisy and political calculation played the larger part in her Senate floor outburst.
The likelihood is that the most hawkish, reflexively pro-surveillance lawmakers realise that the political sands have shifted beneath their feet, and have deemed it wise to be seen giving a little ground now to avoid complete defeat in the future.
In Ruppersberger’s case, that defeat would be epitomised by the passing of the rival USA Freedom Act, sponsored by Wisconsin Rep. Jim Sensenbrenner, which goes further in setting stricter standards for collecting communications data on individuals, standards that would need to pass a certain burden of evidence in order to gain a court order:
With the details still undetermined in Ruppersberger’s proposal, it is difficult to know how far the new effort would go in requiring court-ordered individual suspicion to access phone records, as well as requiring a specific “relevance” connection to an ongoing terrorism investigation, as required in the Patriot Act and the proposed USA Freedom Act – without which, privacy advocates argue, would leave the door open to dubious searches of government records.
While the gradual conversion – or defensive rearguard action – of politicians like Dutch Ruppersberger and Dianne Feinstein can be cautiously welcomed, the public should never forget that that if these people had their way, we would not be having a national conversation about government surveillance and civil liberties at all.
National security fanatics from both parties have lined up to condemn Edward Snowden for whistleblowing and making the public aware of what the government had been doing, going so far as to call him a traitor and make up all manner of ludicrous unproven assertions to cast doubt on his moral integrity.
If the Ruppersbergers and Feinsteins had their way, the American political debate would continue to bounce back and forth between Obamacare, Benghazi and 2016 speculation because we simply would not know about bulk data collection, the PRISM program, back door access into the servers of our most commonly used internet applications or any of the other “protective measures” that the government felt the need to take without glancing at the Constitution or mentioning what they were doing to the people.
So by all means, let us welcome those genuine converts to the cause of civil liberties. But let’s hold off on the ticker-tape parade in their honour just a little while, until their motives become clearer with time.
UPDATE – 15/03/2014: Whatever the limitations of the debate on surveillance may be in the United States, let us be grateful at least that a debate is taking place at all. In the United Kingdom, by contrast, there has been no apology or sign of contrition from David Cameron, no real admission that the British government had overstepped the mark, and certainly no real political movement underway to start properly overseeing the British security services.
The pig squeals ever louder. Embarrassed at having been caught red-handed secretly violating the US constitution’s prohibitions on unreasonable search and outraged that their power to do what they like without oversight should ever be called into question, those at the heart of the national security apparatus and their apologists in Congress are lashing out. And in their fury and blind fear of being exposed, they are no longer restricting their attacks to the arch-whistleblower, Edward Snowden himself, but are now expanding their campaign to target those journalists who dare to report and lay bare the abuses of power that Snowden revealed.
Representative Mike Rogers, the chairman of the House Intelligence Committee, has become the latest to join the fray, casting doubt on the motives of journalist Glenn Greenwald who worked with Snowden to bring the NSA’s clandestine public surveillance activities into the light of day. The Guardian reports:
Congressman Mike Rogers, chairman of the House intelligence committee, suggested Greenwald was a “thief” after he worked with news organizations who paid for stories based on the documents.
“For personal gain, he’s now selling his access to information, that’s how they’re terming it … A thief selling stolen material is a thief,” Politico quoted Rogers as saying after a committee hearing on Tuesday. Rogers said his source for the information was “other nations’ press services”.
If, by “selling his access to information”, Rogers means “charging a standard rate to write articles for publications based on his investigative journalism” then I suppose the accusation is spot-on. But of course, it could also be leveled just as easily at any other freelance reporter in the country, and is therefore completely meaningless.
Mike Rogers seems to think that the appropriate mode of behaviour on stumbling upon evidence of criminal activity and abuse of public trust by the government and making it public is to enter into some saintlike – almost socialist, shall we say – stance whereby any future commentary or writing about that subject is then given away for free to all and sundry. Only then, according to the Mike Rogers doctrine, would one avoid the charge of profiting from stolen material.
Rogers is apparently unfamiliar with the work of Bob Woodward, perhaps the most high-profile American investigative reporter in living memory and someone who conducted journalism that was equally damaging to people in power but which never raised public speculation that he should be charged with a crime, a point which Greenwald also notes in a recent interview with Vice Magazine:
Of course, Greenwald does not let Mike Roger’s slanderous accusation that he is profiting from the sale of stolen goods go unchallenged, as The Guardian, his former employer, reports:
Greenwald said that the claim was foolish, unfounded, and designed to intimidate journalists. “The main value in bandying about theories of prosecuting journalists is the hope that it will bolster the climate of fear for journalism,” he tweeted Tuesday.
But Mike Rogers was not the only one to go after Greenwald. James Clapper, the Director of National Intelligence – whose principal accomplishment in office has been to sit in front of Congress and lie to them with a straight face about the extent to which the government monitored the communications of US citizens – also decided to use the terminology of crime and policework when discussing journalists who either worked directly with Snowden or dared to publish information that came from him:
James Clapper, the director of national intelligence, has issued a blistering condemnation of Edward Snowden, calling the surveillance disclosures published by the Guardian and other news outlets a “perfect storm” that would endanger American lives.
Testifying before a rare and unusually raucous public session of the Senate intelligence committee that saw yet another evolution in the Obama administration’s defense of bulk domestic phone records collection, Clapper called on “Snowden and his accomplices” to return the documents the former National Security Agency contractor took, in order to minimize what he called the “profound damage that his disclosures have caused and continued to cause”.
This is a strange development indeed, publicly promoting the idea that a journalist doing their job and reporting government secrets that they themselves did not steal, but which were given to them by a third party informant, is somehow committing a crime. The use of the word “accomplices” by James Clappers says everything that you need to know about his point of view on the leaks, and the contempt in which he holds the American public who are now starting to realise the extent to which their government has been acting in secret.
Even the Director of the FBI got in on the act:
FBI director James Comey said that a reporter “hawking stolen jewelry” was a crime, but it was “harder to say” journalism based off the Snowden leaks was criminal, since such a determination had “first amendment implications.”
This one is a real hoot. Director Comey makes very clear with his choice of words that he would love nothing more than to designate Glenn Greenwald’s (and others who publish information embarrassing to the national security elites) actions a crime, but that he is prevented from doing so because of “first amendment implications”. Note that he does not speak clearly and admit that to do so would be a flagrant breach of the Constitution – no, rather there would merely be “implications”, constitutional hurdles and awkward challenges to be overcome on the road to fulfilling his ultimate goal, namely criminalising free speech.
While the administration of George W. Bush long ago did away with any claim by the Republican Party to basic competence on national security issues, the GOP are by no means alone in their inadequacy – many Democrats seem only too keen to join the false prognosticators and the “mission accomplished” cheerleaders in their continuing efforts to sound tough on every issue of security while speaking absolutely no sense at all. Clapper and Comey, it must be remembered, are appointees of President Obama.
When it comes to those people – be they Republican or Democrat – whose first instinct in any scenario is to defend the government and preserve its power over that of the people – I can only take them as seriously as does this meme that has been doing the rounds:
An enemy of Dick Cheney’s may not automatically be a friend of mine. But it gets you a good hefty proportion of the way there.
The last armoured limousines have swept back out of the Watford Grove Hotel’s gates, and the helicopters have departed.
The steel fence is being disassembled, and Alex Jones has flown back to his “central command center” in Austin, Texas.
I’m not ashamed to admit that I have a rather acute case of Bilderberg Withdrawal Syndrome.
For a few precious days, at least a segment of the population who don’t normally pay attention sat up and looked at the protesters, covered on television at length for the first time, and listened to what they had to say. They heard about the concentration of power in the hands of a global elite, about our failed financial system, the lack of accountability in the political and corporate worlds, the pervasive nature of the surveillance state, and the efforts underway to undermine the importance of local power and the nation state.
And so for the first time in a very long time we were able to have something of a national conversation about causes rather than effects. About the disease rather than the symptoms (which are covered in one form another by the newspaper headlines most days – crime, immigration, unemployment, income inequality, education).
And it was amazing how widely and enthusiastically the message was received. I was particularly heartened to learn how many of the police officers guarding the meeting venue and the Bilderberg Fringe protest site had listened to the message from the protesters and taken an active interest, some even undertaking to go home and do their own research:
A triumph in securing – for the first time ever – wall-to-wall mainstream media attendance, subjecting the meeting to serious enquiry and inspection. And a triumph in hosting a peaceful, joyful Fringe event within the Grove grounds which united thousands of concerned citizens, activists and inquisitive Watford locals. This year felt like a sea change in dragging the shadowy cabal’s club kicking and screaming into the daylight.
On Sunday, with the Fringe winding down and a hundred or so lining the gates as the delegates left, I questioned a police liaison officer if he’d felt awakened by the event he’d witnessed this weekend. “I’ve heard a lot of interesting ideas that I’m going to go away and research. I’ve got a reading list, Agenda 21, Endgame which I’m going to follow up. The one person who really made me sit up and go ‘oh my god’ was one of the audience, a former stockbroker. He was discussing things I’ve thought about like who’s controlling the energy companies, oil company cartels and the Libor bank scandal and he made me think, yeah actually, as someone who’s suffered from the housing crash somebody else should be paying for this but it’s the public sector that’s being screwed to pay for their mistakes – especially the police, we’re being cut.”
Of course, it wasn’t all good. The Bilderberg protests brought out the absolute worst in much of the British mainstream news media, who refused to take the issue seriously at all, treated the protesters as imbeciles and simpletons to a man, and covered the event only as the lighthearted end segment, where you would normally expect to be entertained by a squirrel on water-skis.
The foremost example was the truly dreadful segment from the BBC’s The Sunday Politics show, in which the lead-in to the segment focused only on the lunatic fringe of the protest and wholly ignored the serious concerns of the protesters, and the substance (if it can be called that) of the interview itself, with US journalist Alex Jones, whereupon host Andrew Neil decided to mock his guest from start to finish, fail to ask serious questions and ultimately provoke Jones into one of his famous rages:
But on the whole, those wonderful days where we actually got to talk in public and on mainstream media about freedom and liberty without getting bogged down in the minutiae and drudgery of day-to-day political distraction were intellectually refreshing, and invaluable for the movement.
Roll on Bilderberg 2014 – if they dare assemble in public sight again.