Andrew McStay: Response to Iain Bourne

Many thanks Iain for your contribution and for taking time out for a considered response. Here are my responses (Iain’s comment is the main bullet point, followed by my response). I’ve posted this as a standalone post because the comment tool will not accept such a long comment! (4906 characters is the limit apparently.)

-       Iain: Should our objective should be to prevent surveillance per se?

o   Andy: No, I think all in the debate understand that surveillance is not innately bad. The question is one of proportionality, type of surveillance, the role of indiscriminate surveillance, and whether we should be surveilling good folk with tools that most do not understand to chase bad guys. Consent and openness seems to be missing.

-       Freedom depends on security and that security depends on surveillance.

o   Agree to an extent, but the question is about form, type, proportionality, controls on mission creep and the role of politics (frequently reactionary, e.g. ISIS and Charlie Hebdo).

-       ‘If you have done nothing wrong you have nothing to fear’ … ‘it is likely that CCTV or electronic surveillance will have a more significant effect on someone who has broken the rules than on someone who hasn’t’. 

o   Other people interested in privacy will answer this their own way (there are lots of arguments against it). Some of these will entail appeals to the nature of consent in democracies, the need for some healthy distance between citizenry and governments, problems with what happens when the next government comes to power, who incumbents will choose to share this information with, and so on.

o   For me it boils down to a question of trust. Can the state be trusted with increasingly granular information about us (and not just metadata as claimed)? The answer for me is no – indeed the Snowden leaks themselves highlighted how badly cared for this data is. This is exacerbated by the fact that we are in very early days of networked living (pre-internet of things and wearables). I agree though that oversight, accountability and conversation is required.

-       ‘Maybe we need to look more at the effect of surveillance than on the surveillance itself. Maybe this is as true in ‘bad’ states as ‘good’ ones. Maybe the issue even in true surveillance societies is not the surveillance itself but the subsequent arrest, unfair trial and internment in a gulag’.

o   This is akin to the big data argument and shift towards explicit harm over data collection itself. I appreciate this is a convenient solution when so many organisations are collecting so much information, but my gut reaction is “no”. Consent does not work that way around and, particularly in the case of personal information (i.e. DPA definitions), we should push back against this tendency.

-       ‘Despite much effort I think privacy advocates have found it very difficult to demonstrate the negative effect of surveillance per se on ‘ordinary’ citizens.’

o   I think this is true to an extent, we have struggled to state clear, specific and demonstrable harms. My feelings on this are three-fold: 1) concerns are longitudinal (what issues are we storing up for the future?); 2) are we to open the door to total transparency (of searches, speech, location, emotional states and so on)? There are very powerful technologies in use and on the horizon (I’m interviewing many of the companies making these) and I’m not sure our future is best served by state employment of these; 3) can we rely upon this government and the next to care for sensitive information (that was not collected with informed or tacit consent).

o   I would counter too that the state has struggled to make the logical case why indiscriminate surveillance of all communications, webcams, mobile phone telephony amongst other sources is required.

-       ‘Actually, I think most people make a Hobbesian surveillance – freedom trade-off most of the time, but won’t articulate it as such. I think people are aware of CCTV cameras and of GCHQ and Snowden and have seen detective shows where the police use telecoms data to catch the baddies. Maybe they believe that state surveillance is there to stop bad guys doing bad things, not regular people doing good things, and that the world would be more dangerous and traditional freedoms would be eroded faster without surveillance. A perfectly understandable view.’

o   This argument entails tacit agreement with the state in exchange for security. There are a few problems with the Hobbes analogy, not least that we were not in a “state of nature” beforehand ("solitary, poor, nasty, brutish and short"). Note too that this explicitly means tacit agreement of freedoms (i.e. freedom is reduced for an exchange). Do you agree then that surveillance entails some loss of freedom? Also, a [social] contract usually implies that terms are understandable. This is not the case in surveillance and instead we are asked to take it on faith that: a) surveillance is necessary; b) that powers will not be exceeded; c) that there will be no mission creep; d) that data will be cared for and not lost or leaked. Plus, it is unclear that consent was gained (even privacy activists were surprised by scale of Snowden leaks). Lastly, if we are going by the social contract approach, then surely the state broke the last contract through indiscriminate surveillance?

o   I agree with the general point about Hobbes in that we have a police force to make us safe, but this argument does not scale to the activities undertaken by GCHQ/NSA because of the nature of the over-reach.

-       We need a proper set of surveillance safeguards – rights for ‘surveillees’, effective oversight and review, transparency, no dodgy deals with tech cos. etc. Establishing this depends on the development of a much more mature and mutually understanding relationship between privacy advocates and our surveillants.

o   Agreed! I do not think people working for the security service are malevolent, but I do think there is a systemic problem in how we are managing information and the capacities of new technologies. This requires social conversation and politicians who understand that they are not above the law, and who believe themselves to be accountable to the electorate.

-       Privacy advocates will not get anywhere if they’re permanently in opposition to forces that will always be stronger than they are. 

o   Unfortunately I agree, although I think you caricature the situation somewhat. Few believe the situation to be one where we seek no surveillance, but rather most prefer one that watches the bad guys/gals rather than the good guys/gals.

Really look forward to meeting in Sheffield and carrying on this much needed conversation!