Transparent, Informed

Simon Jenkins writes:

The US Congress passed a Freedom Act this week, partially curbing its power to harvest bulk data on the lives of America’s citizens

A congressional tussle has been going on between libertarians and securocrats ever since the Edward Snowden whistleblowing of 2013.

That argument, and the act itself, vindicate Snowden’s disclosures, whatever their legality.

Meanwhile Britain’s government moves relentlessly in the opposite direction. It wants to revive the “snooper’s charter” bill, which failed in the last parliament.

Among other things, this would give police and secret services more surveillance powers and, David Cameron hopes, ban server encryption that could impede surveillance.

In addition the government has refused to publish the Sheinwald report on security oversight.

This is said to recommend a treaty marrying British and US surveillance regimes, for the sensible reason that electronic data is now a trans-border concept.

Since this weakens the case for a British snooper’s charter, the Cabinet Office has suppressed the report. Nothing more clearly illustrates the mesmeric hold this body has over British ministers.

For most lay people, this is a zone of total incomprehension.

Sceptics of state power oppose more surveillance. Others just shrug and agree with the former foreign secretary William Hague (and Orwell’s Big Brother) that “those with nothing to hide have nothing to fear.”

No serious democrat could ignore the Snowden revelations. They showed eavesdropping on an industrial scale by bureaucracies operating free of legal or democratic accountability.

Nor were they ignored. President Obama set up a commission, which published a 300-page report. Congress held hearings.

The director of national intelligence, James Clapper, admitted the substance of Snowden’s charges. There were resignations, 30 bills to regulate the National Security Agency and now a statute.

The constitution’s fourth amendment, defending private property, and papers was clear “that no warrants shall be issued but upon probable cause”.

Britain just cannot understand America’s commitment to privacy of communication. Parliament’s reaction to Snowden was to rant at his “treachery”.

The intelligence and security committee cringed before Britain’s security bosses last year, like novice monks before a college of cardinals.

At no point did they challenge the services’ scope or methods. There was no discussion of proportionality or value for money. It was deference to state power at its most craven.

The security services clearly need updated powers, but they have made a dreadful job of getting them. Technology has moved on from steaming letters open and tapping phones.

The data haystack must be at least accessible to the authorities for a needle to be found. Yet this is just the start of the debate.

Securocrats, in my experience, regard civil liberty as the enemy of their freemasonry. They see no balance between their explicit desire to gather ever more data and vague liberal ideas of personal privacy (except their own).

All data validates itself. As a Snowden informant said: “We collect everything, because we can.” 

The purpose of military intelligence was traditionally to guard the nation against some existential threat. Since the end of the cold war (and probably long before) there has been no such threat to Britain, which is why the national security lobby grasped so eagerly at Tony Blair’s “war on terror”.

Terrorism does not menace state security, except in a delusional mind. It poses the threat of a crime.

Pretending a terrorist act is an act of war is dangerous. It grants every murderer the status he craves, that of a soldier fighting a mighty power. He wants his nail bomb and gun to menace an entire nation.

Nor is he alone. Money launderers, drug dealers and child molesters are now cited alongside terrorists in the demonology of state paranoia.

Anecdotal evidence suggests data harvesting makes little contribution to national defence.

Even in the category of terrorism, the Obama commission found little evidence that data banks had themselves directly improved national security.

Almost all terrorist outrages, from the Boston marathon bombing to the killing of Lee Rigby, were committed by those known to the police, and therefore within an existing surveillance regime.

The west’s armed forces are losing one war after another to AK-47s and roadside bombs. To spend billions trawling emails is like Cardigan’s troops fiddling with their braid on the eve of Balaclava.

There must be a way through this other than by parliamentary rows and secret reports.

Surveillance is needed if criminals are to be caught; but data already being garnered, authorised or not, by the state and private corporations is both dangerous to citizens and insecure.

Someone in government is already bugging defence lawyers and journalists’ contacts. The NHS sells medical records to drug firms. HMRC loses files, and the police pass material to the press.

As Snowden himself proves, the surveillance state is undisciplined and chaotic. Just as there is no right to untrammelled freedom, so there is no right to unmonitored state intrusion.

I do not want my movements, contacts and conversations daily scanned by an algorithmic mole, and then possibly sold or leaked to a web harvester.

I do not want to be on a no-fly list, no reasons given, as now happens in America.

That is why transparent, informed debate, coupled with an international oversight protocol, is so vital.

But at root lies a simple constitutional principle: that a warrant to intrude, like a warrant to arrest, must carry just cause independently authorised.

Liberty in these matters, said Obama last year, “cannot depend on the good intentions of those in power. It depends on the law.” 

Americans understand that. Britons do not. More fool them.