You may have noticed WhatsApp’s latest update that increases the privacy of any content you send over the app. All messages are now encrypted from end to end, protecting what you send from being accessed by criminals, the state and even WhatsApp itself.
This reinforcement of users’ privacy comes at a crucial juncture for the changing way our private messages can be accessed by people other than ourselves or their recipients. Over in the US, the FBI have tactically won their battle with Apple. The Bureau had taken the communications giant to court in an attempt to get them to provide a legal ‘backdoor’ into the locked iPhone of the San Bernardino shooter. Before the case could be concluded the Bureau employed the work of an unidentified ‘third party’, specialising in decryption technology, to unlock the device.
The significance of this dispute is that it highlights one of the biggest political issues of tracking and investigating criminal activity in a world where increasing amounts of personal data are stored or accessed online. How does the state balance the right to privacy over the need to access to the information we store on our smartphones, tablets and in the apps that dominate our social communications?
Right to privacy VS security – can we have one without the other?
Here in the UK, the Home Secretary is inching closer towards succeeding in having the biggest bill in history enter the statute books. The Investigatory Communications bill is part of her efforts to legalise and make easier the type of surveillance GCHQ were revealed to have been conducting by whistle-blower Edward Snowden. It passed its second reading through parliament on 15th March.
In her foreword to the draft bill, May says that it seeks to ‘protect both privacy and security’. In a letter to the Guardian signed by 200 senior lawyers and academics however, legal experts have raised serious concerns over the bill’s invasion of privacy. If passed without serious amendments, it would give public authorities generalised access to individuals’ communications data through its bulk interception warrants and bulk equipment interference warrants. These ensure the creation of the legal backdoor the FBI tried to compel Apple into providing. In essence, the government will compel communications service providers to provide loopholes in their software that enable the government to hack these companies’ customers once a warrant has been issued. You will not know when you have been hacked, nor will you have the right to find out. You don’t even have to be under suspicion of involvement in criminal activity.
Legal experts have argued that unless recommendations for revisions are incorporated, the government risks being in breach of our Article 8 right to a private and family life. A cynic might quip that this may be related to why Theresa May’s next project is to abolish the Human Rights Act, in which such rights are protected.
With even the UN criticising the draft bill for its authorisation of mass surveillance of the general population, the bill sets us on the path of becoming ‘Airstrip One’ in Orwell’s Nineteen Eighty-Four, in which the state keeps all of its residents under constant surveillance so that they can be watched and listened to at any time, with or without their knowledge.
The justification of course is that these provisions will make our country a safer place. More terrorist attacks will be prevented, online users and platforms of and for illegal and harmful content – such as child pornography – will be more easily discovered. The population’s safety and security will increase.
Easier access to our personal information for the government will however also make entry into our private lives possible for those with more sinister intentions, such as criminal hackers.
Worse still, the bill makes no provision for the protection of legal or journalistic privilege. Solicitors and barristers will no longer be able to assure a client of confidentiality. Journalists will be unable to assure their sources’ that they will remain anonymous. It is easy to see how the failure to provide such protections will begin the erosion of one of the fundamentals of a democratic society; freedom of expression.
The bill also poses massive practical problems. How will the police and intelligence agencies be able to pinpoint criminal activity quickly and efficiently when everybody’s communications data and internet history is being gathered?
A Danish digital rights group recently provided MPs with evidence that the cost of mass surveillance would reach £1bn – seven times the Home Office’s highest estimate.
On balance, the bill does not appear to be fit for purpose. Not only will it pose a serious invasion of privacy, it does not ensure the level of security May is hoping to achieve with its enactment.
There is still hope for amendments to be made. Shadow Home Secretary Andy Burnham has written to Theresa May and set the case for, inter alia, the protection of legal and journalistic material, a presumption in favour of privacy and a higher threshold for authorities to gain access to records. Legal professionals and human rights groups are lobbying the government to protect the right to privacy that the bill interferes with.
If all else fails, those of us who value our privacy may wish to consider investing in good old-fashioned writing paper and a pen.