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The Privacy Primer

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Privacy has become one of the hot topics of the 21st century. At a moment in history when people are increasingly aware of the need for legal and constitutional reform to preserve freedom, the state of this fragile and ancient right has become a matter of general concern.

Hardly a day passes without a department or corporation being accused of violating privacy. Intrusive and invasive proposals for collecting and processing personal information are commonplace, witnessed most dramatically in the current mania for building massive centralised databases.

People in surveillance societies such as Britain are now accustomed to scrutiny. Mass CCTV, airport security, credit checks, constant demands for identity documents, intrusion by TV licencing inspectors, mandatory DNA collection, workplace surveillance, drug tests and criminal record checks are commonplace. And those are just the most obvious and visible intrusions.

It might at first be tempting to imagine that the collection and processing of so much information has become merely a fact of modern life. And, after all, the honest citizen should have nothing to fear. However for many people, the loss in 2007 of child benefit records of every family in Britain served as a wake-up call on such issues. Personal information that has real value to the individual and to the state is increasingly at risk of disclosure to criminal interests, and this threat has fundamentally changed the significance of the privacy issue.

People are told, with some justification, that Britain is now one of the world’s foremost surveillance societies, an assessment that succeeds in occupying millions of column inches a year in the popular press. Yet behind the fact of such surveillance are pernicious dynamics and drivers that go to the heart of our democracy.

WHAT IS PRIVACY?

In recent years the arcane concept of privacy has found political traction. The Tory flagship newspaper the Daily Telegraph saw the writing on the wall in the mid 1990s, using its ’Free Country‘ campaign to mutate almost overnight into a paper espousing individual liberty and freedom from surveillance. Ten years later, the Tory party itself surprisingly took the same path, opposing the government on such issues as identity cards.

However, despite this remarkable controversy, few people agree on the precise meaning of privacy. In its early ambition to establish a Bill of Rights, the Labour administration of Gordon Brown asked people to consider what it means to be British. Few people could agree on an answer to that question. Similarly, privacy means different things to different people. Theoretically, the term equates to the right of people to decide for themselves how their personal information should be used. In reality, everyone makes value choices about which forms of privacy invasion to accept or reject. Most do so by way of gut instinct rather than careful analysis.

Historically, this complex mechanism sets the boundary between the intrusion of state and society, and right of an individual to say “go away”. It is not a ’selfish‘ right. Rather, it is a means of determining the autonomy of the individual, set against the values of society.

Privacy is perhaps the most unruly and controversial of all human rights. Its definition varies widely according to context and environment to the extent that even after decades of academic interest in the subject, the world’s leading experts have been unable to agree on a single definition. One pioneer in the field, Alan Westin, described privacy as, “Part philosophy, some semantics, and much pure passion”. On that last point, at least, everyone agrees.[1]

Even before the terrorist attacks of September 11 2001, the privacy issue had never been simple. The protection of individual privacy has always been one of the great polemics of public policy. At its heart is an ancient struggle for power. This struggle is played out each day in countless forms. With each security initiative – be it CCTV, national security, email surveillance or workplace monitoring – society struggles daily to assess competing claims for the right to either maintain privacy, or to pursue surveillance.

PRIVACY AND CULTURE

Privacy is neither a modern nor a Western concept. While the idea of privacy as a fundamental human right still raises eyebrows in many developing countries, the concept is familiar at an intimate level to the citizens of those cultures. For example, limits to intrusion into private and bodily space are respected and understood in many Asian and Middle Eastern cultures while some governments that deny privacy as a human right are willing to practice it in the face of calls for transparency of official information.

At societal and government levels, privacy may be viewed with some suspicion, and yet at a personal level, each person draws a curtain around certain aspects of family and private life. In Thailand, privacy invasion by the state has rarely been an issue, and yet the boundaries of personal space in family and religious life are universally acknowledged and respected.

In some respects, privacy is a little like freedom: the less you have of it, the easier it is to recognise. And, like the concept of freedom, privacy means different things to different cultures. In France, it equates most closely to liberty. In America, it is an inseparable component of individual freedoms – particularly freedom from intrusion by federal government. Many European countries interpret privacy as the protection of personal data. Since the days of the huge campaign against the government’s proposed identity card in 1987, most Australians view privacy as a measure of state power, while the government views it as a set of strictly defined legal rights.

PRIVACY UNDER THREAT

Yet while the issue is more complex than ever, it has never been more pressing. There has probably never been a time in history when so much information has been amassed on the population at large.

Details of the average economically active adult in the developed world are located in around a thousand major databases – enough processed data to compile a formidable reference book for each person. Electronic visual surveillance in urban centres is almost ubiquitous. Nearly all forms of electronic communication are now routinely scanned and profiled. Companies too are making vast investments in surveillance products and services. Mobile phone geographical tracking, workplace drug testing equipment, workplace monitoring systems and High Street stores selling spying equipment for domestic use are enjoying booming revenues.

These activities have spawned a burgeoning economic sector. In Britain, the surveillance industry in all its forms – private investigators, credit agencies, security services and others – employs more than a million people.

This population of professional snoopers is explained in part by the emergence of mass surveillance. In the past, surveillance was based on the targeting of specific individuals or groups. Now, systematic surveillance in a growing number of fields pro-actively profiles millions of people at a time. It is now common wisdom that the power, capacity and speed of information technology are accelerating rapidly. The extent of privacy invasion – or certainly the potential to invade privacy – increases correspondingly. But it is not merely the increased capacity and decreasing cost of information technology that creates threats to privacy. Globalisation of systems such as the Internet removes geographical limitations (and legal protections) to the flow of data.

The joining together of systems and the development of common technical standards are leading to the elimination of technological barriers between systems. With the constantly increasing capacity and speed of computing equipment, and the decreasing cost and size of components, the computing power once only found in vast mainframes can now be placed on a laptop – or a memory stick.

PUBLIC RESPONSE TO THREATS TO PRIVACY

Traditionally, public reaction to privacy invasion has been contradictory and unpredictable. While opinion polls consistently indicate that people care about privacy, public opposition even to the most blatant privacy invasion is sporadic. Everyone, no matter what their personal circumstances, is concerned about intrusion. For a single parent the threat may arise from constant intrusion by benefits authorities. For an employee of a company the threat may be subtler, yet no less significant. Intrusion takes many forms, from covert monitoring to outright harassment.

Whether through cause or effect, privacy now occupies an unenviable place in the catalogue of human rights. Throughout the past quarter century, no other fundamental right in the arena of public policy has generated such turbulence and controversy. And yet, as British academic James Michael has observed, “privacy is the right from which all other rights derive”. It is central to the freedom and autonomy of people, and it is perhaps the key factor that limits the power of the state.

To those with a strong interest in the protection of their rights, privacy protection is one way of drawing the line at how far society can intrude into a person’s affairs. In that context, privacy is a question of power – yours, the government’s, your family’s, your employer’s and your neighbour’s.

At its most dramatic level, privacy reins in the zeal of government. At a more profound level, it creates a bedrock of decency in human relations.

THE THREAT TO PRIVACY FROM STATES

Nevertheless, in recent years, parliaments throughout the world have enacted legislation intended to comprehensively increase government’s reach into the private life of nearly all citizens and residents. Competing “public interest” claims on the grounds of security, law enforcement, the fight against terrorism and illegal immigration, administrative efficiency and welfare fraud have rendered the fundamental right of privacy fragile and exposed. The extent of surveillance over the lives of many people has now reached an unprecedented level. Conversely, laws that ostensibly protect privacy and freedoms are frequently flawed – riddled with exceptions and exemptions that can allow government a free hand to intrude on private life.

At the same time, technological advances, technology standards, interoperability between information systems and the globalisation of information have placed extraordinary pressure on the few remaining privacy safeguards. The effect of these developments has been to create surveillance societies that nurture hostile environments for privacy.

Governments have created hundreds of key policy initiatives that, combined, may fundamentally destabilise core elements of personal privacy. Among these are proposals for the creation across society of ’perfect‘ identity using fingerprint- and iris-scanning biometrics, the linkage of public sector computer systems, the development of real-time tracking and monitoring throughout the communications spectrum, the development of real-time geographic vehicle and mobile-phone tracking, national DNA databases, the creation of global information sharing agreements and the elimination of anonymity in cyberspace.

Public engagement with these developments is marginal. Increasingly, people feel unsettled about surveillance and are anxious to protect their privacy, but seem powerless to take direct action. The problem for civil society – or indeed anyone wishing to challenge surveillance – is not simply the sheer magnitude of the threat, but also its complexity and diversity.

It is important for each country to decide rationally and openly which elements of personal privacy should be lost, but it is also important for each country to understand how far down the path of mass surveillance it has already travelled.

Most governments recognise the value of individual privacy, even if they privately despise it. However the past ten years has witnessed an assault on privacy by the UK government that is almost without precedent in the democratic world. The government has largely abandoned any responsibility for protection of privacy – or, at least, abandoned any responsibility to keep surveillance in check. While it is true that many government departments are obsessed with their own data protection compliance, they are less interested in controlling surveillance.

There are dozens of examples of recent laws that have encroached substantially on privacy. The Communications Data Bill (2012) would require communications providers to hand over all traffic records (such as who calls who, who emails who, and mobile phone location information) so it can be archived by government. This proposed measure would create a surveillance infrastructure far more intrusive than anything yet seen in almost any democratic country. The Health and Social Care Act 2001 removes the traditional right of patients to control their own health information, transferring the ownership of this data to the Secretary of State. The Identity Cards Act would have placed all key personal information under the control of the Home Secretary, imposing substantial requirements on individuals to comply with demands by the state to furnish information, attend meetings or report changes of personal circumstances.

Legislation since 1995 has permitted a range of public authorities the right to share information on every UK resident. The Police and Criminal Evidence Act 1984 and the Serious Organised Crime and Police Act 2005 between them create a far-reaching web of invasions, including compulsory acquisition and permanent retention of DNA for even the most trivial offences or even for mere arrest. Each of these laws progressively undermines the provisions of the Data Protection Act 1998, a law designed (albeit to a minimum standard of protection) to preserve citizen rights over personal information. It is little wonder that when the government proposed the most intrusive and far reaching identity card system in the world, involving a register of unprecedented scale, there was little that any existing law would do to interfere with the scheme.

CONCLUSION

This systematic erosion of citizen rights might to one extent be intellectually sustainable were it not for the sheer hypocrisy of its many perpetrators. MPs who cheerfully support laws intended to force citizens to yield personal information, have opposed demands for disclosure of their own expenses. Police, most of whom support the idea of mandatory DNA testing, refused en masse to be tested because of fears of paternity checks of their own ranks. Senior civil servants are often happy to see the Data Protection Act eroded, but are frequently not prepared to ensure that the Freedom of Information Act is properly enforced. Commentators decry privacy while ensuring that their own telephone numbers remain ex-directory, and prominent politicians lobby for a secure data system for VIPs in the national identity card scheme. The double standards continue endlessly.

At a time when trust in government is plummeting, officials and MPs must learn that privacy is a public interest in its own right. They must understand that a society without privacy loses its stability.

Even the most zealous privacy advocate understands that there is a need to negotiate an equation between the desire for full autonomy and the demands of an information-hungry government. It is time for our elected representatives to adopt a similar view and learn to respect our privacy in the manner that they would like the world to respect their own rights. If this sea change does not occur, citizens should consider taking matters into their own hands. With the exception of those cases where the law compels accurate information, a few innocent mistakes in the data you place onto paper forms and computer systems can easily be justified. Plausible deniability is a game that should not be reserved for the elite.

 



[1] Alan F Westin; “Privacy & Freedom”, Athenium, New York, 1967, page x