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UK Mass Digital Surveillance Regime Ruled Illegal

On 30 January, the UK Court of Appeal ruled that the Data Retention and Investigatory Powers Act of 2014 (DRIPA), which made way for the Investigatory Powers Act of 2016 (IPA), did not restrict the access of confidential personal phone and web browsing records to investigations of serious crime. The IPA means that Internet service providers must now store details of everything we do online for twelve months and render it accessible to dozens of public bodies. 

This data can be virtually everything, from browsing records to personal information on private citizens, to include but not limited to: search engine activity, every phone call to text message plus geographical location, private financial and credit repair services, personal correspondence, medical records, and data from banking, insurance, and investment services which is stored on computers and mobile telephones.  This law obliges technology companies to hand over the data that they have about private citizens to intelligence agencies and it can force tech companies like Apple to remove encryption, ultimately weakening the security of their own products in total secrecy.

The ability of the government to spy on private citizens’ includes the encroachment upon the fundamental rights of privacy in financial matters, such that a “super-spy search engine” has become part of the arsenal that the Home Office is accused of hosting.  What does surveillance mean in an era where financial information needs to be safeguarded and when economic interests such as crypto robots and cryptocurrencies could face government spying?

Let’s step back to 2004, when philosopher Giorgio Agamben refused to submit passport biodata in 2004 in the United States when he famously rescinded his appointment to lecture at New York University.  Resisting the submission of fingerprints required to enter

the United States as a foreign visitor, Agamben’s actions then foreshadowed what he would later address in his 2013 Athens lecture:

The primacy of the biological identity over the political identity is certainly linked to the politicization of bare life in modern states. But one should never forget that the leveling of social identity on body identity began with the attempt to identify the recidivist criminals. We should not be astonished if today the normal relationship between the state and its citizens is defined by suspicion, police filing and control. The unspoken principle which rules our society can be stated like that: every citizen is a potential terrorist. But what is a State which is ruled by such a principle? Can we still define it as democratic State?

Agamben lays out the principle contradiction of surveillance within a democracy and this question must not only be applied to the current metamorphosis of the Global War on Terror (renamed by Obama as “overseas contingency operations”) in the US, but merits investigation right here in Britain.

The IPA represents the most Draconian of legislation to hit Britain in well over a century and has infectiously taken hold of privacy laws abroad in countries from the Netherlands to the Morocco.  And the notion of privacy has been enshrined in law for several centuries since Thomas M. Cooley outlined privacy as the “right to be left alone” in 1878.  With the increase of technology in our daily lives, the ability for the human subject to retain privacy remains a challenge today. Yet the 1990 inquiry, the Calcutt Report on privacy, rendered inconclusive the very definition of privacy. So if we do not define privacy, we are allowing this sort of subversion by our governments to encroach up that which is simply not theirs.

Why should we care about our privacy? After all, we are being told that this is in the interest of safety, right? The bare minimum of human life is hinged upon our ability to evoke power over our lives: who we allow in, who we do not. In essence, this law is about protecting both privacy and the free will attached to it.  The very insistence by any government that assumes eliminating privacy is key to its operations means that we have seriously miscalculated the government’s role in our lives. And inversely, that the government assumes that it can make such a request means that something is very wrong with our democracy.

Microsoft president Brad Smith has been one of the most vocal opponents of laws such as the IPA, suggesting that citizens should be protected in cyberspace just as they are in the physical world by the Geneva Convention.   Smith wrote about a digital Geneva Convention which would “require governments to come together, affirm international cybersecurity norms that have emerged in recent years, adopt new and binding rules.” If major players in the world of digital security and artificial intelligence are aware of the dangers posed by laws of the IPA, why then are members of Parliament largely unconcerned by this?

January’s judgement from the UK court could not have come at a better time when the right to human dignity and privacy are under assault internationally.  We must demand of the British government to respect our human rights to privacy and dignity of self-determination.

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Julian Vigo is a scholar, film-maker and human rights consultant. Her latest book is Earthquake in Haiti: The Pornography of Poverty and the Politics of Development (2015). She can be reached at: julian.vigo@gmail.com

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