At its peak, the Stasi employed one agent for every 165 East Germans. Spying was a labour-intensive business then — you needed to monitor telephone calls, steam open mail, plant a bug, follow suspects on shopping trips and then write reports for the KGB. The advantage was that, human nature being what it is, the Stasi would probably succeed in gathering dirt on all but the most saintly. The drawback: trying to gather files on so many millions could almost bankrupt a government.
How much easier it is nowadays. By interrogating someone’s mobile phone, the police can gather more information than the Stasi could dream of compiling. The modern smartphone contains all the secrets of a life: bank balances, emails to lawyers, texts to lovers. There are apps for gambling addiction, even pregnancy advice. Your phone knows how fast you’ve driven and where you’ve been — not just within a town, but within a room. All this can be used as evidence against you, should the authorities find it useful.
This is why the unfolding scandal of police hacking journalists’ phones matters. Like the media phone-hacking scandal that led to the Leveson inquiry, it offers a glimpse into an abuse of power that doubtless involves far more victims. Phone hacking arose when private detectives realised that new technology allowed them to hack into the voicemails of victims. With police hacking, the bobbies worked out that new technology and new laws let them ask for the phone records of any journalist — they no longer had to go through the tiresome ritual of asking ‘Who’s your source?’ and being told to get stuffed. They could just grab the journalists’ phone records and work it out for themselves.
The first such case that came to light involved Tom Newton Dunn, political editor of the Sun. The Metropolitan Police wanted the name of one of his contacts, and knew better than to ask. So they ordered Vodafone to hand over his phone records. Vodafone obliged: under the law, it has to.
This month, another newspaper found it had been targeted by the police: the Mail on Sunday had spent £150,000 in legal fees to protect its source in the Chris Huhne speeding points saga — which it succeeded in doing. Until Kent Police secretly ordered the phone records of a Mail on Sunday journalist and found the source that way.
All this raises obvious and urgent questions: do we believe that journalists are the only unknowing victims of police hacking? Who else do they target, how often — and why? And how long have they been doing it?
Like many curtailments of British liberties, this started off in the name of fighting terrorism. Since the Regulation of Investigatory Powers Act (Ripa) was passed 14 years ago, an average 500,000 pieces of communications data have been demanded by police, intelligence services and the taxman. Ripa was intended as anti-terror legislation but last year, for example, the police made seven requests for every one issued by spies. It suits the police to hide behind the phrase ‘security services’, which has strong connotations of MI5. Spies never talk, so their name is easily used in vain.
It was the police, not the spooks, who wanted the power to imprison suspects without charge for 90 days. And it’s the police who are pressing for extra snooping powers now. Of course, the amount of data they have been able to seize has exploded as phones have turned into handheld computers. That has transformed the nature of police work. If Theresa May were to give police the power to walk into anyone’s home without a warrant from a judge and go through their itemised phone bills, we might say that Britain had become a police state — especially if the public had no means of finding out about, let alone appealing against, wrongful searches.
The only check for police using snooping powers is the Investigatory Powers Tribunal, which does not allow complainants to know why they were targeted in the first place. In 14 years it has upheld just 14 complaints — which is why the police seemed so confident about hacking journalists. Last year, they used Ripa to access a piece of confidential information every 73 seconds. Either there are a lot of terrorists in Britain, or there are a lot of policemen who need reining in.
America has been doing some reining in. Four months ago, the United States Supreme Court passed a ruling telling police that they could not look through people’s phones any more than they could rifle through their homes. Invoking the Fourth Amendment (‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’), the court ruled that the time had come for the police to recognise that hacking a mobile phone was an intrusion. ‘The fact that technology now allows an individual to carry information in his hand does not make such information any less worthy of the protection,’ it said.
Indeed, the ruling said that calling such devices phones had become ‘misleading shorthand’. They ‘could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums… A cellphone search would typically expose to the government far more than the most exhaustive search of a house.’
In America, then, the right to privacy is being vigorously defended. Unfortunately, the same cannot be said of Britain. Our police cannot (legally) hack actual communications, just our telephone records, but only recently they were asking the government to force email companies to keep everyone’s records. This, the so-called ‘snooper’s charter’, has been dropped. But it shows the direction of travel. The government is more interested in expanding the power of the state to snoop than it is in protecting the citizen from snoopers.
But there are politicians who recognise the problem. Keith Vaz, the chair of the home affairs select committee, has asked every police force how many journalists they have spied on. This may lead to a more important question: how may non-journalists have had their itemised phone bills trawled by police for no good reason? And when might it be time for a debate about the protections that citizens need from the alarming alliance of big government and big data?
Lord Falconer, who as Lord Chancellor helped Labour introduce the snooping powers, now believes they are being abused by police. He intended these measures to be available only for urgent inquiries, not for routine investigations. And yet the attitude of the police, he says, is now: ‘Who cares about that?’
The time has come to provide an answer. The police may argue that, without their new powers of espionage, drug dealers would go unpunished and human traffickers would slip the net. That may be true: privacy comes at a cost. It’s time to look at where all this surveillance has led us — and decide whether, in Britain, we believe that the price for privacy is worth paying.
Fraser Nelson and Lord Falconer discuss snooping in this week’s ‘View from 22’