Towards the end of last year Tom Stoppard gave a rather brilliant PEN/Pinter lecture on freedom of expression which was, in part, a kind of love letter to the place which has been his home since 1946: ‘There is no country in the world I would rather be living in, no country where I would feel safer.’
Later in the same lecture he listed his own ‘obsequies over the England we have mislaid’. The list began: ‘Surveillance, mis-selling pensions and insurance. Phone hacking. Celebrity culture. Premiership football. Dodgy dossier. Health and Safety. MPs’ expenses…’ And so on, before underlining his own personal mantra on human rights: ‘A free press makes all the other freedoms possible.’
I found myself nodding at all three themes of the lecture. I too can think of no country in which I’d rather live. There are things happening in the country which are dismaying, if not positively alarming. And no freedom is possible without a free press.
It had not struck me that these positions could be thought incompatible until about ten minutes into an appearance before the Commons Home Affairs Select Committee a few weeks later when the chair, Keith Vaz, asked me: ‘Do you love this country?’
One paper reported the question caused me ‘visible discomfort’. I was certainly surprised. Was it really unpatriotic to believe in the necessity of a strong intelligence service; to be deeply concerned at some aspects of its operations; and to assert the duty of journalists to stand aside from power in order to scrutinise it?
In America, the Snowden revelations have stirred up a momentum for reform that crosses political divides. Fox News and the libertarian right have made common cause with liberals to push back on mass state data collection and storage which they view as potentially dangerous and unconstitutional.
The right in Britain has so far been more muted. The Conservative members of the Home Affairs Select Committee showed zero interest in any of the issues that have surfaced over recent months, preferring to try to prove criminal behaviour by the Guardian — or exposing at the very least a possible breach of s8 (16) of FedEx’s terms of carriage. One tweeter was impelled to ask: ‘What would Conservative giants, like Burke, Disraeli, Churchill, think of the today’s minnow Tories talking about FedEx parcels not liberty?’
Before the last election it was, notably, Tory MPs and peers — together with many Lib Dems — who spoke up for liberty and against an overweening surveillance state. David Cameron, Chris Grayling and Dominic Grieve all forensically dissected Labour proposals for building ever bigger state databases. David Davis, Dominic Raab and Rory Stewart are among the current crop of Conservatives who do keep a watchful eye on the formidable technologies now deployed. When Parliament has recently been given the opportunity to vote on potentially intrusive behaviour by the state — as with the so-called Snoopers’ Charter — it has consistently rejected it.
But there is something about the incantation of ‘national security’ that turns heads and extinguishes debate. In the same week as Stoppard’s fierce defence of a free press a respected former editor of the Independent wrote a piece under the headline: ‘If MI5 warns that this is not in the public interest, who am I to disbelieve them?’ — which might actually be a useful question for first-year journalism students. The former editor would not, he said, have published the Snowden disclosures. Other British journalists have simply avoided the subject altogether.
I do not, incidentally, believe the frowning disapproval of those who vow they would never have touched the stuff. It is unimaginable to me that any editor I have ever known would actually have declined to look at any of the Snowden material or — having looked at it — would have voluntarily taken a Black and Decker to their own computers and published not a word.
It’s been suggested to me that the widespread silence — in the UK, but nowhere else: the rest of the world is in the midst of bubbling debate — reflects a general crossness with the Guardian over Leveson. The Guardian washed Fleet Street’s phone-hacking laundry in public. That led to Leveson. Leveson was bad. Therefore…
But I also find that hard to believe, if only because the British press as a whole is currently trying to persuade sceptical politicians and the public that it can be trusted to regulate itself. If our editorial leaders can’t distinguish between journalism that needs to be defended because it is of public importance and journalism in which there is no public interest, then self-regulation cannot possibly succeed.
It seems more likely that some people can’t get beyond a straight binary choice between privacy and security. Even this acknowledges that there are at least two competing public interests which must be weighed by someone. But as the Snowden disclosures have continued, it’s become apparent that there are several significant issues which need to be added to be considered and balanced. Here are some of them:
Consent. Should citizens be allowed to know about the new technologies which have been deployed since the beginning of this century to collect, store and analyse every byte of their digital lives?
Parliamentary approval. Should MPs have had a say before these new mass databases and collection techniques were implemented?
Legality. Most of the laws under which this activity happens were passed in an age of crocodile clips and copper wires. Is it right that analogue laws should be stretched to cover digital spying?
The private sector. Much intelligence nowadays piggy-backs on the capabilities of private technology and telecom companies. How many of these companies went beyond what they were legally required to do? Do their customers and shareholders have a right to know how their information is shared behind users’/subscribers’ backs and on what legal (or voluntary) basis?
The integrity of the web itself. There is evidence that the basic security of the digital platforms used by all of us has been weakened for the benefit of the NSA. Cryptologists, business leaders and privacy experts have been appalled to learn about what the NSA and GCHQ have been up to. Do Sir Tim Berners-Lee’s views on the web count as much as the spies’?
The risk to the digital economy. US and UK digital entrepreneurs are gravely concerned at a potential backlash against western tech companies which, it’s estimated, could cost them tens of billions of dollars over the next few years.
Relationships with friendly governments and institutions. The US has also promised to stop spying on other allies through membership of some international civil institutions. When is it right to spy on our friends — and do we mind when they spy on us?
Has everyone in the intelligence agencies told the truth and behaved legally within their own frameworks? Several members of Congress doubt this. Declassified documents released from the Fisa courts show repeated violations by the NSA. The recent Gibson report on rendition implied that our own agencies had been less than frank with Westminster’s Intelligence and Security Committee. The former Master of the Rolls, Lord Neuberger, found in 2010 that MI5 had deliberately misled Parliament and had a ‘culture of suppression’ that undermined government assurances about its conduct.
Privacy. The collection of billions of digital and telephonic events a day represents the most staggering potential invasion of privacy in history. Security advocates paint this in a benign light, saying that it is merely ‘metadata’, which they compare to old-fashioned phone billing records. Privacy experts vigorously dispute this and say that metadata gives a near-complete picture of an individual’s life. What are the implications for medical, financial, journalistic, legal and sexual records and general individual privacy?
Proportionality. Is there convincing evidence that bulk data collection and storage is necessary and proportionate? Security chiefs insist yes. At least three US intelligence oversight senators say they haven’t seen such evidence. Ditto a federal judge. President Obama’s own review panel expresses outright scepticism.
There is, finally, the question of security of information. Giant American databases have quite spectacularly leaked twice in the past four years (Manning and Snowden). Given that it appears to be impossible to keep the state’s most secret secrets secure, why should we trust any state database with our most private information?
So there are many interesting and important issues now revealed. We currently rely on secret courts and secret committees. But how can voters judge how well they’ve addressed the issues listed above — if (in some cases) at all?
Just before Christmas the story took two remarkable turns. First, a (Bush-appointed) judge in Washington found that the NSA’s ‘almost Orwellian’ mass collection of Americans’ data was probably unconstitutional. The next day Obama’s own review panel came out with a list of 46 sweeping reforms of the NSA, and all the leading US tech companies had a meeting with Obama to express their alarm at what they were learning.
Snowden himself is not a liberal but a libertarian conservative. He had come to have grave fears about the potential power of the state power for what he termed ‘suspicionless surveillance’. He had little confidence that politicians were being fully and honestly informed about that power — or that they were adequately equipped for the role of oversight. And so he went to a free press in order to blow the whistle.
The former Conservative chief whip Lord Blencathra (David Maclean as was) said of Snowden in October: ‘He is the first leaker I have ever felt sympathy for or felt had a potential justice behind what he was doing.’ Maclean felt he’d been kept in the dark while scrutinising the parliamentary scrutiny of the data communications bill. Last week the libertarian blogger Guido Fawkes described Snowden as a hero and demanded a pardon. Slowly, it seems, British conservatives are waking up to the significance of the issues at stake.