Pol Clementsmith argues that where the principles of free speech, privacy and responsible anonymity are concerned, an open web, free from legislative back door snooping, is an essential digital right.
The first widely known document concerning the protection of a class of people against interference from the State was the Magna Carta. This year is the 800th anniversary of the signing of the Great Charter in 1215 after King John’s defeat at the hands of some of his more rebellious Barons. However, as soon as John was a sword’s length away from the negotiating table he immediately petitioned Pope Innocent III who, upon realising the potential power of the document to unseat autocrats, of which he was undoubtedly one, absolved John of any duty to observe the terms of the document, accepting the King’s pleading that he had been cajoled into stamping the document under duress.
Lord Denning has described the Magna Carta as “the greatest constitutional document of all times […] the foundation of the freedom of the individual against the arbitrary authority of the despot”, and whilst the Magna Carta has been hailed as the inspiration for much of today’s citizen rights’ legislation (including America’s Declaration of Independence, the 1791 Bill of Rights and the Declaration of Human Rights in 1948), it was never actually signed at Runnymede. King John merely put his seal to it. It then went through so many edits, additions and revisions that it became a much altered, skinnier version of itself only becoming statute in 1297, a full eighty two years after its inception.
Fast forward nearly 800 years and we find ourselves at the opposite end of the law making spectrum where legislation-stuffing, often carried out at breakneck speed, is the new normal. Legislation aimed squarely at allowing the State to steamroll over our human rights with the noble aim of protecting us from the war on terror.
Following on from reaction to the recent attacks in Europe, we have witnessed yet another assault by our own Palace of Westminster on our right to online privacy. A House of Lords debate on the inclusion of the Snooper’s Charter into the waistline of the already bulging Counter-Terrorism and Security Bill (CTSB) has, for the time being, delayed the ongoing erosion of our right to communicate freely online and without fear of state intervention.
Four senior cross-party peers led by the aptly named Lord King launched a last ditch attempt (carved up as eighteen pages of amendments to the CTSB), to reintroduce the Snooper’s Charter before the general election which would allow our security services unbridled access to everyone’s web and phone use.
The Open Rights Group has stated that the amendments contain a “series of threats to [our] digital rights” and are “nearly identical” to the failed draft Communications Data Bill of 2012 (the original Snooper’s Charter) which was rejected by a parliamentary committee who concluded that it was woefully inadequate legislation.
In supporting these reheated amendments, Lord King criticised those who called the measure a snooper’s charter as trading in “sanctimonious claptrap”, stating that, “we could easily see a Paris or a Belgium [attack happening in the UK]”. He then went on to expound that he was no “master of the internet”, and that, “I am not a Twitterer. I don’t know about Snapchat or Whatsapp, but the terrorists do…”.
King’s statements not only show his inability to understand the basic tenets of online communication but they expose his readiness to legislate the latest sound bite laws, like David Cameron’s impractical threat to ban encryption, without due care and attention to the fact that encryption is used everyday in thousands of transactions which keep us safe online and actually protect people who live under authoritarian regimes from torture and oppression. King eventually withdrew his amendments but added that he was likely to press the issue to a vote at next week’s report stage of the bill. We can only hope he didn’t Snapchat his intentions to the PM.
We have also witnessed similar sound bite scrambles by other European member states to allow greater access to our private communications by intelligence services – but last year the ECJ ruled that the controversial Data Retention Directive (DRD) was invalid citing an invasion of privacy by the State. Brought in to allow member states to compel communication service providers (ISPs) to collect and retain sensitive personal data, the DRD has been judged to contain a “wide ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data”.
The parliamentary assembly of the Council of Europe has also stated, in a recent report on mass surveillance, that existing British laws, which give MI5 and GCHQ wide-ranging powers to monitor our communications, are incompatible with our human rights. It argues that British surveillance may be at odds with Article 8, the right to privacy, Article 10 the right to freedom of expression and Article 6, the right to a fair trial.
The Electronic Frontier Foundation also shares my concern that in the wake of terrorist attacks, “we see governments moving swiftly to adopt new laws without consideration of the privacy rights being sacrificed in the process.” It is this swiftness to legislate-at-all-costs, as displayed in this week’s House of Lords debate that we should keep a weary eye on.
Meanwhile, the inventor of the world-wide-web, Tim Berners-Lee, believes that we need an online Magna Carta to “protect and enshrine” the independence of the medium he created and one that we all enjoy using today. His plan is part of an initiative called the Web We Want. It is asking for people to create a digital Bill of Rights in every jurisdiction; a statement of principles that would be supported by government officials, public institutions and corporations.
An outspoken critic of US and UK spy agency activity, in the wake of the Edward Snowden leaks, Berners-Lee has stated that, “unless we have an open, neutral internet we can rely on without worrying about what’s happening at the back door, we can’t have open government, good democracy, good healthcare, connected communities and diversity of culture.”
When the Magna Carta was eventually made into statute it had gone through a series of changes which reflected the ongoing aspects of the Barons and the Monarch’s needs. Thankfully, the most important sections, originally numbered 39 and 40 at Runnymeade, were retained and these have gone on to form the basis of the most important human rights legislation we now enjoy today:
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
(40) To no one will we sell, to no one deny or delay right or justice.
As Tim Berners-Lee insists, “It’s not naive to think we can have [a digital Magna Carta], but it is naive to think we can just sit back and get it.”
J.K. Simmons is on holiday.