The right to privacy will considerably suffer from the adoption of emergency legislation that has been proposed by the British government on July 10, 2014. The law would grant British intelligence and law enforcement agencies with access to data about millions of people’s communications. But the UN High Commissioner for Human Rights, Navi Pillay, declared, while releasing a report entitled « The Right to Privacy in the Digital Age », that « rushing through wide-ranging emergency legislation » was « difficult to justify », given the content of the text and the ongoing proceedings in the UK on these issues.
The draft emergency bill would authorise the British government to require telephone and internet companies in the UK and abroad to collect metadata on their customers’ communications and store it for up to 12 months. The sole difference with the current law is that companies will not be required anymore to keep it for 12 months as a compulsory period. Intelligence and law enforcement officials will be able to access that data under the law governing surveillance, the Regulation of Investigatory Powers Act (RIPA) of 2000. RIPA allows for braod government surveillance with no independent scrutiny.
While apologists of state surveillance claim collection of communication metadata is benign, the UN report published by Ms. Navi Pillay says that making a distinction between collection of content and metadata « is not persuasive », since « the aggregation of information commonly referred to as « metadata » may give an insight into an individual’s behavior, social relationships, private preferences and identity that go beyond even that conveyed by accessing the content of a private communication ». Therefore metadata collection has a « chilling effect on rights » because individuals will be discouraged from expressing fully their thoughts in electronic communications. The UN reports also remarks that governments are increasingly relying on the private sector to conduct and facilitate digital surveillance.
The United Nations report finds that surveillance practices carried out by the major powers, the United States and the United Kingdom, in particular, violate basic principles of international law and are destructive of democratic rights. Human Rights Watch researcher IzzaLeghtas also commented that “it is outrageous that instead of reforming its law to address concerns about its involvement in mass surveillance, the UK government is renewing its powers to monitor the communications of people who aren’t suspected of breaking any laws”.
The new law is intended to replace legislation that became invalid when the EU Court of Justice rejected the EU directive from which it was drawn. The directive was “a serious interference with the fundamental right of citizens to privacy”, said the Advocate General, Mr. Cruz Villalon. The directive should have defined the fundamental principles governing the determination of the minimum guarantees for access to the data collected and retained and their use. The directive attempted to lay down an obligation on the providers of telephone or electronic communications services to collect and retain traffic and location data for such communications. The British government, by adopting it in the Commons in a single day (it should be scrutinized today, on July 18, by the House of Lords, but Lords already complained of the fast-track process), circumvented the concerns of the EU Court of Justice, and the bill did not address the court’s concerns that the directive interfered with the rights of “practically the entire European population”.
The DRIP bill goes further, by extending “the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally”, says an open letter of 15 British experts in technology law. The open letter also underlines that there is no point for incorporating “a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive”. The open letter concludes that the DRIP bill is a “serious expansion of the British surveillance state”, which should never have been fast-tracked.
Article 12 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”. The UN report also notes that when uncertainty exists about the source of a communication, surveillance agencies assume it is « foreign », to be able to collect and store it. It says that « on every continent, Governments have used both formal legal mechanisms and covert methods to gain access to content, as well as to metadata ».
Governments are accumulating a massive amount of data through which they can comb ad libidum. There seems to be a parallel between the thorough defense of capitalism and of market institutions, through violence when needed, and the capitalist accumulation of data on a gargantuan scale by state authorities, with the conspicuous help of security companies. An Orwellian surveillance state is taking shape, and is merging with security companies. In the USA a few reforms have been undertaken to reduce its size very recently, but on the contrary in the UK it is increasing. State « data capitalism » goes hand-in-hand with the security business, creating the military-industrial complex of the XXIst century. Dwight D. Eisenhower warned us of its expansion in its farewell address on January 17, 1961, but the moloch is still alive.
