Introduction
One of the most disturbing features of modernity is our lack of control; the increasing erosion of our control in two main areas: our privacy and our minds. I want to consider the former, in light of an amendment to a soon-to-be-passed Bill; the Online Safety Bill. The amendment I shall speak of decrypts certain services and therefore negates our privacy, leaving us under what is effectively government surveillance. Let us first set out the broader context of this issue through considering the concept of ‘freedom’. Then we shall look into the specifics of the amendment. Is this really something that we should find so alarming and therefore seek to shun?
The Two Types of Freedom
For me one of the most fundamental aspects of law, in a broad sense, what makes it more complex but also incredibly interesting, is this tension between social freedom and individual freedom. ‘Social freedom’ rests upon legality, the reason why we have laws; revolving around maintenance of safety and protection. Margaret Atwood makes a distinction between two types of freedom through the mouthpiece of her character Aunt Lydia, in ‘The Handmaid’s Tale’; ‘Freedom from’ and ‘Freedom To’. Social Freedom is generally ‘Freedom from’. ‘Freedom to’ is broadly individual freedom, linking to ideologies such as Classical Liberalism, Libertarians, and at its extreme, anarchy. ‘Freedom from’ at its extreme is authoritarianism. It denotes freedom from certain harms and does so by limiting ‘Freedom to’. The very fact we have laws, a criminal code, is where we accept our individual freedoms can be limited for the functioning together as a society. It is natural that we have debates between these two types of freedom. For example, the debate that caused the abandonment of Part 3 of the Digital Economy Bill, which aimed to prevent children from being exposed to inappropriate pornographic material, on the basis of concerns around data security and privacy. The latter concerns looked to maintain Individual Freedom. However, it is not always that each type of freedom creates tensions with the other. This stems from the point that the individual and society are inextricably linked; society affects the individual and their actions, and individuals make up and mould society. Thus, ‘Freedom from’, although generally a more society-driven freedom, focusing on how we interact with each other, can also link to individual freedom as it protects an individual. Such a point is clear from the fact that the individual’s data security was protected, their ‘Freedom from’ maintained, and not limited through the implementation of Part 3 of the Digital Economy Bill. Thus, the two freedoms interact, and not in a manner that is always opposed; however, sometimes they can produce friction. It is the task of the lawgiver to find the balance between them, where there is no clear-cut line as to what is acceptable or not. This is the power that totalitarian governments abuse when slowly introducing extremes of control with the justification of ‘safety’ and ‘Freedom from’. Changes are made at such a slow pace that the populace does not see the extremity of events, cannot seem to perceive it the same as if the facts were presented to them in a more balanced context. However, it is not only totalitarian governments who can transgress the line and neglect ‘Freedom to’ but simply anyone who is so focused on ‘Freedom from’ that they forget themselves. This is what I see happening in the UK with one very particular amendment.
Amendment 204
The Online Safety Bill, under final stages of review in the House of Lords at the moment, has an amendment that has a disturbing resemblance to the novel that unnerved us so much and is referenced for its totalitarian style surveillance ever since its publication in 1948. ‘1984’ depicts a government that monitors its people to a frightening extent. Although Amendment 204 of the Online Safety Bill is not to the extent of ‘Big Brother’; we have no ‘telescreens’ to haunt us, though the amendment, at its core, is something fundamental to the basis of ‘1984’; government surveillance. Amendment 204 was proposed by Lord Clement-Jones. His proposal concerned Clause 110, page 94, line 5 and 9, with the notion to leave out the words ‘or privately’. The member’s explanatory statement for these alterations was as follows: ‘This amendment seeks to probe the implications for privacy and end-to-end encryption of the duty to take down or prevent content communicated privately.’ Thus, the statement highlights that the proposal is an attack on privacy. The Bill does have a clause, in Part 3, Chapter 2, Section 19 that sets out ‘Duties about freedom of expression and privacy’ where it considers protecting ‘users’ right to freedom of expression within the law’ as well as protection for ‘the privacy of users’. However, regardless of what consideration these issues are given, does that mean we should be unfazed by the prospect of what is ultimately a form of government surveillance? While some would assert that if you have nothing to hide, in line with criminality, you have no cause for concern, for others this is a disturbing breach of liberty. A similar occasion that caused outrage was when former CIA agent (who, in 2009 moved over to the NSA), Edward Snowden, revealed in 2013 that the National Security Agency (NSA) had several undercover surveillance programmes that monitored the private technological footprints of ordinary people. One of the main revelations to come from Snowden’s leak of information was an NSA data analysis programme named PRISM, that took data regarding individual users of major internet giants such as Google, Facebook and more. It was reported that this programme was not only used by the NSA but also the Federal Bureau of Investigation and Britain’s Government Communications Headquarters. The documents that Snowden used as evidence for his case showed these tech giants giving the NSA access to information regarding their users. PRISM has since shut down after Snowden’s leak and much discontent. To return to the clause of the Online Safety Bill, surely this is exactly the behaviour that Snowden exposed the NSA for undertaking, except this time it isn’t done in secret.
The Debate
There is no doubt that there are benefits to internet safety and wider safety through surveillance, with paedophilia and cases such as ‘Blue Whale’ (an online game that encouraged young people to commit suicide – coming to national attention in Russia in 2016), more likely to be observed and prevented. Indeed, this reason is used to justify Amendment 204. Surveillance could help prevent crime and terrorism. However, is it too much a compromise of our liberty? Moreover, surely when it comes to crime and terrorism – not in the case of inciting violence online or grooming through technology – there would be new ways found to increase anonymity and avoidance of the law. It may become a lot harder to commit a crime without technology, a prime example being drug county lines running on mobile phones, and therefore crime is reduced. However, where crime is set on being committed and there is an increased level of focus on the possibility of being tracked, further ideas of how to operate without getting caught would spawn. Already people are aware of the implications of leaving a digital trace and with some crimes already there are means that people use to muddy the waters of being traced. Surely this would increase with the stakes of surveillance increasing. Therefore, how much help would it really provide? That is hard to answer when we have only speculation. Is surveillance something we want to dabble in? Perhaps you feel that with modernity it is inevitable that our privacy will be eroded. The technology companies we use already store data on us, hence the targeted marketing we receive on social media, and with increasing technology and AI this will naturally escalate with time. However, end-to-end encryption of private messages means that the technology companies cannot see the content of our messages either. Surely, when already under some scrutiny we do not want to provide more, and potentially more personal, information.
The second issue is: who is the government? The government is made up of political parties that change. It is not stagnant and how it is now will not be how it is in years to come. We don’t know what type of ‘being’ is going to take control of that information in years to come; it could be an extremist party. Should we allow those in control to have power over us, knowledge that can provide leverage for manipulation? We may have checks and balances to the power of the party in control at the moment, to a certain extent; however, we don’t know it will definitely stay that way. If a sinister-intentioned party were to come to power, the damage they could do with access to an extremely pervasive form of surveillance and mass information about the minutiae of people’s lives would be far greater. Imagine if the Nazis had the power of that information. We already know that political factions can use social media to target their campaigns, with the Trump presidential campaign of 2016 relying heavily on Twitter. Consider how much worse that could be with tech companies having more information about us, through the messages we send; even more clear and direct.
Conclusion
This is a debate that allows principles and practicality to converge. The issue here questions what is the right balance between the two types of freedom: Individual Liberty and Social Freedom to live in a safer world. However, when considering the wider context of the modern world and developments in AI and technology, some may come to question whether railing against an Amendment such as that in the Online Safety Bill is too little too late, and surveillance is something we should accept. I hope not. The Amendment is clearly a very different type of surveillance, not that which is naturally spawned from AI and technological developments. Surely, already with concerns about privacy we should be appreciating every ounce of it we have left.