Guest post by Mark Sallos, Centre for Business in Society

Socio-political turmoil, a divided media landscape, and the emergence of seemingly unprecedented threats, if not in nature, at least in affective impact. These are some of the forces that shape the context under which the Parliamentary approval of the Investigatory Powers Bill (Gallagher 2016) took place. This new piece of legislation aims to legitimise previously covert wide scale data collection efforts while providing new means for future electronic surveillance programmes. The bill passed with relative ease, in spite of its varied critics (UK Parliament 2016) who have highlighted its potential for abuse, especially concerning privacy, as well as the dangerous nature of the precedent being set in what can be perceived as an erosion of civil liberties.

There are several aspects which, I would argue, should be taken into consideration when examining the personal significance and the rationalisation of either supporting or opposing potentially invasive security measures in relation to privacy. Firstly, the extent of existing, or ‘baseline’, privacy is generally poorly understood, while personal positions on the topic are often a by-product of the wider ideological — i.e. political — identity. It should be uncontroversial to assume that most individuals spend little time explicitly envisioning a normative profile of acceptable electronic privacy, as indicated by the ubiquity of third-party data collection empowered through disregarded Terms of Use and general lack of awareness. So, without a clear view concerning existing, and aspirational standards of privacy, the extent of any marginal loss is difficult to envision, especially in affective terms, given the inherently abstract nature of the concept, as exemplified in a non-scientific manner within the context of the U.S by John Oliver (Zakrzewski 2015, Sanders 2015).

This is not to say that the general public does not care about privacy, especially symbolically, as a value of independence and freedom. However, treating privacy solely as a proxy issue for, albeit important, debates on values and politics can be impractical and thus fail to lead to nuanced approaches which adequately illustrate the conflicting forces and interests at play. This, in turn, can yield distorted narratives and oversimplifications. Does security have to come at the expense of privacy? To what extent? And, to what effect? Once an individual’s position has been established, there are numerous tools and techniques available which ensure additional, if imperfect, anonymity from both corporate and governmental surveillance.

Secondly, legislative efforts to further empower security agencies, at the potential expense of citizen privacy are by no means novel. An overview of such efforts is presented by Abelson et al. (2015), who highlight the consistent stance taken by many policy makers in both the U.S and the U.K concerning the need for law enforcement to benefit from access to potentially relevant data, in an attempt to mitigate the use of technology as an enabler of malicious activity. As security efforts are adversarial by nature, expanding the scope of surveillance is presented by its advocates as a platform for preventing disadvantageous operational asymmetries: if ‘bad-guys’ are not constrained by the same controls, the ‘good-guys’ can be at a disadvantage. Nonetheless, leaks indicate that mass surveillance efforts are a widespread occurrence internationally, even without explicit legislative support and oversight, which conveys a sense of inevitability concerning a redefinition of privacy. An amassing body of evidence, which includes the terms of the Investigatory Powers Bill, indicates a vision of national and international security which is simultaneously enabled and hindered by technology.

A third point which emerges from the available information concerning governmental surveillance programmes addresses their efficacy, or lack thereof. Even if accepting privacy and security as a dichotomy, it is difficult to perceive the scope of the trade-off. Both the potential for abuse, and the existence of precedents, are clear. As a result of leaks and institutional attempts at increasing transparency, instances of analyst abuse of the surveillance infrastructure have been documented (Robertson 2013a), in addition to the intentional misrepresentation and misuse of programmes (Robertson 2013b).

In addition, an argument can be made that overt online surveillance places an evolutionary pressure on premeditated criminal activity. Terrorist bodies train their recruits on the use of encryption and basic electronic monitoring circumvention techniques, while criminals have been documented to use dispensable ‘dumb phones’ which can be harder to track and tend to provide less insights for analysts. Thus, unlike the general public, threat actors are constrained to improve their awareness and repertoire of capabilities.

Finally, and, in my view, most importantly, lies the issue of the ineffective communication concerning the bill, which implicitly signals incentive misalignments between the public and security institutions. Bowles’ (2016) work shows how, absent appropriate framing, regulatory efforts can have unintended and undesirable consequences by tacitly shaping the actors’ perception of relationships, exchanges, and motivations. Going back to the first paragraph, it is important to note the divisiveness which characterises most of the current pressing issues. Absent a clearly communicated narrative which demonstrates why mass surveillance capabilities are simultaneously necessary for defending society against its threats, and non-detrimental for everyday life, the adversarial nature of the security narrative can leak into the individual perception of the issue.

So, to sum up, electronic surveillance efforts are by no means novel, and it is hard to gauge how they will be affected by the Investigatory Powers Bill. But it is safe to assume that they are likely to take an ever more central role in defence policy. The inherently opaque nature of the ways in which the newly acquired/validated powers will be used limits an objective interpretation on how the bill will change everyday life for the general public. But the absence of appropriate framing with the aim to establish the shared objective of a well-functioning, resilient society, makes the redefinition of normative privacy a potentially divisive issue which widens the gap of trust between the various ideological and structural factions which underpin present societal order.

Mark Sallos is a Doctoral Candidate at the Centre for Business in Society, investigating the theoretical foundation of Adaptive Cyber Risk Management under the supervision of Alexeis Garcia-Perez and Esin Yoruk.

References

Abelson, H., Anderson, R., Steven, M.B., Benaloh, J., Blaze, M., Diffie, W., Gilmore, J., Green, M., Neumann, P.G., Landau, S., Rivest, R.L., Schiller, J.I., Schneier, B., Specter, M., and Weitzner, D.J. (2015) Keys Under Doormats: Mandating Insecurity by Requiring Government Access to All Data and Communications [online] available from < https://dspace.mit.edu/bitstream/handle/1721.1/97690/MIT-CSAIL-TR-2015-026.pdf> [15 January 2017]

Bowles, S. (2016) The Moral Economy: Why Good Incentives Are No Substitute for Good Citizens. New Haven and London: Yale University Press

Gallagher, R. (2016) U.K Parliament Approves Unprecedented New Hacking and Surveillance Powers [online] available from

<https://theintercept.com/2016/11/22/ipbill-uk-surveillance-snowden-parliament-approved/> [15 January 2017]

Robertson, A. (2013a) The NSA reveals how many analysts abused its database to spy on their lovers [online] available from

<http://www.theverge.com/2013/9/26/4774960/nsa-reveals-intentional-abuse-of-surveillance-database> [15 January 2017]

Robertson, A. (2013b) The NSA collected thousands of emails from US citizens while misrepresenting its program [online] available from

<http://www.theverge.com/2013/8/21/4645096/the-nsa-collected-thousands-of-emails-from-us-citizens> [15 January 2017]

Sanders, K. (2015) Fact-checking John Oliver’s interview with Edward Snowden about NSA surveillance [online] available from

<http://www.politifact.com/punditfact/statements/2015/apr/09/edward-snowden/fact-checking-john-olivers-interview-edward-snowde/> [15 January 2017]

UK Parliament (2016) Investigatory Powers Bill: Written evidence submitted by Apple Inc, Facebook Inc, Google Inc, Microsoft Corp, Twitter Inc and Yahoo Inc (IBP21) [online] available from

<https://www.publications.parliament.uk/pa/cm201516/cmpublic/investigatorypowers/Memo/IPB21.htm> [15 January 2017]

Zakrzewski, C. (2015) John Oliver Just Changed the Surveillance Reform Debate [online] available from <https://techcrunch.com/2015/04/06/john-oliver-just-changed-the-surveillance-reform-debate/> [15 January 2017]

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