Cindy Cohn is alarmed by the shift towards mass surveillance in the UK government’s “snooper’s charter”
This week the British government unveiled a bill that has a familiar ring to it. The Communications Data Bill would require all Internet Service Providers (ISPs) and mobile phone network providers in Britain to collect and store information on everyone’s internet and phone activity. Essentially, the bill seeks to publicly require in the UK what EFF and many others have long maintained is happening in the US in secret – and what we have been trying to bring to public and judicial review since 2005. Put simply, it appears that both governments want to shift from surveillance of communications and communications records based on individualized suspicion and probable cause to the mass untargeted collection of communications and communications records of ordinary, non-suspect people.
This shift has profound implications for the UK, the US and any country that claims to be committed to rule of law and the protection of fundamental freedoms.
This isn’t the first time that an Executive has seized the general authority to search through the private communications and papers without individualized suspicion. To the contrary, the United States was founded in large part on the rejection of “general warrants” – papers that gave the Executive (then the King) unchecked power to search colonial Americans without cause. The Fourth Amendment was adopted in part to stop these “hated writs” and to make sure that searches of the papers of Americans required a probable cause showing to a court. Indeed, John Adams noted that “the child Independence was born,” when Boston merchants unsuccessfully sued to stop these unchecked powers, then being used by British customs inspectors seeking to stamp out smuggling.
The current warrantless surveillance programs on both sides of the Atlantic return us to the policies of King George III only with a digital boost. In both, our daily digital “papers” — including intimate information such as who we are communicating with, what websites we visit (which of course includes what we’re reading) and our locations as we travel around with our cell phones — are collected and subjected to some sort of datamining. Then we’re apparently supposed to trust that no one in government will ever misuse this information, that the massive amounts of information about us won’t be subject to leak or attack, and that whatever subsequent measures are put into place to government access to it by various government agencies will be sufficient to protect our privacy and ensure due process, fairness and security.
On that score, at least the UK government is willing to discuss the proposal publicly and allow Parliament to vote on it. But this puts the onus on the British people to tell their representatives to soundly reject it. The message to the Executive should be clear: general warrants were a bad idea in 1760, and they are still a bad idea today.
Cindy Cohn is the Legal Director for the Electronic Frontier Foundation (EFF) as well as its General Counsel