net.wars: Data retainers unite! You have nothing to lose but your freedoms.

by Wendy M Grossman | posted on 09 May 2003

The weariness with which I approach yet again the subject of data retention tells me something about how bad policies get passed. The people who want them just keep plugging away until everyone's too exhausted to fight any more.

Wendy M Grossman

Even so, Privacy International and the Foundation for Information Policy Research are soldiering on. There are in fact two relevant consultations going on right now under the aegis of the Home Office.

First is the rules on access to data under the Regulation of Investigatory Powers Act 2000. The other is on the subject of voluntary retention of communications data under the Anti-terrorism, Crime and Security Act 2001. Both end June 3. Those links include the address to which comments may be submitted. And, of course, you can always also fax your comments to your MP.

FIPR and PI are holding the only public meeting on the subject in the entire consultation period, which began in mid-March. It's next week, on the afternoon of Wednesday, May 14, and although admission is free the organisers ask you to register in advance because space is limited. Please go. Say I sent you.

The proposed rules on access to data – were cautiously welcomed by FIPR when the paper was launched, because they at least seemed more reasonable than previous attempts. The other half of the consultation, though, covering data retention under ATCS, is alarming. The implication is that if a voluntary code can't be agreed – and ISPs are adamantly opposed to the government's scheme on the basis of costs – a mandatory one will be put in its place.

The Information Commissioner, who objected to the voluntary code on legal grounds, will be powerless to object to a mandatory code. We can't even take much comfort in the thought that many provisions in the ATCS itself expire soon. After all, it's a simple matter for the government to argue that the powers and relevant codes should be extended long enough to find out if they work.

As Congressman Jerry Nadler told the CFP in early April, governments never like to give back powers once they have them. "We need more time to let the system bed down," I can imagine Blunkett saying. It's like that scheme one of the skeptics had for quack therapies: pick something that's completely harmless, and whether the patient gets better, stays the same, or gets worse, the answer is always more of the remedy. Say it in surveillance powers: if there are no more attacks the system is successful in deterring them. If there is an attack, there would have been even more and even worse if the system hadn't been in place. Either way, the answer is more surveillance. See?

Since I've already written about the proposals themselves and about why we should prefer data preservation over data retention in previous columns, I'll skip rehashing the same arguments in detail. But I will note that the Scrambling for Safety meetings – this is the sixth – are a good day out, especially when the government sends raw meat for the audience to tear into. Although: I hope they beef up their offering this time. At the last meeting, which covered the proposals for national ID (excuse me, "entitlement") cards, they sent in an aging baroness who said primly that she couldn't see why anyone would object. Now, see here: she's no fun. She'd fall right over.

Ross Anderson
We are at a crossroads. Both the US and the UK governments - like many others worldwide - are pushing policies that increase surveillance and decrease privacy, civil liberties, and freedoms. The reasons, however, seem rather different. Blair's government seems to be "merely" acting on the deepest long-held desires of the British civil service. As Ross Anderson showed at the last Scrambling for Safety meeting, for example, proposals for national ID cards have resurfaced with monotonous regularity every year or two, no matter who was in power.

Bush Jr – I'd continue calling him "Shrub" but a Californian recently put it to me with great emphasis that "That is an insult to plants everywhere" – on the other hand seems to have simply declared war on the American people (except for his friends) – as well as anyone who isn't American – the day he took office. Although he, too, is enacting policies the security services would love to have gotten through much sooner, with Dubya you have much more of a sense that he likes these policies for themselves. I don't know: maybe this is how politicians take revenge for the amount of media scrutiny they find themselves under. If they have little privacy, why should we have more?

In any event, this is clearly one of those interesting times in which democracy needs even more struggle to protect it than usual. Data retention, the increasing number of surveillance cameras, increases in electronic transactions of all kinds, increasing powers to surveill and retain the results, electronic voting, the copyright wars. If we want to emerge from the other end of these new technologies as democratic societies, we need urgently to figure out how to do it.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).