Snoopers Charter – Index Interview: The salami slicing of free speech
Conservative MP Dominic Raab talks to Mike Harris about civil liberties, free speech and how he “wouldn’t lose any sleep” if the UK’s communications data bill were canned
Offence and self-censorship
Raab is clear he thinks the Crown Prosecution Service (CPS) has over-prosecuted free speech cases in the past citing the Paul Chambers Twitter joke trial case: “Aside from the free speech issue, what a waste of money!”
Paul Chambers, who was found guilty of sending a menacing tweet, last July won his high court challenge against his conviction. He had tweeted in frustration when he discovered that Robin Hood airport in South Yorkshire was closed because of snow. Eager to see his girlfriend, he sent out a tweet on the publicly accessible site declaring: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”
On Chambers he adds the firm he worked for was “gutless” for firing him during the CPS prosecution.
On statutory regulation versus self-regulation, Raab is clear: “I am a free speech guy. I will be very reticent to move to a system that ends up having a chilling effect on free speech or media debate. There’s a real risk that we get proposals that do the latter, but don’t address the former. But let’s see.”
Communications Data Bill: Fight against criminals or a snooper’s charter?
One of the themes of Raab’s book The Assault on Liberty is decent people entering politics with the right intentions and being got at by the machine of government. In the book, Raab names former National Council for Civil Liberties General Secretary Patricia Hewitt and legal advisor Harriet Harman as two advocates of civil liberties that went on to embrace illiberal laws.
The parallel with the current Conservative-Liberal Democrat government is obvious with the coalition’s earlier commitment to “end the storage of internet and email records without good reason”, followed promptly by the government’s publication of the Communications Data Bill that will do exactly the opposite.
Raab adds: “I think there’s a few things at play. First, your view when faced by briefings on national security will change even if it’s only a shift … The second thing is something we’ve got to get much better at: pushing back at some of the lazy assumptions we’re fed by the security establishment. I mean, you think of the arguments made in favour of 90 days and 42 days detention! I haven’t heard anyone since suggest there is a serious national security issue or counter-terrorism issue.”
On 12 October 2008, the Government finally dropped the controversial plans to allow terror suspects to be held for 42 days without charge after they were rejected by the House of Lords.
“You think of the scaremongering over ID cards and the assertions made by people in the police and plenty in the security establishment … on the risks of not going down that line of regulation, and does anyone seriously think at the end of that debate that ID cards would have made us safer?”
“Ministers have got to be a lot more demanding of the official advice they get and much more probing of it,” he adds.
In some rare Tory praise for their Liberal Democrat partners he adds:
I think coalition probably helps that, but I would say that the new surveillance proposals are exactly the sort that need to be looked at, scrutinised and tested both on the privacy side, the technological viability side, but also some of the wild assertions about the law enforcement value that have been made. I’m certainly not convinced that these proposals are worth the sacrifice of privacy in terms of the law enforcement bang for your buck you’re going to get.
In opposition, the Conservatives said the controversial Regulation of Investigatory Powers Act 2000 (RIPA) went too far, but the Data Communications Bill will go even further. Raab retorts:
In fairness, there have been new checks placed on town hall snooping. Nonetheless, I think if we allowed the latest set of proposals to come through with plans for mass surveillance of every phone call, internet based message, email that we make, Skype and all the rest along with very sobering proposals for data mining and deep packet inspection … I think that would mark a ‘step change’ in the relationship between the citizen and the state. I would be very nervous about crossing that Rubicon unless I am absolutely convinced that it is imperative on the highest security and public safety grounds, and I don’t think that case has yet been made.
He draws a distinction between the Bill and RIPA, acknowledging that it does go further:
The safeguard in (RIPA) is the human manpower needed to sift through all of our personal data is ludicrously high and therefore, whilst there is a principled objection, the reality is, even with 10,000 requests a week for personal data, the impact on privacy is fairly confined. But if you add on the proposals in part two of the Data Communications Act for filtering arrangements and data mining and attempt to draw inference and patterns and trends from lots of our personal information and make judgements or assumptions or pre-judgements, about every innocent citizen as well as the guilty ones, I think that is a real sobering development well beyond qualitatively anything we’ve seen until this point.
I also think there are ways in which the Bill can be salvaged. [But] I wouldn’t lose any sleep if it was canned. We could do much more with the estimated £2 billion worth of money.
He hedges his bet: “If we are going to stick with it, it needs to be focused on terrorism and serious crime, limit very strictly who can have access to the data and I think we need a judicial warrantry system rather than these implicit plans for data mining and other surreptitious techniques which effectively reverse the normal presumption of innocence that we have in Britain.”
There has been a democratic urge towards measures that promote personal safety above individual liberty. In The Assault On Liberty, Raab points to the proliferation of closed-circuit television (CCTV), but it was often democratically elected councillors who introduced security cameras in response to public fears. As Index has pointed out, as the cost of surveillance equipment is dropping more governments are considering implementing it.
Raab questions the cost estimates provided by governments for such projects: “I remember with ID cards the original estimate of how much they would cost ballooned when it was looked at independently. I think the best thing that can be said about this is that the public have become increasingly sceptical the more they have seen fairly draconian proposals that haven’t on due scrutiny, whether parliamentary scrutiny or public scrutiny or seeing the operational practice, haven’t actually delivered on their law enforcement goals.”
He’s also optimistic that the public is increasingly sceptical over politicians’ claims over national security:
“There has certainly been a huge amount of populist pandering and scaremongering in the wake of 7/7 and 9/11. I think the public have wised up to this and I also think they listen to the point of principle and the arguments against in perhaps a way they didn’t in the early 2000s.”
It’s this public scepticism and the longer parliamentary scrutiny the Bill will receive that he believes will neuter the most illiberal measures in the draft Communications Data Bill, says Raab.
“There’s a long time frame because of the pre-legislative scrutiny,” he adds, “and then we’ll have the Bill scrutiny … and I think that it will be a similar debate to the one we saw over ID cards which is there will be analysis over the point of principle and on privacy, and then there will be all the technical geeks will come out and scrutinise very carefully the viability. Then there will be quite a few independently minded law enforcement people like former ACPO president Sir Chris Fox saying this will not deal with top-end criminals and terrorists because they are smart enough to avoid this very obvious route of surveillance whether it’s with pay as you go phones, proxy servers, and all the rest.”
Open debate is key to scaling back the Bill. “Time allows for scrutiny which tends to puncture the myths and once the public turn against proposals like this there is no getting them back though actually I think in the long run we end up in the right place.”