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A reminder to Conservatives of why they should not abridge the right to keep electronic communications private

Boris Johnson’s aides say they’ll ignore a vote ordering them to hand over WhatsApps and Emails

Buzzfeed have been quick; the vote in Parliament to which the story refers took place only a few minutes ago. It may all be theatre: according to the Guardian‘s Andrew Sparrow, the government will probably say it does not have the legal power to comply with the vote even if it wanted to. It could reasonably cite the European Court of Human Rights (and before you ask, that court is not part of the European Union, though as Paul Marks is fond of observing, the two are intertwined).

What a farrago. I did consider posting this in Samizdata’s sister blog, The Great Realignment, but although this vote is part of yet another Parliamentary scheme to stop Brexit happening, its implications for civil liberties are what interest me most. In the era of the Twitter flash mob, it is within the realms of possibility that even obscure folk like you and me could be the next targets of public rage, and the Right Honourable Members are not averse to putting themselves at the head of the crowd. How would you like it if a fishing expedition by a bare majority of MPs could force you to turn over your emails and WhatsApp messages?

27 comments to A reminder to Conservatives of why they should not abridge the right to keep electronic communications private

  • Fraser Orr

    I just want to say a thank you to Natalie for the word “farrago”, which I have never encountered before, and which has such excellent utility and an almost onomatopoeic quality, that I intend to grossly overuse it in future. 🙂

  • It’s not a fishing expedition though, is it? It is attempting to gain intelligence on Dominic Cummings plan for what they will do between now and October 31st to resist parliament from the Great Betrayal. All information gathered will be fed directly to the EU for whom these maggots are “useful idiots” (in Stalinist vernacular).

    The whole thing does ride a coach and horses through the individual privacy of those in the WhatsApp group, who I assume include Spads, MP’s and others, so I would imagine that there is a reasonable legal defence, plus, by the time it gets through the government machine, legal system and appeals will be past October 31st anyway.

  • I agree with John Galt that it may be an information gathering exercise: after mocking Boris, Dominic and all leavers as idiots in public, remoaners may yet worry in private what cunning plan is being prepared against them. If so, this is a pity – I would much prefer them to spend their 5 week break joking about how thick we all are and how they have won and can now relax and savour it.

    I am therefore in hopes (in a sense 🙂 ) that it is a lawfare fishing expedition and they expect to find not evidence of intelligent planning but just something they can spin into a lawfare case.

    The comedy of Boris being able to say that ‘European’ law forbids his complying will, I trust, be exploited. 🙂 Natalie is right that the interaction of the European court of human wrongs with the European court of injustice makes it a really complicated matter to say whether it is or is not EU law as such- but that merely gives us the opportunity for another “£350 million on the side of a bus” farrago where the elites shout that it’s a lie and the voters think “No, it’s not”.

    Meanwhile I hope the Tory party, like Trump, is receiving many useful lessons about how supporting liberty and originalism can defend them from the PC elite.

  • Nullius in Verba

    It will be interesting to see if becoming the target of the intrusion themselves persuades our Parliamentarians that there is some merit in absolute protections to privacy. I kinda doubt it, though. More likely, they’ll declare themselves an exception to the rules the rest of us are subject to.

    If it’s going to be an issue, there are technical ways to counter this sort of thing. The question is, though, do we care enough to use them? Most people are well aware of the authorities intercepting their emails and posts. They don’t even need to go to you to demand your emails – if GCHQ haven’t trawled it already, they can go to the ISPs. But how many people routinely use encryption, anonymisers, TOR, steganography, and so on? Mostly, the only people who do so are already on the authorities’ hit list – dissidents, spies, whistle-blowers, criminals, terrorists, battered spouses, runaways, and those in hiding from elite kung fu assassins working for the men-in-black division of the Bavarian Illuminati. (And an handful of cryto-geeks who do it because it sounds cool.) But most people shrug, and don’t care. How many people here care that their seditious and politically incorrect posts here are traceable, and quite possibly already on the authorities’ radar? How many of us have wondered whether when some future totalitarianism outlaws certain opinions for serious, that what we have said here will come back to haunt us? And yet we carry on.

    It’s a standard lesson every revolutionary learns – secure communication for your plotting is essential. Ask Hillary Clinton. She might have done it incompetently and got caught, but at least she knew enough to try to keep her emails out of the government’s hands. There’s a lesson there for every political plotter.

    It will also be interesting to see if Boris’s minions were smart enough, too. One would like to think so, but judging by the way everything around the cabinet seems to be leaking like a sieve, I don’t think so. Maybe they’ll learn.

    And it will be ‘interesting’ (probably in a much less entertaining way) to see if we all do.

  • Shlomo Maistre

    Thanks for this post Natalie. I have just found out about the Great Realignment site – I seem to have missed Perry’s Samizdata post introducing it some months ago.

    So it seems like it’s one site for politics and one site for libertarianism – there’s a lesson here, somewhere.

    Tonight I’ll raise a glass to the Samizdata that spoke its name!

  • We are pecking around a principle which is worth discussing, and that is, what constitutes public discourse?

    Any social media in which your utterances are broadcast to any who care to receive them, are to my mind, as if you stood on a soap box in a public square and were holding forth. Villainous actors who wish to take down what you say in order to use it against you later, are entitled to do so, to my mind.

    However, what if you are in a men’s club, speaking in the locker room with a sympathetic audience, and the help reports your communications? Is that public discourse? Can government compel a social media forum who records your conversation in an exclusive corner to give up that data?

    Finally, when you go to the trouble to encrypt your communications so that only the intended receiver can understand the message, what are the implications of state (and other) surveillance?

  • The Alpaca Herder

    If I weren’t a working civil servant on my side of the pond who needed his paycheck to support his elderly parents, I’d be wholeheartedly available to help provide chaos to help ensure freedom from the EUSSR. There are ways around the the Logan Act if need be.

  • Sam Duncan

    “Natalie is right that the interaction of the European court of human wrongs with the European court of injustice makes it a really complicated matter to say whether it is or is not EU law as such”

    It would be highly amusing if the government could cite the GDPR in defence.

  • Dr Evil

    Well, the second word would be “Off” and I would not comply. My e mails and texts are very dull but that’s not the point.

  • Andrew Duffin

    If there’s anything in Boris and his teams’ emails or WhatsApps that is of any use to the enemy, then they’re bigger fools than I thought.

    Such things are, I hope, never written down anywhere (least of all in any internet-exchanged format) and discussed only during walks in the park away from all snoopers.

    So yes, fight it as long as possible, then hand over the messages – which will turn out to be boring and inconsequential. I hope.

  • Hopefully, any information that is shared will be selected “disinformation” deliberately designed to mislead. Dominic being Dominic after all…

  • Mr Ecks

    Mr Kilmartin–far from being relaxed the remainiacs are pissing their kegs with fear.

    As per Guido the SCS scum have put forward a list of 100% remainiac creeps to replace Carney–and a sideshow is where he truly belongs as the Freak–at the BOE. They are desperate to ensure another Project Fear spewing liar gets the job.

    And they are already pushing for CreamPIE Hagbag Harman to replace Bercow. They see their hold on power slipping away and the shite is flowing like water down their bandy little legs.

    Altho’ NONE of this is grounds for sleeping on the job. You should NEVER no class your enemies until they are very very dead-metaphorically speaking —of course.

  • neonsnake

    and the help reports your communications? Is that public discourse?

    Grudgingly, I’m going to say “yes”. I wouldn’t necessarily want to penalise whistleblowers, although I think they should be prepared to face whatever consequences come their way.

    Can government compel a social media forum who records your conversation in an exclusive corner to give up that data?

    Can they? Yes. Should they be able to? No. Absolutely not.

    Finally, when you go to the trouble to encrypt your communications so that only the intended receiver can understand the message, what are the implications of state (and other) surveillance?

    The implications are enormous. As far as I’m concerned, autonomy is an important part of liberty, and autonomy is next to impossible without a reasonable assumption of privacy.

    I long ago gave up any illusion that I’m not trackable, if someone was motivated to find out who I am. If nothing else, using anonymous-seeming usernames and burner accounts (plus Tor, VPNs, etc etc) is only a padlock. My pattern of speech makes me traceable.

    We all trade privacy for convenience, in today’s world. It’s just a matter of awareness and being conscious of what you’re sharing, and with whom.

    I did a photo series on hostile architecture some years back. Stand anywhere in the City of London, do a 360, and count the cameras, or the signs saying there are cameras. Because it’s not important whether Big Brother is always watching – just that he could be.

    I was only an hour or so into my day when an enterprising Security Guard decided that I wasn’t allowed to use my camera to take a photo of his camera. He was wrong, legally, since I was standing on public grounds, and he wasn’t really prepared for someone to grin at him and tell him to do one because I know my rights, but still.

    And yes, think about the implications of that law. With a decent telephoto lens, as long as someone is on public grounds, they can take photographs of private grounds, including through your window. There’s rules around publication without signoff for commercial gain, of course…but that might not make you feel entirely comfortable. Invasion of privacy? Or freedom?

    (Personally, I won’t publish, sell, or post in a public forum ANY photo with a recognisable face, unless I’ve had a proper release form signed)

    Everything you do leaves a little ripple. Every card transaction. Monzo knows what I’m buying and where. My number plate is tracked. Google knows exactly where I’ve been.

    Be in the right place, in the right time, with the right weather, in Argentina, and AccuWeather uses one of my photos as a background (because I was stupid enough to tick or, maybe not untick, the wrong box on Flickr)

    Google knows my taste in music and what I watch on youtube. Fitbit knows how healthy I am. I’m getting a lot of ads for camping stuff, on all my devices. Other companies know my jogging routes. Evernote presumably knows my favourite recipes by how often I pull them up.

    Philips (and by extension Google and IFTTT) can, if they desire, work out my routine. They know when I wake up, and sync my wearables, and turn the lights on, and boil the fricking kettle.

    Scared yet?

  • Mr Ecks (September 10, 2019 at 6:09 pm), my hope that our enemies are overconfident is a hope, not a certainty. (I expand on that on the other site.) However I feel that assuming one’s enemies are terrified can be as much a way of undervaluing the danger they pose as assuming they are complacent. So I agree with your last sentence – no sleeping on the job.

    Neonsnake, you can achieve a certain amount by just turning things off, and saving things you look at so you do not revisit – could help hide your favourite recipe at least. 🙂 (And more if you do your own encryption, but I appreciate that may be hard for most, not least because the powers-that-be do what they can to discourage not using the platform encryption.) However I take your point about every card transaction. I do not see how the card companies knowledge of you could ever be taken out of the loop, and the use of cash is diminishing in our society. And of course you are right about speech and typing patterns. (If I ever wrote a piece under an alias, surely regulars here would notice some quirks and think, “That sounds awfully like Niall Kilmartin”.)

  • Mr Ecks

    Mr Kilmartin–I agree that their fear does not make them less dangerous. But I have no issue pointing out that it is clearly there–otherwise–as you point out–if it is all stitched up as they smirk–WHY do they care who said what to whom?

  • Gavin Longmuir

    What is so great about privacy? Anyway, as neonsnake catalogs so convincingly above, we don’t have privacy. That is especially true in a place like the UK with more security cameras per capita than Communist China — there are cameras everywhere except in the loo, and I am not even too sure whether that applies in public toilets. What is the point of hiding behind pseudonyms on-line? The people who matter can see right through them. There was a time when homosexuals, lesbians, bestialists, etc would have liked to keep their proclivities out of the public domain — but these days, those kinds of things are resume-enhancers. You can’t even get elected Prime Minister these days unless you have a not-so-secret bit on the side.

    I understand that many young people these days have no interest in privacy — they simply (and probably accurately) assume there is none. And realistically, should we encourage people to say things in private that they are not prepared to say in public? The only people who really need privacy, their own servers, etc are people like Hillary Clinton — where the need for privacy effectively becomes an admission of guilt.

  • What is so great about privacy? (Gavin Longmuir, September 10, 2019 at 8:24 pm)

    The fact that totalitarians always long to abolish it – and say so. “The abolition of the private sphere of life” was a declared aim of Russia’s communist regime, while under the nazis

    In Germany today, the only person who is a private individual is someone who is asleep. [Robert Ley, mid-30s, quoted from memory]

    (Of course, in the 21st century, Alexa is recording words you mumble in your sleep – if you let it.)

    I don’t think privacy is a lost cause any more than free speech. Many things protect us, not least that our rulers (both in government and in the PC-woke-mob) are innately incompetent to use even the information they could in theory possess.

  • CaptDMO

    Sounds….complicated.
    Perhaps I can help simplify the issue
    “Three May Keep a Secret if Two are Dead”-Benjamin Franklin.

  • Gavin Longmuir

    Niall K: “Many things protect us, not least that our rulers (both in government and in the PC-woke-mob) are innately incompetent to use even the information they could in theory possess.”

    That gets to the heart of the matter. The question is not whether the solons in the Palace of Westminster can find out that Niall Kilmartin is a closet fox-hunting supporter, the question is whether those Parliamentarians are able to use that information to make Niall’s life miserable. Provided we have Limited Government, with very tight restrictions on what the generally unsavory individuals attracted to government are permitted to do, then privacy becomes much less relevant.

    As for the rest, if I may put words into our friend Neonsnake’s mouth, what we need is courtesy to each other, if not respect. As long as people are not infringing on others, live & let live. Then there would be no need for MAGA to be the Belief That Dare Not Speak Its Name.

    Privacy is a distraction from the real issues.

  • Nullius in Verba

    “However I take your point about every card transaction. I do not see how the card companies knowledge of you could ever be taken out of the loop, and the use of cash is diminishing in our society.”

    I can think of a way. However, the problem is not really technical, but legal. The authorities don’t like such methods because it makes tax evasion and money laundering easy. And if payments are anonymous and untraceable, they also become unenforceable. How can you go to court and get a refund for non-delivery if there’s no way to figure out who the money actually went to, let alone prove it? You need at least the courts to have access, if you want to use the machinery of law to enforce contracts. But if you’re not bothered about that, then there are ways to implement anonymous and untraceable electronic cash.

    Just as with real cash, there are still ways for a sufficiently determined and well-resourced adversary to get round it by other more indirect means means. But that’s nothing new. Paper money has serial numbers, and even coins can be traced by scanning the unique pattern of microscopic scratches on their surface. They can watch you handing it over. Not to mention fingerprints and DNA on the cash… It depends how paranoid you want to get.

  • neonsnake

    What is so great about privacy?

    I’m pretty fond of it as a concept.

    If you’re interested in autonomy, as well as liberty, then privacy becomes an important notion, since it is very hard indeed to be autonomous while under surveillance or the threat thereof (there’s a good book in that concept, I reckon, if I were a better writer. I’m surprised no-one’s ever written one).

    I completely don’t buy the “if you have nothing to hide, then you have nothing to fear” argument, since it misses the point – that’s not why I want privacy – and also, just because I have nothing to hide now, doesn’t mean that I might not in the future. Keeping a wary eye on both our majority parties…I don’t have absolute 100% faith that I won’t ever become a person of interest for one viewpoint or activity, or another.

    One of the (many) reasons, but less discussed, I think privacy is important, in today’s “cancel-culture”-happy society, is that it preserves the right to change one’s mind.

    Personally, I hold very different views to the 20 year old me. I held the right to discuss those views all those years ago, on the internet and elsewhere, in both public and private forums, and discuss them I did. I’m not ashamed of them, but they don’t represent the “me” of today, and that would hold true for lots of people.

    Much of this can, of course, be managed, depending on how motivated you are. I’m very careful with how I use technology (and I love technology and smart home products, and automation, and all the stuff that 15 year old Cyberpunk-fan me expected to have in the future), and take appropriate measures. I’m not overly paranoid, but I’m careful enough about what accounts I use, what I say, and so on. I’m comfortable with what I share, with a careful eye on it. There’s enough of a community of like-minded people that keep an eye on that kind of stuff.

    Where I get very wary, is the surveillance that I don’t know about, especially by the government. I got very incensed by the post-2001 erosion of privacy, even more so by Teresa’s Snoopers’ Charter.

    I feel about erosion of privacy the same way as Niall feels about Political Correctness 😉

    I am appalled at Parliament demanding private conversation is turned over, whether it proves that Boris pulling a fast one or not.

  • bobby b

    “Everything you do leaves a little ripple. Every card transaction. Monzo knows what I’m buying and where.”

    When I want to pick up a big box of ammunition – for multiple people in a match, say – being the paranoid person that I am, I run over to the Mall of America Customer Service booth, and pay $500 cash for a gift-certificate Visa card. No name. Then I run over to the sporting goods store and use that card for my purchase.

    It’s not paranoia when they really are out to get you. 😎

  • neonsnake

    It’s not paranoia when they really are out to get you.

    “Just because you’re paranoid, don’t mean they’re not after you.” K. Cobain.

    Seems like perfectly sensible practice to me, brother.

    There’s an amount of wisdom in “acting as if”, and making sure that you can, if it comes to it, survive when “as if” becomes necessary.

  • Gavin Longmuir

    neonsnake: “Where I get very wary, is the surveillance that I don’t know about, especially by the government.”

    Fair enough. But what you are really concerned about is not that the human beings in “government” know what you have bought, or where you have been, or what you have said. Your fundamental concern is that the little bastards are going to act on that knowledge, in ways that are deleterious to your health or happiness. If we have proper Limited Government where the sniveling little punters in the bowels of some government bureaucracy do not have the power to act on that information, there is no need to worry.

    It does not matter if “government” (human beings exercising authority over others) is omniscient, provided that it is very very far from being omnipotent.

  • Julie near Chicago

    I’m not sure about that, Gavin. It may be that concerns for privacy are a product of culture, and going by my armchair travellings about the globe they may differ greatly according to the culture.

    But that doesn’t prove to me that some cultures have no regard for privacy. I’m inclined to think that humans have a need or urge for privacy as part of their human nature, however much they differ in their insistence on this or that possible element of privacy.

    I’ve read that this is also true of some other species.

    In any case, fine. You don’t mind if The Gov watches your behaviors in the most intimate detail as you relieve yourself in your own water closet, or as you engage in whatever act involving sexual pleasure that you choose, even though you’ve given it no permission and you have full, utterly complete faith in its absolute guarantee that nothing the spies discover will ever be used by them to your detriment in any way.

    (Never mind that that is possible only in the land of unicorns, fairies, and assorted unusual but blessed and beautifully angelic other life-forms.)

    So. Do you femmes object to the peeping of Toms? Husbands, fathers, brothers, do you object to the peeping-Toms’ illicit intimate observations of your wives, daughters, sisters? Or of yourself, while you’re immersed in your favorite hobby of cooking sweetbreads en sauce framboise while in the nude?

    Or, what if you, my friend, write me from China that you have just gotten away with doing X although you’re forbidden to do it because you lack the necessary social credits? Do you want everybody and his brother to know about that, even with the Chinese minders having missed it? It really does speak to your character, after all. (Some of us might even cheer you, but others wouldn’t hire you for any money.)

    Suppose, Mr. Whosis, that your next-door neighbour does a thorough patrol of your garbage bin every night to make sure there’s no seditious literature in there that would upset the neighbours, like for instance an old NRA pin. Or a Betsy Ross flag.

    (Focus on the trespass of privacy in this example, not on the possible — but not certain — trespass of property.)

    What, milady (or migentleman, for that matter), if you wear green contacts — they certainly enhance your appearance? Do you really want to argue that you have no right to fake your appearance? (Fraud, and all that.)

    .

    Do you wish to give birth, or to die, with only very selected people, or even none at all, keeping watch?

  • Gavin Longmuir

    Julie: “Suppose, Mr. Whosis, that your next-door neighbour does a thorough patrol of your garbage bin every night to make sure there’s no seditious literature in there that would upset the neighbours”

    My neighbors tend to have four legs and go “Moo”. 🙂 But assuming that a human wanted to dig through my garbage, my first thought would be — His life is even more pathetic than mine! The problem would arise if said human could then run down to the nearest government office and denounce me (“J’ accuse!”) for having a subscription to the NRA’s ‘American Rifleman’, and the government could in turn take me away for re-education. The problem is not the loss of privacy — the problem is having a government which has empowered itself to act in a boot-stomping-in-face manner.

    Once we concede that “government” is empowered to intrude into every area of our lives and force us through the threat of violence to comply with their dictates, then privacy is a very poor shield. Conversely, if “government” is explicitly limited to enforcing a very limited set of reasonable laws, then privacy becomes a secondary issue. Then it would not matter who knows I have a subscription to ‘American Rifleman’.

  • Runcie Balspune

    Just “do a Hillary“.

    This is another case of the government being allowed to do what they forbid to their employees.

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