Finding the balance: liberty and privacy

Professor Sir David Omand, former Permanent Secretary of the Home Office and Director of GCHQ, describes the challenges that our security services face in the digital age.

In today’s modern democracy we are no longer subject to the rule of a King or Queen, as in the days of Magna Carta. But the 800th anniversary of Magna Carta reminds us of the duty and responsibility our government has to protect us, to secure our rights and to maintain the rule of law. These fundamental rights of freedom and liberty, it can be argued, can be traced all the way back to the original language of Magna Carta.

The new security challenge

Previous generations had to fight our enemies in world wars to keep our freedom. Today, there are new everyday risks, many of which now exist online. Increasingly, the government must focus on reducing the threat from terrorists and criminal gangs, so that we can live our lives freely. The internet and social media offer huge opportunities for economic, social and educational advancement, but only if law enforcement is allowed to police the digital space to make it safe for us to enjoy.

If we want the advantages of the new digital world we must empower the authorities to police it on our behalf. The only way for them to do this, is to allow analysts in specialist agencies to access people’s communications online. We do this through laws that are democratically debated and passed. Like the barons in 1215, in return for our support, the authorities must live up to the promise of Magna Carta, including the right to live in peace and in privacy. However, we cannot demand absolute privacy if that means allowing the activities of terrorists and criminals to go undetected and unpunished.

A 21st-century utopia?

Some people want an internet that is encrypted and anonymous, beyond the view of government. But, like all ungoverned spaces, it will inevitably become a safe haven for those who mean us harm. Here are some examples of when this has happened:
  • The internet is used by terrorists to meet and plan attacks. The nine individuals convicted of plotting to attack the London Stock Exchange and other targets in 2012 used internet forums to arrange meetings and stay in touch.
  • The internet is used for online child exploitation. In Bahrain in 2014, four men were imprisoned for a total of 20 years, following a UK investigation. The men targeted around 250 children, pretending to be young girls online in order to get young boys to send them indecent images.

How does the law work?

In the UK, we have a sound legal framework that allows the police and the intelligence agencies to work together to uncover plots against us, using advanced digital tools. But in the spirit of Magna Carta, the authorities are strictly limited by laws that have been democratically passed:
  • To intercept the content of a message or internet conversation requires a warrant signed by a Secretary of State.
  • A Commissioner (a very senior retired judge) will also examine the lawfulness of the warrants and how they are used. Although digital communications can generate huge levels of ‘metadata’, UK law insists on a full warrant being obtained for anything beyond simple billing information.
  • Lastly, anyone has the right to complain to an independent court if they think they are the subject of unlawful interception.

Protecting our rights

By giving the police and intelligence agencies this authority, we ensure that our privacy is respected in accordance with the European Convention on Civil Rights and our own Human Rights Act. Recent judgments from the independent court confirm that we are not subject to mass surveillance. In a report to Parliament, the Interception Commissioner wrote:

“Public authorities do not misuse their powers to engage in random mass intrusion into the private affairs of law abiding UK citizens. It would be comprehensively unlawful if they did."

At the same time, he confirms these powers are helping the authorities to make progress on our behalf against terrorists and criminals. For example:

  • Investigations using MI5 surveillance, GCHQ interception and other police powers have led to the uncovering and disruption of planned terrorist attacks against the UK.
  • International co-operation between law enforcement and industry has disrupted the command and control network for ‘Shylock’. ‘Shylock’ is computing banking ‘malware’ (malicious software). This ‘malware’ had infected at least 30,000 computers world-wide.

As confirmed by the Commissioner in his report, unless you associate with a potential terrorist, serious criminal or someone who could put UK national security at risk, none of the interception agencies have any interest in examining your emails, phone calls or post and will not do so in a way that could be regarded as significant.

On this anniversary of Magna Carta, we can be satisfied that our rights to security, privacy and freedom of expression are being upheld by our government, police and intelligence agencies.

How safe is our privacy online?

  • Professor Sir David Omand
  • Sir David Omand was the first UK Security and Intelligence Coordinator, responsible to the Prime Minister for the professional health of the intelligence community, national counter-terrorism strategy and “homeland security”. He served for seven years on the Joint Intelligence Committee. He was Permanent Secretary of the Home Office from 1997 to 2000, and before that Director of GCHQ (the UK Sigint Agency).

The text in this article is available under the Creative Commons License.