The Clarkson crisis and mass surveillance

I will try and find some time to consider in detail and blog about the European Court of Justice decision imposing an obligation on Google to make an effort to respect what many are calling 'the right to be forgotten.'

Firstly though, on a parallel theme of our recorded digital pasts returning to haunt us, could I point you at an edited version of some thoughts I had on the recent crises Jeremy Clarkson found himself embroiled in, that the very good folks at The Conversation kindly published earlier this week. A more detailed edition of those thoughts resides below.

I see Jeremy Clarkson is in the soup again for saying the wrong thing. This time he's accused of using the reviled, offensive, racist N word, in a Top Gear out-take two years ago. The usual gang of anti-Clarksonites and more than a few others have lined up to demand the BBC fire him. Perhaps surprisingly members of the government and some in the media not otherwise known as Clarkson fans have offered him qualified support.

Elsewhere various sexists, racists, homophobes, hatemongers and other assorted flavours of humanity that dislike people not like them are attracting the attention of the news media and political opponents for being associated in some way with UKIP. The Prime Minister David Cameron has been condemned for saying recently Britain is a Christian country.

The thing is, respect for the principle of freedom of expression means letting people we disagree with speak. It means letting people who say offensive things speak. It means letting people who say nasty, unpleasant, unsavoury, distasteful, dreadful, objectionable, idiotic, mean, poisonous, hostile, malignant things speak.  It means letting people who mumble casual blokey racist comments, in ill-judged attempts at humour, speak.

Letting people speak doesn't mean we have to listen to them. It doesn't mean we have provide them with a platform to speak. It doesn't mean the media is obligated to draw attention to them. And it doesn't mean we have to laugh with them in a way that encourages casual blokey offensiveness.

I fully accept  Deborah Lipstadt's mantra that 'Reasoned dialogue has a limited ability to withstand an assault by the mythic power of falsehood' (p.25 Denying the Holocaust - a wonderful book btw). But when destructive speech does take hold we have to counteract it. We must be better at explaining, in widely accessible & persuasive ways, why hate speech is so harmful pernicious and noxious. And we must expose the falsehoods and malign intent and/or ignorance underlying it intelligently, accessibly, in a publicly appealing ways and preferably backed up with solid evidence.

The UK Human Rights Act makes the European  Convention on Human Rights part of UK law. Article 10 of the Convention says everyone has the right to freedom of expression. We have the legal right to freedom of expression in the UK. As a member of the EU, we also have the fundamental right to freedom of expression guaranteed by Article 11 of the Charter of Fundamental Rights of the EU.

To make life complicated, in the UK there are also criminal offences relating to offending or insulting someone, under a variety of statutes including s127 of the Communications Act 2003 and s4A and s5 of the Public Order Act 1986.

A number of social network users have found this out the hard way, most notably Paul Chambers of Twitter joke trial fame. Mr Chambers was convicted of sending, by a public electronic communication network, a message of a "menacing character" contrary to sections 127(1)(a) and (3) of the Communications Act 2003. He had joked on Twitter about blowing up Robin Hood airport after his flight to see his girlfriend got cancelled due to snow. He lost his job and another thereafter, subsequently found it difficult to get work and it took two and half years of legal wrangling and appeals before the High Court finally cleared his name.

The media, the public and public figures, we all love a good witch-hunt, as long as we are not the object of the hunt. Soundbite politics, the 24/7 news cycle and our world of short attention spans see words and phrases taken out of context and wielded as weapons to demonise and misrepresent opponents, shout insults past each other, blame and preferably punish someone. Public debate can't get past megaphone soundbites of the 'we're the goodies they're the baddies' variety.  This is an arena that is positively hostile to deep and informed engagement with any subject matter but a fertile place for mob rule.

Could any of us withstand the kind of scrutiny Mr Clarkson's misspoken offence, recognised at the time but resurrected two years later, or Mr Chamber's Twitter joke was subjected to? Well to be blunt we are going to have to.

Why?

Well for the best part of the past 25 years commercial entities have been recording, storing, processing and analysing everything we see and do on the world wide web, for how long, from where, with whom and with what equipment. Additionally telecommunications service providers, both fixed line and mobile, have been obliged for some time, under the 2006 EU data retention directive, to store details of and provide government access to everything everyone does on the telephone or internet; for a period of between 6 months and two years.

Invisible digital watchers follow and record everything we do on digital communications networks without our conscious knowledge or consent.

Article 5 of the 2006 directive specified the data that has been gathered by communications service providers throughout the EU. It covers names, addresses, who spoke to whom, where, when, for how long, on what device, how often, websites visited etc. etc. This all paints a very detailed picture and most people don’t know it has been going on. The who, where, why, how, what and when of individual lives is all there in this 'metadata.'

We've also discovered in the past year via the revelations of former NSA contractor, Edward Snowden, that governments, in particular the UK and US variety, have been going much further, watching and recording our networked lives in even more detail than previously realised. If we thought about it at all which most of us don't. Through clandestine programs like GCHQ's 'Tempora' and the NSA's 'PRISM' all telephone and internet traffic is being collected, processed and stored nominally for current or potential future use in the fight against terrorism or serious crime.

Anyone's complete online life history can be examined in forensic detail even though commerce and governments could not possibly examine everyone's life in detail. The UK intelligence services collect about 40 billion pieces of data per day, for example, and simply do not have the capacity to apply human intelligence to all of it.

Just one of the problems with these mass commercial and governmental silos of personal digital life histories is that small items taken out of context can constitute unexploded digital ordinance. Equivalent to the two year old misdemeanour of Jeremy Clarkson. Most of us don't have the public profile of Mr Clarkson or the interest of the public to anything like the same degree. But as Cardinal Richelieu is rumoured to have said about 500 years ago, "Give me six lines written by the most honest man and I'll show you the evidence to hang him."

Innocent ordinary people, not just celebrities of Mr Clarkson's ilk, have found themselves at the sharp end of media witch hunts.  And which of us knows what nefarious activities people connected to people connected to people connected to us via the internet might have engaged in at some time in that past or potentially in the future? I ask that particular question because the then deputy director of the NSA, Chris Inglis, testified before Congress, in July 2013, that you don't need to be a suspected bad guy to gain the attention of the intelligence services. The NSA track people "three hops" from their targets. If I had communicated with 200 people during my online lifetime I'd be three hops away from over 5 million people. Through my job at the Open University alone I've interacted directly with thousands of people over the past nineteen years. Three hops from thousands connects me to more than the entire population of the world.

I think it is fair to call this mass surreptitious collection of personal data mass surveillance.

Interestingly enough, in a historic decision, On 8 April 2014 the Grand Chamber of the Court of Justice of the European Union hinted at the same conclusion when they decided to invalidate the 2006 data retention directive discussed above. With what may be interpreted as half and eye on the Edward Snowden revelations, the Court, effectively condemned pre-emptive, suspicionless, warrantless mass surveillance and consequent "interference with the fundamental rights of practically the entire European population".

The case was the first major court decision on mass surveillance since the Snowden stories started to break in June 2013. Though high courts in Romania (2009), Germany (2010), Bulgaria (2010),  the Czech Republic (2011) and Cyprus (2011) had previously all declared the data retention directive unconstitutional and/or a disproportionate unjustified interference with the fundamental right to privacy, free speech and confidentiality of communications.

On 23 April 2014, the Slovak Constitutional Court, taking its lead from the Court of Justice, suspended of the Slovak implementation of the directive. The UK government, by contrast, has declared the UK data retention regulations remain in force despite the directive that requires them no longer being so. The Home Secretary, Theresa May, has stated elsewhere that the implications of the ECJ ruling were being assessed.  For the first time, on 9 May 2014, a UK parliamentary committee expressed concern at the oversight of the security and intelligence agencies in this context and asked for a prompt and clear resolution of the legal position on data retention.

The previous UK Labour government were one of the key driving forces behind the original implementation of the data retention directive. The current UK government is one of the biggest cheerleaders for and operators of mass surveillance standards and practices. Though the UK government was not involved directly in the case, (and are scrambling madly to find a way to circumvent the decision as, sadly, are the European Commission), both the current and the previous administrations' behaviour, in the data retention context, is considered so heinous in law that it should never have happened; and the laws facilitating that behaviour should never have existed.

Some commentators have also suggested the Court was firing a message not just to the UK but across the pond (2 min 40sec audio) to the effect that US mass surveillance standards are totally unacceptable in an EU context.

Now come full circle to the Clarkson furore. In their data retention decision, in passing (also known as 'obiter dicta'), the Court of Justice of the EU noted in paragraphs 27 and 28 of their decision the chilling effect of the knowledge that anything we say or do is being recorded and may be used against us -

"Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.

In such circumstances... it is not inconceivable that the retention of the data in question might have an effect on the use, by subscribers or registered users, of the means of communication covered by that directive and, consequently, on their exercise of the freedom of expression"

I don't find casual laddish racist remarks at all funny. I find them offensive. Just as I find casual blokey demonisation/marginalisation/ but more particularly intentional-vicious-insult-dismissal and incitement of hatred, directed at [minority group of choice], offensive. It causes division, discrimination and tension and undermines equality, human rights, decency and collective care.

But Mr Clarkson misspoke, by accident, 2 years ago, when doing a recording for a popular TV programme. The trademark of said programme is three middle aged men, acting like big kids, mucking about with cars, playing pranks and laddishly insulting each other and other people and things for laughs.

Mr Clarkson has apologised for using a word he personally loathes. The motives of those who leaked the recording are not known.

I have no idea whether Mr Clarkson is racist though I suspect not. Intended or not, ill-used words do cause damage but it is the presence or absence of hateful intent behind such remarks rather than the words used that define the mindset of the speaker.  We can't read minds so interpret that intent, by proxy, from people's words.

Nevertheless, I would ask that s/he who wish to throw metaphorical stones at Mr Clarkson, to think also of their own many stored and detailed digital dossiers and how fragments thereof might well, one day, be held against you. Especially if, like a certain Open University academic, you might have a 3 hop connection to the population of the world.