After that divorce, what now for privacy?
ESSAY: Heather Mills and Paul McCartney's very public spat throws up some intriguing questions about privacy, public space and liberty today.
Heather Mills’ demand in court last week to keep the judgment on her £24million divorce settlement private was understandable. Who would want the world to know that the judge deems your evidence ’inconsistent’ and ’inaccurate’? Yet it is a bit rich of Mills to talk of her right to privacy when she bares her soul to the world about intimate matters one minute and then attacks the judge for revealing too much the next.
Meanwhile, Paul McCartney does not seem to mind that his private security arrangements detailed in the judgment were made public. Perhaps he believes it was a price worth paying considering the glowing report by the judge on his character. Reputation semi-restored. One-nil to Macca.
The McCartney case reflects the strange contradictions at the centre of society’s understanding of privacy. Today, privacy is increasingly eroded and, at the same time, there is a manic tendency to view everything as a privacy issue that needs protecting.
A more amusing illustration of this schizophrenic approach to privacy is MTV’s Mike Strutter, a fictitious, politically incorrect, Seventies-style character played by comedian Paul Kaye (1). In one episode of Strutter, he strolls around parks shouting at people, even head-butting them, when he feels that their fast-food eating habits, happy-clappy demeanour – in fact, pretty much anything anybody is doing near him – invades his private space. Strutter feels so under siege that he suddenly appears wearing a huge, glass bubble over his head and upper torso. He struts off, looking quite content, even though the glass bubble looks ridiculous. For him, the contraption provides welcome isolation from the noise, smells and unwanted attention of passersby and, even more peculiarly, from his wife and children.
The sketch ridicules our obsession with privacy. Strutter seems to want the right to be alone, even in a crowd. And what does he decide to do in his bubble? He smokes and drinks furiously – a reminder that adults can no longer enjoy certain personal leisure activities in a public place without facing the weight of the law or at least being shunted off to some designated area to do it. Welcome to the Stifled Society.
People’s endless desire for privacy and the state’s impulse for ever-greater control of our lives are both driven by anxiety and, in their different ways, express an exaggerated concern about private life.
Is privacy dead?
While we seem to be under the constant gaze of closed-circuit television (CCTV) and at constant risk of having intimate secrets revealed through social networking sites, privacy isn’t dead. Some young, foolish or inebriated individuals do post pictures of themselves on the internet in various states of undress, but most people only share such things with their own circle of friends. Despite the UK Information Commissioner’s parental advice last year for those using social networking sites to be more careful about what they share (2), most people have been wising up for some time about the need to be aware of what they make public.
The issue of privacy is not confined to the internet, nor is it free of contradictions. The state increasingly snoops on private lives in all sorts of ways, yet the British government is also constantly developing laws and policies that attempt to balance new approaches to data-gathering with ways of protecting individuals’ right to privacy. In particular, personal data is protected by laws such as the Data Protection Act 1998 and the EU’s Privacy and Electronic Communications Regulations 2003. Despite recently bugging Labour MP Sadiq Khan during visits to one of his constituents in prison (3), British state officials still can’t bug telephone calls without ministerial approval. This suggests that some kind of accountability is demanded before the state invades our privacy – even if this concern for privacy is undermined by errors (like losing disks and laptops).
However, while privacy seems to be upheld in some instances, legislation like the Regulation of Investigatory Powers (RIP) Act 2000 undermines it. The RIP Act allows surveillance when national security interests are deemed to override privacy rights. There has also been an increase in data-sharing between state agencies such as the National Health Service (NHS), local councils and the police. In turn, this data-sharing has been accompanied by a whole new set of regulations to manage it.
There have also been concerns about the use of data by business. In December 2007, David Smith of the Information Commissioner’s Office (ICO) said that companies needed to bring in new safeguards to protect consumers’ details. This was after ICO research found that six out of 10 people believe that there is a loss of control over the way their personal information is handled (4).
So, government intrusion and an acute official sensitivity about privacy exist side by side. Hence, many in government circles were mortified when disks containing personal and financial details of 25million people were sent by internal mail by an official at Her Majesty’s Revenue and Customs (HMRC), never to be seen again. As the authorities pointed out, rules on encrypting such information had not been followed (5), and such mishaps occurred on more than one occasion (6). But while such incidents suggest a casual approach to what should be confidential information, there is no conspiracy to undermine privacy. In fact, the authorities are keen to be seen as protecting our privacy.
In business, a similar protective approach to privacy is applied. For example, Dilemmas of Privacy and Surveillance: Challenges of Technological Change, a report by the Royal Academy of Engineering published in March 2007, called for engineers to design for privacy. A foreword to the report by Nigel Gilbert, chairman of the Academy’s Group on Privacy and Surveillance, suggests: ‘Engineers have some responsibility for designing systems that enhance privacy protection.’ (7) Privacy protection has become an ethical obligation.
Privacy’s importance for public life
One aspect of the privacy discussion that deserves more attention is privacy’s relation to the public realm. Freedom in public is impossible without a private realm. There comes a point when social, cultural, political, economic and social life starts to break down if so much of life is open to the public gaze. This isn’t just a matter for an individual’s personal life but for private and public institutions and those who work in them, too.
Not everybody wants their marriage problems known to their neighbours. Can we really have meaningful professional relationships with people if nothing protects our confidences? Even the government’s drive for ‘transparency’ is damaging political life.
Media coverage is dominated by the revelation of leaks about possible and rejected political ideas from inside Whitehall at the expense of wide discussions on the conclusions of debate and practical effects of a policy. Whatever we think of them, public figures such as cabinet ministers need some measure of privacy to work out what public policy they want presented for public scrutiny. Without this, debate about policy all too easily becomes focused on off-the-cuff remarks in a brainstorming meeting, rather than what the policy actually is about and what its likely effects will be on society.
‘Privacy’ is changing
Although privacy isn’t dead, the reality of individuals’ privacy has changed. Companies demand more personal data to grant access to their online products. The rise of a surveillance society in which our movements are filmed and photographed by CCTV cameras is much-documented. Family life is now far more subject to public scrutiny and interrogation by the state. Recently, one newspaper proclaimed that security services and other agencies (including police forces, the Serious Fraud Office, councils and their agencies) requested permission to carry out nearly 1,000 bugging operations a day (8). Although bugging requests have declined in the past 15 months (following a peak after the London bombings), the list of agencies that have the authority to carry out surveillance of our email and phone records is growing: it now amounts to 800 public organisations, including prison bosses, the police, the Environment Agency, NHS Trusts, fire chiefs, the post office and hundreds of local councils (9). Furthermore, the definition of what counts as a valid subject for surveillance is expanding.
The trouble is that the notion of what counts as private, and what privacy rights should mean, has become confused. Previously, demanding privacy used to be about upholding the right of an individual against the powers of the state. Today, privacy cases are more about individuals demanding privacy from other individuals, like a celebrity demanding privacy from a press photographer, or Strutter hiding in his glass, people-free bubble.
In our culture, there’s a push-me-pull-you approach to privacy. On the one hand, there’s a rise in cultural interest in people’s private lives and on the other a new cultural sensibility that our private lives are at risk and need protecting. Celebrities tell all to the media and then demand the right to control their privacy at other times. As noted earlier, the state’s approach to privacy appears contradictory, too. This goes beyond the rules governing surveillance. For example, a proposal to ban parents from smacking their children suggests a greater willingness to interfere in areas of family life previously considered private (though the proposal was withdrawn) (10).
Attitudes about the way businesses use information about us are pretty fraught, too. There is much concern that large companies such as Google and Tesco are amassing our personal data, yet less is said about businesses monitoring their employees’ private life and using such evidence to sack them. Although businesses such as Amazon are considered suspect for telling you in advance what you might want to buy (based on your previous purchases), this kind of innovation might be beneficial to consumers, cutting down on ‘junk’ marketing because offers can be tailored to your known interests.
Causes of confusion
Why have these confusions arisen? There is much discussion about the role of technology in undermining private life. Although technology certainly has a role to play, it is not always to erode privacy; sometimes technology has aided privacy protection. While internet traffic can be easily monitored, for example, it’s also pretty easy to be anonymous online, allowing a freedom of action in the virtual world not normally available in the real world.
Technology plays a role but it is not one of the key factors in the modern transformation of our privacy and how we relate to each other. These changes occurred long before contemporary electronic means of interaction became central to our lives.
A key driver in the transformation of how private life is perceived is the collapse of political ideas in the public realm. During the 1990s, the political impulse to intervene in private life intensified, exemplified by Tory prime minister John Major’s ‘Back to Basics’ campaign. The Labour Party began to campaign around the idea that what politicians do outside parliament should be more transparent. As Tony Blair put it, he wanted to transform political life to be ‘whiter than white’. The collapse of competing political ideas that had something to say about the world ended up as a debate about how individuals should conduct themselves in private. Instead of inspiring people around a worldview, politics became increasingly about personal behaviour.
Few argue for an absolute right to individual freedom or for a notion of liberty that means less, not more, interference from the authorities. Instead, following the Human Rights Act in 1998, it is more commonly argued that freedoms must be ‘balanced’ with other rights. Under the Act, there is no longer a right of the individual to do something but only a right to do something with state-defined responsibilities.
This political philosophy has also been further developed by Gordon Brown since he became prime minister last year. In a speech in October 2007, Brown argued that liberty was about ‘what it means for Britain, for our British identity’ in the twenty-first century as well as the relationship between the ‘private individual and the public realm’ (11). In effect, Brown defines liberty not as freedom from the state but as a relationship between individuals and how we ‘feel’ about ourselves as a nation.
John Stuart Mill, the nineteenth-century liberal philosopher and campaigner who developed notions of individuality and its importance for progress, must have turned in his grave. For Mill, freedom wasn’t defined as something the nation felt. The individual was the starting point. Freedom was the basis for individuality without which individuals and society would wither. As he wrote in On Liberty: ’A State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purpose, will find that with small men no great thing can really be accomplished.’ (12)
Today, rights have diminished from a universal demand for us all to a subjective, individualistic notion of what we feel about being part of a nation and what we feel about each other. In this context, the state appears more as a protector of our feelings and negotiator between individuals rather than what it is, a powerful set of institutions that can stifle individual freedom. So, for example, while Brown argued for protecting freedom of expression, especially for ‘legitimate’ journalism, criminals will have their freedom of expression curtailed if they want to make money from books. ‘No one wants to see criminals profiting from publishing books about their crimes’, he said. Presumably, that includes former MPs such as Jonathan Aitken and Jeffrey Archer. We feel it is wrong for someone to profit from crime, but surely a free man should be allowed to profit from his words? And what if the criminal law rather than the criminal is the wrong-doer?
Policymakers wouldn’t be so sold on the idea of the state as the protector of our privacy if it weren’t for another important factor: the emergence of a risk-averse culture. We are told that we are increasingly at risk from each other; strangers could be paedophiles, parents who scold their children could be seriously harming them; a blind date could knock you out with a ‘date rape drug’. Today, those at the forefront of creating public policy have cultivated the notion that vulnerable groups are everywhere and strong protective forces are needed at every turn. This allows the state to act as a benign force, invading privacy in the name of protection and even, it is argued, to enable liberty and security of our private life (as former home secretary David Blunkett argued last November) (13).
How to demand privacy in an anxious age
At a time when privacy is seen to be invaded everywhere and by everyone, to the point that the boundaries between the private and public aspects of life have become blurred, new questions need to be raised. To clarify what privacy is about, a key question to answer today is not ‘are you for or against privacy?’ Most state and businesses representatives give at least lip service to the idea that privacy is important. Rather, the questions to ask are, ‘who’s privacy are we talking about?’ and ‘privacy from what?’
This is how I think we should argue for privacy in our anxious age:
- The cultural argument
It’s good to have a free, liberal culture where everything can be discussed (including other’s private lives). It’s good to be curious about each other, too. What needs to be argued for is not censorship to restrict what is discussed but for improving the cultural standard of the public interest when discussions occur. If we don’t retain some measure of judgement about what is and isn’t important about privacy in the public realm, we risk losing cultural standards to the uncivilised refrain of relativism where anything goes and everything is of equal importance.
- The business argument
Businesses are often seen as more suspect than the state. Before the recent debacle surrounding the accidental release of personal data by the tax authorities, most discussions about privacy in the media centred on the role of big corporations and what they did with information about us. Although businesses may employ similar methods to the state in gathering personal data, business is not the same as the state in its relations to individuals. Unlike the state, the world of business cannot impose laws and enforce penalties on us all. Business may amass quantities of data and sell it on. Companies can harbour information that could get in to the hands of others, but ultimately it has to work according to the rules set down by the state.
However, this doesn’t mean we should rely on businesses when they say they’re keeping our personal data protected. Increasingly, the state is encouraging businesses to work with it in some troubling ways. For instance, in 2005, rightmove.co.uk, the leading UK online property site, sold some of its published data to the Valuation Office Agency (VOA), the organisation that compiles council tax valuation lists and passes on information to HM Revenue and Customs. Rightmove, it seems, had no problem with this (14).
One of the major powers businesses have over individuals is the power to sack employees for what they do in their private lives. Rather than fretting about what businesses do with data about our shopping habits, it would be far better to challenge businesses when they interfere in employees’ private lives and throw people out of work.
- The state argument
Compiling so much personal data as the current government does seems like the act of a paranoid state. However the computerisation of records can be useful. If we must have driver’s licences and passports, it’s a lot more efficient if the information is computerised and easily accessible by those who administer it.
The problem with the state’s collection of data is not always about the actual data, images or other recordings they’re collecting; the real problem is what they intend to do with it, and why they want it in the first place. For example, there is a relative lack of opposition to the state’s child and adult protection policy. Child abduction and murder is rare, yet around 10million adults in the UK (a third of the working adult population) will require Criminal Records Bureau (CRB) checks next year under the Safeguarding Vulnerable Groups legislation (15). It’s time to question the risk-averse justification of current policy, not just the illiberal effects of it.
Privacy isn’t dead but it has been strangled almost to death. Technology isn’t a prime cause; in many ways, the internet is just another public space. But technology can speed up and heighten the collapse of the public and private sphere distinction. Certainly, recent events and developments online highlight social shifts and approaches to privacy.
We need more privacy from those with power over us. Rather than turn on each other, we should consider without anxiety the role of the state in redefining how we relate to each other – and argue, coherently, for more individual liberty against state interference.
Tessa Mayes stood up for the right to photograph and write about public figures – including Prince William’s girlfriend. She also looked at how Princess Caroline of Monaco used the EU to defend her privacy. Elsewhere, Josie Appleton asserted the importance of privacy, and Rob Killick explained why it’s important to have spaces that are free from the prying eyes of officialdom and others. Or read more at spiked issue Privacy.
(1) Strutter, MTV clip on YouTube, 2007
(2) Privacy warning for young users of networking sites, Guardian, 23 October 2007
(3) Police bugged Muslim MP Sadiq Khan, The Sunday Times, 3 February 2008
(4) Data Privacy Call, News in Brief, The Times (London), 11 December 2007
(5) Bungling Civil Servant who lost details of 25 million families is given safe house and 24-hour minder, Daily Mail, 21 November 2007
(6) Revenue routinely sent secret data with no security, The Sunday Times, 25 November 2007
(7) Nigel Gilbert, Chairman of the Academy’s Group on Privacy and Surveillance, in Dilemmas of Privacy and Surveillance – challenges of technological change, Royal Academy of Engineering, March 2007, p3
(8) Big Brother tapping our phones and emails 1,000 times a day, Daily Mail, 29 February 2008
(9) 800 public bodies now have powers to ‘snoop’ on our phones and emails, Daily Mail, 30 January 2008.
(10) Gordon Brown, speech on liberty, 25 October 2007
(11) Total smacking ban is ruled out, The Times (London), 26 October 2007
(12) Quote from ‘On Liberty’ cited in John Stuart Mill – Victorian Firebrand, by Richard Reeves, Atlantic Books, 2007. p.9.
(13) Security needs more data, not less. The database is simply about identity, David Blunkett MP, letter to The Times (London), 23 October 2007
(14) Big Brother is coming, Tessa Mayes, Spectator, 28 February 2007
(15) Vetting and Barring Scheme, policy briefing back,’ Department for Education and Skills (DfES)
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