The EU Giveth Digital Privacy & the EU Taketh Digital Privacy

In a previous post, I wrote that, “Digital privacy regulations don’t tend to prohibit government mass surveillance, although there is at least one exception. (And the exception isn’t a panacea nor a pathway for other countries such as Australia, NZ, the UK, the US, and Canada.)

The exception was the European Court of Justice banning the “general and indiscriminate transmission or retention of traffic data and location data” based on Articles 7, 8, and 11 of the EU Charter of Fundamental Rights.

“This is the way”, I thought.

Mass surveillance can only be stopped by making mass surveillance illegal under a Bill of Rights. Such a Bill prevents the machinations of the politics of the day implementing/modifying/improving mass surveillance against citizens. Consider the USA’s First Amendment: Despite increased calls for “hate speech” legislation in the US, such legislation would never survive a Supreme Court challenge.

In short: Politicians’ and bureaucrats’ power needs to be limited. There mustn’t be a mass surveillance option on the table, as there mustn’t be a “hate speech” law on the table in the USA.

I wasn’t surprised to read that the European Court of Justice limited mass surveillance. Likewise, I wasn’t surprised to read that the EU is planning to ban end-to-end encryption.

On one hand, the EU protects citizens’ digital privacy, and, on the other hand, the EU proposes a law against citizens’ digital privacy. How is this possible? Because the decision is at the whim of anti-encryption organisations/activists, parts of the media, special interest groups, politicians, police and intelligence agencies, and bureaucrats.

Banning end-to-end encryption is possible because enough people have yelled loudly enough to get politicians’ attention, and arguments of security over freedom have won. (Which is hardly surprising given European countries value security over freedom, whereas the USA values freedom over security. Australia is somewhere in the middle.) And the USA is hardly exempt from the security over freedom urge, as anyone who’s even glanced at the Snowden documents knows. The USA’s philosophical founding and underpinnings — largely based on the classical liberalism of John Locke and his fellow Enlightenment figures — failed to address digital privacy — which is unsurprising given that the horse and cart was the technology of the day — and hence there are is no protection against mass surveillance such as the First Amendment.

For those who care about digital privacy, there is an uncomfortable truth: Philosophically, countries that promote security over freedom may defend some areas of digital privacy; however, these countries won’t end mass surveillance given countries that promote security over freedom won’t be able to defend against arguments for more security (e.g., against terrorism, against child exploitation, against criminal activity) that support mass surveillance.

On the political Left, proponents of mass surveillance naively think that Big Government (security over freedom) can ban mass surveillance. On the political Right, proponents of mass surveillance naively think that the government, bureaucrats, police, and intelligence agencies won’t ever use mass surveillance to their advantage, against citizens. Unfortunately neither Left nor Right has shown an interest in limiting its own power by ending mass surveillance. At a party level, policies against mass surveillance are typically only found in classical liberal or libertarian parties.

Younger readers are likely not to understand the historical context. The so-called Crypto Wars have been raging for decades. Steven Levy’s excellent book, Crypto — How the Code Rebels Beat the Government Saving Privacy in the Digital Age, details the modern-day history of cryptography and the failed attempts of the US government to ban the export of encryption products.

Likewise, the NSA’s Clipper Chip, was an attempt in the early ’90s to put a backdoor in products. This issue is also covered in Levy’s book, which I highly recommend and still have on my bookshelf (and Kindle).

Fast forward to the last few years, and the debate rose again when Apple refused to unlock an iPhone for the US government.

History repeats itself, and we find ourselves arguing over the same issues, decades later. Likewise, the USA tends to lead on such issues, and other countries in the West fall in line.

For someone who is now closer to 40 than in my early 20s when I read Levy’s book, it’s disappointing to see the same narratives play out decade after decade (e.g., backdoors are needed for “our safety”). Meanwhile, the road to digital serfdom can never lead to more digital privacy but only to less digital privacy.

What’s the answer? It begins with the realisation that government is the problem, not the solution. The Crypto Nerds had this realisation in the ’60s, and it’s time that we moved in a similar direction.