Why Britain is on a dangerous path leading away from democracy and the rule of law

Today, the Guardian published an article revealing that British “ministers are poised to pass emergency laws to require phone companies to log records of phone calls, texts and internet usage”, meaning that the United Kingdom wants to keep a data-retention program. The bill is called “Data Retention and Investigatory Powers Bill” (#drip). As a reminder, data retention aims at acquiring large amounts of meta data (who calls whom? Which IP visits which Website? Who mails with whom?) allowing for precise profiling of citizens, as I analyzed in one of my previous articles. Data retention is, according to NSA insiders like Edward Snowden, Thomas Drake or William Binney the “master tool” for surveillance because it allows to pre-filter content surveillance. The former NSA Chief Hayden once said in an interview, “We kill people based on meta data”. Data Retention is the top priority tool for any surveillance effort in the digital age.

What is particularly noteworthy in the British case is the legitimization via the ‘threat of Geekation_PicardGovernmentterrorism’ argument which resembles a classical securitization move: the introduction of an extraordinary measure (such as mass surveillance technology) is legitimized vis-à-vis an existential threat (communism, terrorism, radical islam, facism, capitalism, pretty much everything ending with -ism). The introduction of emergency laws because of terrorism is nothing new and according to Carl Schmitt, just blunt sovereign power becoming visible. Schmitt wrote this line in the context of the totalitarian Nazi-regime. Science-Fiction has highlighted that arguments such as ‘we must adopt surveillance because of national security concerns” resemble the “age old cry of the oppressor”.

This is a dangerous path for a democracy because it leads to the circumvention of the normal political process (the purpose of which is to increase transparency) and thus democratic checks and balances.  To frame this far-reaching surveillance bill as a matter of emergency, as a matter of life and death (or of war, in the British case) aims to normalize extraordinary security measures. The mere fact that the conservative government consciously exploits emergency laws is a problematic process for a problematic bill. The bill grants far reaching rights to police and secret services, undermining their division of operations (as a primary principle of Western type rule of law). The bill includes a passage that forces foreign ISP’s and internet companies to monitor their users and to hand over data to the British government, much like the PRISM program. It is especially troublesome because of a series of incidents overshadowing the British government’s understanding of democratic principles such as the rule of law or fundamental human rights (such as freedom of the press). The Snowden leaks revealed that the British GCHQ is intercepting EU-communication data by tapping into the fiber-optic cables landing on the British shores. If this is true, Britain is spying on fellow European partners (which is a clear violation of European treaties). Furthermore, the British government threatened reporters at the Guardian because of the ongoing news about the Snowden leaks. They threatened to imprison reporters and to shut down the renowned newspaper. These are just the most recent examples of Britain’s surveillance history. The UK maintains a close cooperation with the American NSA and is the country with most surveillance cameras in place.

If we look at the wider context of the EU-data retention directive, the insistence to keep this mechanism illustrated for instance by introducing new emergency legislation becomes even more worrisome. Many other EU countries are about to abolish data retention because it is incompatible with the rule of law. The EU Court of Justice recently challenged the validity of the data retention directive, arguing that it “entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data.”. As such, data retention is not compatible with EU laws and rights (simply because it is an anti-democratic surveillance tool). Several countries followed this ruling. To date, the constitutional courts of several European member states have come to similar conclusions (among them Bulgaria, Hungary, Romania, Cyprus, Germany, Czech Republic, Slovakia, Sweden). Some of those decisions were made independently in advance of the ruling of the EU court (the German constitutional court decided back in 2010).

The fact that the British prime minister keeps insisting that data retention is necessary to “protect the country from child molesters, gangsters and terrorists”, while many other democratic countries are abandoning this because of the violation of fundamental rights, is worrisome. Britain is on a dangerous path right now.

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