9. CONCLUSIONS AND RECOMMENDATION
Privacy and safety
9.1.
The essential starting-point for any law on investigatory powers is “the right to
respect for .. private life, home and communications” and “the right to protection
of personal data”.240 These legal rights are sometimes expressed in terms of the
right to be let alone, the right to conceal information about ourselves or the right
to control our own affairs. They enable the expression of individuality, facilitate
trust, friendship and intimacy, help secure other human rights and empower the
individual against the state.241
240
241
242
243
244
245
9.2.
Privacy is not simply an interest to which public authorities must have regard, but
a right into which intrusions will be countenanced only on tightly specified
conditions.242 While the individual impact of a privacy intrusion may be
imperceptible or trivial, as may repeated intrusions of a purely technical
nature,243 the cumulative effect of surveillance (and the fear of surveillance) on
the way we perceive ourselves and relate to others can be very marked.244
9.3.
But international human rights instruments are pragmatic enough to recognise
that intrusions into individual privacy will often be justified in the public interest.
The privacy right may be overridden, where it is proportionate to do so, in the
interests of national security, safety and the prevention of disorder or crime.245
9.4.
Just as much as privacy itself, each of those interests has a human dimension.
They are essential if people are to enjoy a healthy individual, social and political
life. As I have previously written:
These formulations, taken from the EU Charter of Fundamental Rights, Articles 7 and 8, are
updated from “the right to respect for private .. life .. home and correspondence” in ECHR
Article 8. See further AQOT 5.12-5,23 and 5.57-5.58. But such rights are universal, not just
European: see International Covenant of Civil and Political Rights 1966, Article 17; AQOT 5.845.91.
See AQOT 2.4-2.13.
The protection afforded by the Human Rights Act 1998 (acknowledged in clause 1(4)(b) of the
Bill) and by the ECHR thus extends beyond the “general privacy protections” in Part 1 of the
Bill, e.g. the duty on public authorities to have regard to the public interest in the protection of
privacy (clause 2(2)(c)).
It is difficult, for example, to see more than theoretical privacy intrusion in the techniques by
which bulk powers are used to locate malware and prevent cyber-attacks.
AQOT 2.8, citing the comparison made with environmental damage by J. Angwin, Dragnet
Nation: A quest for privacy, security and freedom in a world of relentless surveillance, 2014.
The legal significance of the familiar terms “necessity” and “proportionality” is not altogether
straightforward: AQOT 5.18. I have accordingly (in keeping with my terms of reference)
avoided pronouncing on whether the powers under review are “necessary”, a word which in its
everyday meaning could be taken to encompass assessments of proportionality or overall
desirability which are excluded from my remit.
119