CHAPTER 2: PRIVACY
2.15.
The state has a duty to keep those within its borders safe from criminality. That duty
is generally acknowledged to require some ability to intrude upon private
communications. Where communication channels are unwatched by the state, and
still more when they are incapable of being watched, criminals can act with impunity.
That common-sense observation is reflected in the routine activity theory, a
criminological staple which states that the three necessary conditions for most crime
are a likely offender, a suitable target and – significantly – the absence of a capable
guardian.
2.16.
Whether such intrusion is appropriate, and if so to what extent, is a matter of fierce
debate: opinions differ, for example, as to whether it is permissible to interrogate the
communications of people not for the time being under suspicion, whether
communications providers should be obliged to retain data that they do not keep for
commercial purposes, and to whom and under what conditions such data should be
made available. Those who mistrust the state tend to argue that such powers should
not exist at all; others accept the powers but emphasise the need for robust
safeguards on their use. The question of trust is thus at the core of the issues to be
considered in this Review: a theme to which I return at 13.1-13.6 below.
2.17.
But such debates should not be conducted simply on the level of individual versus
state. Any intrusion into privacy is liable to have an impact not only on that
relationship, but on the individual and social aspects of privacy, as summarised at
2.10-2.12 above. Those aspects, though less tangible, are just as important. If we
neglect them, we risk sleepwalking into a world which – though possibly safer – would
be indefinably but appreciably poorer.32
The position of the UK
Popular views
2.18.
There are signs that the UK public is less troubled by surveillance issues than its
counterparts in some other countries (2.25-2.35 below); and that the same distinction
is apparent in the rulings of its courts (2.22-2.24 below).
2.19.
The need to safeguard privacy against intrusion by the UK Government and its
security and intelligence agencies is widely appreciated in theory. Indeed to a
substantial minority of the population – including many of the campaigners who have
contributed to this Review – it is an issue of the highest importance. But for others, it
lacks practical resonance. It is easy to see the utility of closed circuit television
[CCTV] cameras, DNA databases and communications data in solving crimes,
identifying terrorists and protecting children from sexual abuse. It is harder to put a
concrete value on concepts such as human dignity and the inviolability of the private
sphere, particularly in a country which escaped the totalitarian excesses of the 20th
century (thanks in part to the successes of its security and intelligence agencies),33
32
33
The threat of “sleepwalking into a surveillance society” was thought to be a reality by the Information
Commissioner, introducing his Report on the Surveillance Society, (2006): see “Britain is ‘surveillance
society’”, BBC news website, 2 November 2006: see further 12.32 below.
To give two well-known examples from World War II, the Double Cross counter-espionage system
operated by MI5; and the successes of the Government Code and Cypher School, the forerunner of
29