CHAPTER 13: PRINCIPLES
(e)
The fitting of facial recognition software to every CCTV camera, and the
insertion of a location-tracking chip under every individual’s skin, would make
successful kidnapping and abduction a thing of the past.
Some of those developments might even be possible without state compulsion: they
would appeal to people concerned about their health or their families’ safety.
13.20. Much of this is technically possible, or plausible. The impact of such powers on the
innocent could be mitigated by the usual apparatus of safeguards, regulators and
Codes of Practice. But a country constructed on such a basis would surely be
intolerable to many of its inhabitants. A state that enjoyed all those powers would be
truly totalitarian, even if the authorities had the best interests of its people at heart.
13.21. There would be practical risks: not least, maintaining the security of such vast
quantities of data. But the crucial objection is that of principle. Such a society would
have gone beyond Bentham’s Panopticon16 (whose inmates did not know they were
being watched) into a world where constant surveillance was a certainty, and
quiescence the inevitable result. There must surely come a point (though it comes at
different places for different people) where the escalation of intrusive powers becomes
too high a price to pay for a safer and more law-abiding environment.17
13.22. It may be objected that the result in combination of my first two principles is uncertain.
They would deprive criminals of sanctuary, whilst imposing limitations (for the
protection of the innocent) on the methods that can be used to catch them.
13.23. To that, I would answer as follows:
(a)
It is how things are: criminals and enforcers are locked in a digital arms race,
where neither can be sure of having the upper hand.
(b)
It is how things should be. When no human institution is perfect, and when
the great majority of those using private communications enhance blameless
lives by doing so, it is right that there should be legal limits on when and how
those communications may be intruded upon. That is so, even if those limits
from time to time diminish the effectiveness of law enforcement and result in
more bad things happening than would otherwise be the case.
13.24. Understanding the need for legal limits on state power is easier than knowing where
those limits are to be placed. It is here that my third principle comes into play.
16
17
J. Bentham, Panopticon, 1787. The Panopticon was a design for a circular institutional building in
which all could be observed by a central watchman, but none knew whether they were being observed
or not. Promoted by Bentham as an enlightened model for a prison, the notoriety of the concept stems
from the analysis of Michel Foucault in Discipline and Punish, 1975.
Or as Isabella Sankey of Liberty stated in evidence to the ISC: “Some things might happen that could
have been prevented if you took all of the most oppressive, restrictive and privacy-infringing measures.
That is the price you pay to live in a free society”: ISC Privacy and Security Report, para 94.
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