CHAPTER 2: PRIVACY
But such colourful defeatism seems largely confined to the commentariat: 82 no one I
have heard from suggested that we have come to the end of privacy, or that routine
“watching” of our communications by the state happens or should be accepted.
2.37.
Reports of privacy’s death have therefore been exaggerated. But it may legitimately
be asked whether the way we live online has changed our attitudes to privacy and
whether, if so, there are implications in this for the proper scope of state investigatory
powers.
2.38.
It is hard to resist the proposition that notions of privacy have changed in recent years.
Many of us display an unprecedented willingness to share once-private information
with online contacts, service providers and the general public. For example:
(a)
We use free email services, despite many of us being aware or suspecting that
the provider makes a profit from using the content of our communications to
direct advertising towards us.
(b)
We allow our phones to act as mobile tracking devices, as reliable as any
professional surveillance team, again with increasing awareness that this
information too is liable to be monetised and that it can if necessary be obtained
by the state.
(c)
Many of us post intimate observations on Twitter and photographs on apps
such as Instagram, to a potentially infinite number of recipients worldwide.
(d)
We accept (generally without reading them) terms and conditions which allow
our data to be used, at the discretion of the service provider, for a bewildering
variety of purposes.
(e)
We are becoming increasingly aware of the ease with which we can be
identified or profiled by anyone who chooses to combine different datasets.
(f)
By clicking “Accept”, we may even enable our data to be sold to (via a data
broker) or shared with the governments of the UK or of other countries.
In the words of the well-known cryptographer and writer Bruce Schneier, “The bargain
you make, again and again, with various companies is surveillance in exchange for
free service.”83
2.39.
But all this does not mean that privacy can no longer be protected, or that attempts to
regulate state power should simply be abandoned. Four observations may be
appropriate here.
2.40.
First, the disastrous consequences that can follow from the over-sharing of private
information on social media are becoming more widely known, whether in the form of
cyber fraud, sexual grooming, so-called “slut-shaming” or online bullying. It should
82
83
Which is itself polarised: see Pew Research Center, “Digital Life in 2025: the Future of Privacy”, (2014),
which sets out the broad views of privacy experts.
B. Schneier, Data and Goliath, 2015, chapter 1. See, generally, 8.65-8.104 below.
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