Who's reading your mail?

In 1984, George Orwell’s classic dystopian vision of a totalitarian, mind-controlled society, Winston Smith believes that it’s safe to express his non-conformist thoughts in a diary. Each time he finishes writing in the diary he carefully places upon its cover a tiny speck of dust. This is his alarm, for if the speck of dust is gone, he’ll know that the state’s been spying on him.

Unfortunately for Winston, the state knows about the speck of dust. We discover that its agents have been reading Winston’s diary and replacing the dust all along.

These days the state doesn’t have to go to those kind of extremes to find out what people are thinking, where they are going and who they are in contact with.

Communications technology – phones, the internet, mobiles – makes surveillance a lot easier. Of course this has some advantages in terms of crime. The Omagh bombers, for example, were traced via their mobile phones, and recently a child pornography ring was exposed by tracking credit card use on the internet. It can’t be denied that this kind of surveillance benefits society. But what happens when it’s extended to a blanket general surveillance of the whole population, without sufficient safeguards to mitigate against its abuse? What then of the individual’s right to privacy?

This is not just a theoretical question. Only weeks ago, European law enforcement agencies were granted sweeping powers to monitor telephone, internet and email traffic. The measure – which has yet to be drawn up in law in Ireland – means that phone and internet companies will have to keep ongoing detailed records of their clients’ communications. By accessing these records, police can get a complete picture of an individual’s personal communications: who they’ve emailed, who they’ve phoned, what internet sites they’ve visited. And because mobile phones communicate with the nearest base station every few seconds, police will be able to map people’s movements very accurately.

“This is part of a package of measures that the EU is adopting in the wake of September 11 and the terrorist threat,” says Ivana Bacik, barrister and lecturer in criminal law at Trinity College, Dublin. She explains that since September 11, the EU has taken an increased role in criminal justice, adopting measures that can change criminal laws in member states. Many of these new and often draconian laws are being ratified without parliamentary scrutiny, and are thus slipping in surreptitiously, with people only finding out about them after it’s too late for democratic debate. Laws that compromise civil liberties are being justified as necessary in the ‘War Against Terror’.

“It’s very much taking on the US agenda,” says Bacik. “It’s a response to a call by Bush for co-operation with the US in the ‘fight against evil’. And yet it’s going further than some of the measures adopted in the US. For example, when it comes to encroachments on privacy – like the new powers to seize mobile phone records and to have surveillance over people’s use of emails and mobile phones – these would be much more easily challenged in the US under privacy rights.”

While we don’t yet know exactly how the new EU law extending the power of seizure over communications records will be implemented in Ireland, Bacik fears that civil rights may be eroded.

“It’s not that these powers weren’t already there – and one can’t argue against the reason for the existence of those powers – it’s just that some of the procedural safeguards are being removed. What procedures are there to safeguard individual rights and to make sure they’re not being abused? That’s the issue. Up until now there have been some procedures – the need for search warrants and court orders – but it seems that these will be weakened or perhaps abolished altogether.”

This is alarming news for democracy, particularly in the wake of cases coming to light of abuse of power by Gardaí and cabinet ministers.

“You can see all sorts of potential for abuse on grounds of personal grudges,” comments Bacik. “The other big problem is political. In Britain in the ’70s, for example, the activities of trade unionists and CND were being monitored and their phones were tapped. And we’ve seen it in Ireland, where ministers authorised the phone-tapping of journalists. And there’s a clear potential for abuse with the

anti-globalisation protesters. It would be really disastrous for democracy if this kind of surveillance curbed political activity and democratic dissent.

“Surveillance is a very invasive power,” notes Bacik, “because people have all sorts of reasons for not wanting to make the contents of their calls and emails public. People might be having affairs or they might be secretly gay; then there’s the potential for blackmail. It’s very much open to abuse, and that’s why procedural safeguards have to be maintained and protected. And in the EU there’s no mechanism to do that.”

Apart from the obvious abuses that might come about if the state can openly spy on our phonecalls, emails and internet searches, widespread surveillance – and the threat of it – has more subtle and insidious effects. It’s not conducive to good journalism, and so has a direct effect on what’s being debated in the public arena. As Roddy Flynn, lecturer at the School of Communications in DCU observes, under surveillance you adjust your behaviour to avoid the possibility of punishment – even if you’re not doing anything illegal. Innocent people fear coming under suspicion; they get concerned about being viewed as criminals or ‘subversives’.

“That feeds back into this notion of ending data privacy,” comments Flynn. “What website might you not go to if you knew that the state could take note, even if they probably wouldn’t? You don’t know if you’re being watched or not, but the possibility that you could be forces you to assume that you are, and to behave accordingly.”

Unless you’re brave enough to know that you have nothing to hide.