If I notice George Clooney at the table next to me, and carry on with my coffee and newspaper, not saying anything, I am being considerate. If you ask for his autograph, you are not. His identity and presence is not a secret, but the low voice in which he and his companion are talking is a simple security measure. If you try to listen, you are invading his privacy, and if I make no such attempt, I am respecting his privacy.
Privacy is defined in by contrast with "public". We have a concept of a public space - roughly as anywhere anyone can go without needing permission from the owner of the space - and the law says that we have no expectation of privacy in a public space. That street photographer can take a photograph of you. The most you can do is ask her not to publish the photograph. We have a concept of public knowledge - which is available from sources that anyone can look at without needing permission from the owner of the source. Newspaper articles, electoral rolls, the registers at Companies House, the Land Registry, documentaries, non-fiction books, plus anything that can be observed about you in the ordinary way. That Sally's hair is blonde is public knowledge, that it is actually mousy brunette, is known only to her hairdresser.
Any knowledge that is not public, is private, and trying to obtain that knowledge without the subject's permission is an "invasion of privacy". In almost every society in history, if I want to know something about even a friend, that is not available from observation in a public space or not available in public records and sources, good manners dictate that I ask them if I may ask them, and not take offence if they do not want to tell me.
I do that for the same reason that I pay my bills, do honest business, respect other people's property, and treat people with courtesy and dignity: it is good for business and makes for a liveable society. Societies in which people refrain from snooping on each other are more pleasant, as are families, marriages, friendships, workplaces, and even Sunday football teams.
We often mix up the ideas of secrecy, security, privacy and consideration. A conversation in a noisy cafe is difficult to overhear, and in ordinary language, we might say we had a private conversation there. But we didn't, we had a secret one. We didn't tell you we were meeting (secrecy) and we took steps to make it difficult to hear what we were talking about (security). A better-mannered colleague than you, passing by the cafe (public space) saw us talking and noting our body language (public knowledge) guessed we were having a meeting we did not want others to know about. However, they carried on (consideration) and made no attempt to find out what we were talking about (privacy).
When privacy activists talk about a "right to privacy", what they mean is "people should not snoop, especially the State". The principle that we are under no obligation to incriminate ourselves is close to a "right to secrecy".
The State rightly regards device and communication encryption as security to preserve secrecy, even if the initial intention was to stop those creeps at Meta from gathering every last thing they can get. When those security measures enable criminality, the State is right to ask on our behalf that something be done to disable the criminality.
One of the State's suggestions is client-side scanning of everyone's internet-connected devices all the time. This is snooping, an invasion of everyone's privacy, without proof of cause. Thus Lord Denning in Anton Piller KG v Manufacturing Processes Limited
Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, "Get out."Denning was re-stating the doctrine that "fishing expeditions" - the speculative gathering of information and looking for evidence of something criminal in it - are unacceptable. English Law prefers the Police to have a specific charge and a specific complaint, and can only gather evidence related to it. This has roots in practicality as well as respect for privacy.
Unfortunately, the Internet, cheap data storage and very fast processing, plus the (false) promise of accurate analysis by so-called "AI", removes the constraint of practicality. No-one would suggest gathering and analysing data from 500,000,000 people (online population of the EU) on a daily basis otherwise. What remains is a respect for privacy. The State claims that the detection of CSAM, and terrorist recruitment and propaganda, as more important than everyone's expectation that they will only be investigated if there is a specific charge. Certainly our "rights" sometimes conflict and need to be prioritised, and the way we prioritise those rights is itself a moral and political issue.
Even if we decide that client-side scanning is justified in certain cases under strict conditions, it will be snooping. It might be legal, and it may have good intentions, but it will still be snooping and it will still be creepy. Which will have repercussions on the way people feel about the State.
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