Right and Wrong Uses of Secret Data

People are shocked, it seems, shocked, to discover that their governments may be spying on them. Julian Assange and Edward Snowden have done excellent work, at huge personal risk, to let us know the exact degree to which the NSA and GCHQ are grabbing data about us. They are, possibly flawed, heroes and that's the end of that part of the story.

But it's the wrong story and it's the wrong issue. Budgetary waste aside, it doesn't matter what some snoop agency knows about you. What matters is who they share it with and what they use it for. The guiding principle here is that the State may not take action against one of its taxpayers or citizens without first having proof that will meet the required standard and convince a jury, and that the defendant is able to examine the evidence in open court. (Exceptions when the defendant is someone who can threaten or apply social or economic pressure, or plain violence - then some anonymity might be useful.) Otherwise secret evidence cannot be used to bring charges or make administrative decisions and judgements. It may be used, I suggest, to let the Police know that, for instance, should they choose to be waiting by Smugglers' Bay next Tuesday night, a small boat containing a large amount of cocaine will appear. But the Police must catch the criminals and find enough evidence. Tactical direction is acceptable. Letting construction companies know that Bert Smith calls people on the contractor's blacklist is not acceptable. These are not subtle judgements. Secret information can be used to prevent a kidnapping, but not to prevent a protest march or a strike. One is a crime and the others are not.

In practice, the weakness with sigint has been that as soon as it is used in a decisive and specific manner, the people against whom it is used know it and the survivors can and will change their codes and methods. At first thought you may suppose that this no longer applies: the NSA and GCHQ are more or less openly tapping voice and data lines - or more likely, simply taking a copy of what is sent on those lines - and won't stop just because Customs ill-advisedly move against three thousand people allegedly involved in, as it might be, cigarette smuggling.

There is so much data now flying round the world that no organisation, no matter how well funded, has a hope in hell of analysing it all in any useful time-scale. Journalists are rightly concerned, since it's very east to identify and store mails to and from, e.g., "guardian.co.uk" and its servers. Looking at the internet and phone activity of the 40 million or so UK citizens online is past the capability of any technology. Joe and Jane Doe have little to worry about - unless they get onto the guest list. Then they do need to worry. Not because of what the snooping may turn up, but simply because they are on the list. That list has to remain the secret of secrets, shared with nobody, not even the Inland Revenue, airport security or the recruitment department at the BBC.

We are paying to have the security services secretly observe people who would "have sold [their] king to slaughter, His princes and his peers to servitude, His subjects to oppression and contempt, And his whole kingdom into desolation." (Henry V Act 2, Scene 2) Using secret information for that purpose is entirely correct. It is for the King, or in our case, the Courts, to move against the traitors, and to do so openly. Good King Hal shares his evidence with the accused, which is more than MI6 or GCHQ will do.

Inevitably, self-important officials, or State employees who have lost their sense of perspective, confuse their plans and policies with high treason. The enemy becomes anyone who opposes their budget a The officials employed by the State will always want to move against people you and I have never heard of but who, in the self-important eyes of those officials, pose a threat to their jobs, stability and probably undesirable policies. Use of secret data for that purpose is an abuse: we the taxpayer are not paying anyone to preserve some bureaucrat's job and expense account.

We should not be protesting about the acquisition of secret data. We should be making clear what we, as citizens, consider to be the proper use of secret data.