Over the past decade, the internet has played an increasingly prominent role in our daily lives. Its importance has been highlighted by the COVID-19 pandemic and due to the rise in employees working remotely and students studying online, there is an ever-accelerating need for greater online connectivity. With more convenient communication tools, such as messaging apps and social networks, has come an increased reliance which has served to further blur the lines between our physical lives and digital ones. Although the internet is most commonly used for internet shopping, communication with friends and family, and streaming entertainment, it is also used to spread ideologies and run criminal operations. Purportedly to protect society from the latter, governments across the world have created progressively invasive surveillance laws, granting themselves access to the public’s communications data, of which there is an increasing amount.
Data surveillance is one of many policy areas that incites the age-old argument regarding the appropriate level of government interference. One’s answer to the question can indicate at which end of the political spectrum they reside and will act as the fundamental building block of one’s policy decisions. In technical vernacular, the battle is between dominium – that is, the amount of power that one has to dominate another – and imperium, which reflects the amount of power that the government has to dominate its citizens. The two can be placed at either end of a spectrum, with complete dominium being exemplified by an anarchic state, and complete imperium being represented by an authoritarian state. All other styles of governing can fit within this scale, and how data surveillance policies can maintain equidistance from either extreme is the underlying question of this essay.
The main aim of this essay is to ask whether the UK government’s data surveillance powers constitute unjustified domination, and to highlight the ways in which a similar policy can be created to avoid it from being dominating. To understand whether these powers establish a relationship of domination between a government and its citizens, the idea of government data surveillance will be examined through the lens of Republican freedom. Specifically, philosopher Philip Pettit’s three conditions, that determine whether a relationship is one of domination, will be used to structure the analysis of data surveillance. Furthermore, each condition will be viewed from the perspective of dominium versus imperium. It will be assumed that a certain level of imperium is justified by the government’s responsibility to protect its citizens from domestic and foreign threats, and that “unjustified domination” arises when the government begin to dominate citizens in ways that are unrelated to crime prevention or counterterrorism. Finally, this essay seeks to suggest ways in which this potential domination, and its effects, can be restricted.
I believe that my research has social relevance as it highlights how government data surveillance can be dominating, the long-term effect it could have on people’s freedom, and the need for there to be restrictions on the powers created by these laws. My research also has practical relevance as it highlights how these types of policies and laws can be improved to maintain people’s freedom.
Before applying Pettit’s three conditions, background will be provided on Republican freedom and on the current data surveillance powers that the government has. The application of Pettit’s conditions to data surveillance will be the main section of the essay where I will examine the ways in which government data surveillance can be dominating. Each condition will be subdivided and will include the view of Negative theorists for contrast.
When referring to ‘domination’ in this essay, it is in the context of Republican freedom. I am largely referring to Philip Pettit’s version of Republicanism as he is one of the primary and founding philosophers in the area, but I will also be including the opinion of fellow Republican philosopher, Quentin Skinner. For contrast, I will also briefly examine each condition from the perspective of Negative theorists who view freedom as existing in ‘non-interference’, rather than ‘non-domination’. As Negative theorists view freedom differently to Republicans, their inclusion in this essay serves to provide an alternative opinion on how much of a threat government data surveillance poses to our civil liberties.
This essay is not an in-depth analysis and criticism of Republican freedom, or a comparison of Republican and Negative freedom. The subject matter is limited to data surveillance committed by the government because private surveillance is commonly carried out for commercial gain or abusive purposes, whereas the government’s surveillance of our data and internet activity can have a wider effect on the future of our civil liberties and our democracy. Additionally, this essay is not intended to be a comment on the ethics of government surveillance, but on how it can dominate us and impact our freedom.
In academia, Republican freedom has been applied to surveillance many times, but my research will contribute to the conversation by specifically homing in on data surveillance laws. The discussion will use the UK’s Investigatory Powers Act 2016 (IPA) as an example of current legislation, as it is one of the most controversial and polarising laws in recent times. In his 2015 A Question of Trust Report of the Investigatory Powers Review, David Anderson QC described the debate around such powers as being “often characterised by exaggerated rhetoric and by a lack of trust between participants” (Anderson QC, 2015. P250). Epitomising the battle between dominium and imperium, Josh Bartlett, author of Orwell versus the Terrorists, further described the debate as, “lurching between these nightmarish poles: we can choose a dystopia where our every move is secretly monitored, recorded and analysed, or a world where criminals are able to do what they like.” (Bartlett, 2015. P62.) Of all the powers that the IPA provides, this essay will focus specifically on the bulk communications area of the data surveillance powers as they allow for the bulk interception and collection of the public’s communications data by the government and any agencies they deem appropriate. I will explore the ways in which it does, and does not, comply with Republican ideals to establish whether it dominates UK citizens, and I will suggest ways to bring it closer to the aims of Republican freedom.
What constitutes domination?
This chapter aims to explain the meaning of ‘domination’ from the individual and governmental perspective, before stating what it means in the context of Republican freedom. As Republicans aspire to a relationship of ‘non-domination’, it is important to clarify what that means specifically before applying it to a policy area.
Dominium vs. Imperium
In Two Treatises of Government (1690), John Locke summarised the role of law as being “not to abolish or restrain, but to preserve and enlarge freedom” (1960, P306) and specified that he did not consider freedom to be “a liberty for every man to do what he lists” (ibid.). These two statements summarise both the state’s and the people’s role in preserving our society by ensuring neither party can dominate the other.
As a believer in freedom as being ‘non-domination’, Pettit references two types of domination; dominium and imperium. ‘Dominium’ is the domination of people by other private individuals and companies, as they become forced, through coercion or other means, into doing something that they would not otherwise have done. ‘Imperium’ refers to the amount of authority that the state possesses, which can result in the domination of its people. Pettit asserts that, if it is the state’s goal to achieve Republican freedom, then it is their responsibility to limit the potential for dominium while restraining their government’s imperium. He believes that a Republican state “must be concerned with what the state is as well as what it does: with the forms as well as with the aims of the state” (Pettit, 1997. P276). To limit imperium, laws must “respect people’s common interests” (ibid., 36) and they must not be “the instruments of any one individual’s, or any one group’s arbitrary will” (ibid.). The former speaks to the aims of the government while the latter relates to the structure of the government, and both are crucial to the achievement of Republican freedom.
The battle between dominium and imperium is prominent in the creation of any surveillance policy or law, which affects one of our fundamental human rights; the right to privacy (The Right to Privacy and Why It Matters, 2015). Data surveillance policies are supposedly intended to make society safer by exposing and preventing terrorist plots and crimes in general. This would limit the risk of dominium being exercised by one individual (i.e., a criminal) over another. For example, the criminalisation of non-consensual sharing of another individual’s private, sexual photos or videos is designed to protect the victim from being blackmailed and dominated by the perpetrator, and carries a sentence of up to two years in prison (Ministry of Justice, 2015). If the government were to outlaw the creation or consensual sharing (for example, by the material’s creator) of so-classed ‘explicit content’, thus restricting one’s bodily autonomy, that would be a severe and controversial exertion of their imperium. As will be demonstrated later, data surveillance laws can easily affect one’s autonomy, even if the government has no intention of interfering by using the collected data for purposes other than the prevention of crime. It is important to clarify, however, that our moral right to privacy is not absolute, as few would argue for a suspect to have an absolute right to privacy if there is sufficient proof that they are a terrorist and have plans to carry out a terrorist plot (Macnish, 2017). Therefore, there are some limited contexts in which data surveillance is justified, and there needs to be secure and democratically agreed boundaries in place to ensure those contexts are strictly adhered to.
Republicanism: freedom as ‘non-domination’
Philip Pettit, the aforementioned Republican philosopher, promotes the idea of freedom as non-domination, wherein the holder of the power is subject to restrictions that prevent them from arbitrarily interfering. A relationship in which an individual is the subordinate of their master can be epitomised by a wife who, at the mercy of her husband, may be beaten at his will. Another example can be found in an employee who is unable to file a complaint about their employer for fear of unfair and arbitrary reprisal. The wife and the employee are forever dependent on the benevolence of their dominator and will be required to flatter and appease them. With little or no protection, they will be looking over their shoulder, unsure when the next interference or abuse could occur. Pettit succinctly explained this as “the price of liberty is eternal vigilance” (Pettit, 1997. P6). Republican freedom requires liberation from this subordination. The traditional and classical Republican tradition, of freedom as ‘non-domination’, associated with the likes of Cicero and Machiavelli, was popular in political debate during the late seventeenth and eighteenth centuries. A defining feature of their discussions around Republicanism was the intrinsic understanding that, while freedom as non-domination is secured and guaranteed by the state and its officials, the officials themselves pose a threat to this freedom and must be kept in check (Pettit, 1997).
As a fellow Republican philosopher, although he preferred to call it ‘neo-Roman’, Quentin Skinner agreed that if your rulers have arbitrary powers, your civil liberty depends on their good-will and “you remain subject or liable to having your rights of action curtailed or withdrawn at any time” (Skinner, 1998. P70). He asserts that “to live in a condition of dependence is in itself a source and a form of constraint” (ibid., 81), because if the subordinate is aware of this power imbalance, it will restrict them from exercising particular rights. Additionally, this state of dominance means that, even if the master declines to exercise their power, the subordinate may choose not to utilise certain civil liberties, in order to appease their master and maintain the current level of freedom that they have been permitted.
When defining whether a relationship is one of domination, Pettit specifies that “someone has dominating power over another…to the extent that;
1) they have the capacity to interfere
2) on an arbitrary basis
3) in certain choices that the other is in a position to make.” (Pettit, 1997. P52)
It is these three areas that will be applied to the idea of government data surveillance in this essay.
Government data surveillance powers
This chapter seeks to describe the current data surveillance powers possessed by the government. It will explain what the IPA is and why it was created by providing information on recent terror incidents. This contextualisation is required before the next chapter, wherein these powers will be examined through the lens of Republican freedom to understand their dominating behaviour.
Government data surveillance is a broad topic so this essay will be focusing specifically on the bulk interception of communications data that laws like the Investigatory Powers Act 2016 (IPA) permit the government and affiliated agencies to undertake. The three tenets of these powers are the interception, collection, and retention of communications data and, as they each affect our collective freedom in differing ways, they each require and deserve a more thorough examination than can be offered here. For the purposes of brevity, when referencing the IPA, and their bulk interception of communications data, I will be referring specifically to the initial interception of data as I believe this to be the point at which the surveillance powers are put into practice by invading one’s privacy.
The IPA was updated in 2016 due to the increasing prevalence of terrorism and the developments in how terrorists communicate and spread their message. The Islamic State (ISIS) are a prime example of a modern terrorist group who embrace technology and digital communication methods, flocking to encrypted messaging apps in order to organise themselves and recruit in private. There have been 17 terror attacks in the UK since 2010 committed by Islamic extremists and far-right extremists (‘List of terrorist incidents in Great Britain’, 2021) with a further 26 terrorist plots reported to have been foiled in the past four years (’26 terror plots have been foiled since 2017 Westminster attack, minister reveals’, 2020). As a result, the current terrorist threat level in the UK, as set by the government, is ‘significant’; indicating that an attack is likely (UK Government n. d.). These statistics support the argument for the creation of the IPA 2016 and provide some limited evidence that there is a need for law enforcement agencies to have access to certain data that can be used to prevent similar incidents.
However, data surveillance laws result in an increased monitoring of people’s communications (when the monitoring is public knowledge), the side effect of which is the public resorting to adopting software which employs end-to-end encryption to protect users’ interactions. When terrorist groups exploit this technology for their own ends the government will predictably respond by instating more invasive surveillance policies, and thus the spiral continues.
The IPA, often referred to as a ‘Snooper’s Charter’ (Burgess, 2017), was originally introduced in November 2015 by then-Home Secretary Theresa May before coming into force in December 2016. The IPA was an update on, rather than a replacement of, the Regulation of Investigatory Powers Act 2000 (RIPA) (Hale-Ross, 2019) and was intended to narrow the gap between current technology and the capabilities of the UK’s law enforcement agencies to monitor online activity. RIPA provided the foundations for this legal framework, but the IPA focused “more on electronic communications data surveillance and bulk powers, in line with 21st Century technology, and to combat terrorist communication…” (Hale-Ross, 2019. P61). It replaced the bulk powers provided by RIPA and provided a new decryption power, as well as making it easier for the appropriate agencies to apply for warrants to access the collected data (Hale-Ross, 2019). Privacy protections appeared in Part One of the Act, highlighting their importance, alongside penalties for the abuse of the updated surveillance powers. Stronger forms of judicial scrutiny and broader safeguards for the protection of personal data and privacy rights were also provided (Hale-Ross, 2019). The process for agencies to access this data remained mostly the same as provided for under RIPA, whereby the Secretary of State was required to sanction any warrants. But the IPA introduced an additional ‘double-lock’ system in which “an independent judicial commissioner must review the authorisation prior to any police action, and the authorisation of the warrant is to be reviewed at a later stage by a new Independent Investigatory Powers Commissioner” (Hale-Ross, 2019. P62).
RIPA permitted the government to store phone records of people from British communications providers, with no provision for internet records. Due to this new requirement by the IPA, communications providers now had to store their customers’ records for a maximum of 12 months. RIPA declared that “the interception of communications by public bodies in the UK needed to be necessary and proportionate to the ends sought” (Macnish, 2017. P21), and whether that requirement is met by the succeeding surveillance policies is a hot topic of debate amongst privacy advocate groups. The difference between RIPA and IPA may seem relatively small but when the importance of the internet to our daily lives is taken into consideration, the update becomes more significant. The records that are collected, under the IPA, could potentially reveal far more about a person now than they would have under RIPA in the early 2000s as it allows the government and its intelligence services to “engage in hacking, aggressively gaining access to the computers of people suspected of working against the interests of the UK” (ibid.). “The interests of the UK” is a deliberately vague term that can be manipulated to suit the aims and the narrative set by whichever party is currently in power.
Are these powers dominating?
The two previous chapters have helped to set up the context and the subject of this discussion. This chapter will now combine them by applying Pettit’s three conditions, that determine the extent of domination within a relationship, to the idea of government data surveillance.
‘Capacity to interfere’
The first of Pettit’s three conditions, when determining whether a relationship is dominating, is to what extent the dominant agent has the capacity to interfere with their intended subordinate. The interference committed must only make things worse for the victim, so it cannot take the form of a bribe or prize and it must be intentional; not accidental. This condition is intended to secure people against actions they may attempt to take on each other, rather than protect them from the effect of chance (i.e., if I buy the last loaf of bread and leave you with nothing, or I accidentally step in front of someone and block their path). Therefore, interference can take many forms including “coercion of the body…coercion of the will…manipulation” (Pettit, 1997. P52). Lastly, the capacity to interfere must be real and ready to be exercised because a potential capacity may create future dangers, but it does not yet represent the danger that Republican theorists intend to protect against (Pettit, 1997).
Domination can occur without interference, because the subordinated remain subject to their master’s mercy even if their master is disinclined to interfere. The domination is restricted, however, if the dominator recognises that they are “subject to challenge and rebuke…that they cannot interfere with complete impunity.” (ibid., 64). This limits the capacity for abuse as the holder of power will be conscious that their actions can be challenged and punished – but it does not eradicate the asymmetry of power entirely. In addition, if the holder of power claims that they are a virtuous individual and have no intention to interfere with anyone, this does not decrease their capacity for interference as their virtuosity may be tenuous and brief (ibid.).
Applying Republican theory to data surveillance laws
The government has an intrinsic responsibility to protect its people from interference by external enemies because, “when war becomes a sustained prospect…then the cause of non-domination is compromised” (ibid., 151). But external and domestic threats are often grouped as ‘terrorists’ and ‘extremists’; categories that can be broadened or narrowed to suit one’s agenda and are often weaponised in the argument for increased surveillance. A government could expand the term ‘extremists’, for example, to include environmentalist groups such as Extinction Rebellion who organise large, disruptive protests, and would therefore be outlawed. This definitional adjustment could occur if a group negatively affects companies in which the government has a financial stake, or if they are influencing public opinion in ways that are disapproved of by the government. They may also want to deter certain ideologies from spreading online, requiring the monitoring of social media channels and access to messaging apps. These categorical changes may not always be public knowledge, which allows the government to expand their capacity to interfere.
In the context of data surveillance, the ‘capacity to interfere’ is directly applicable to interfering with one’s data. This includes intercepting the data in transmission and storing it for a set period where that data can then be accessed at will. The conditions of access will be discussed in the next chapter. The electronic communications data that is being collected in bulk is classified by the UK’s Investigatory Powers Act 2016 (IPA) as being “data in the course of transmission” and, crucially, “this does not include the content of the communication” (Hale-Ross, 2019. P63). The “course of transmission” includes the storing of the data on the devices that are used for sending or receiving the data (i.e., smartphones, tablets, and Internet servers), meaning that law enforcement agencies can access the contents stored on Internet servers. This ‘content’ is defined in section 261(6) of IPA as being “any element of the communication, or any data attached to…the communication, which reveals anything of what might reasonably be considered to be the meaning (if any) of the communication” (UK Government, 2020. P65). It also states that “any data relating to the transmission of the communication is to be disregarded” (ibid.), implying that if the content (i.e., the content of an email in transmission) has been obtained unintentionally then it should be disregarded. In summary, ‘data’ in this context, means only the metadata attached to the communication should be collected, including the IP address it is sent to and from, and the time it is sent and received (ibid.).
Laws like the IPA are sold to the public as a crime prevention tool because the bulk data that is provided by such legalised surveillance can be used to identify possible terrorists and discover potentially relevant leads of investigation; essentially searching for a needle in a haystack. Once the communications data is collected, in bulk, it can be used for ‘targeted interference’. In the First Sitting Committee Debate on the IPA in 2016, Lord Evans, the former Director General of the Security Service (MI5) was questioned by the then-Labour MP (now Labour Party leader) Kier Starmer on how ‘bulk interception’ graduates to ‘targeted interception’. Lord Evans gave a fictional example from MI5’s perspective wherein they, along with law enforcement, may be searching for members of the Islamic State (IS) terrorist organisation. These bulk collection powers allow them to filter through the catalogue of data provided by UK citizens and home in on UK citizens who have been regularly travelling to or from the Middle East and Syria during the last six months. They will then narrow the list down further by identifying all individuals that own a mobile phone and have been in Syria or Northern Iraq, then filter it further by seeing which of those identified had recently visited Molenbeek, Brussels (a hotspot for recent terrorist activity at the time of Evans’ presentation). According to Evans, these multiple filters will produce between a dozen to two hundred individual devices that may be relevant to the search. Once that list has been compiled, the agency will see which of these have been in “first or second-order contact with known extremists” (Hansard HC Deb, 2016), meaning that they have been in contact directly or via a third party with the device of someone identified by the government as an extremist or with someone who is in regular contact with a known extremist. This refines their list from triple digits to single digits. This shortlist will then be subjected to targeted surveillance to connect devices to people. According to Evans’ conclusion, the described process “has been an absolutely central part of how we [MI5] have identified individuals who have been involved in terrorist planning” (ibid.).
The ‘common knowledge’ condition
For domination to take place, in the Republican tradition, the asymmetrical relationship will be common knowledge to both parties. “Both will share an awareness that the powerless can do nothing except by the leave of the power: that the powerless are at the mercy of the powerful and not on equal terms”, Pettit states (ibid., 60). This is especially true when discussing the relationship between a government and its people. However, the dominated party are not guaranteed to view this dominance negatively because, while dominance can be seen as slavery, the subordinated may see policies, like data surveillance policies, as security rather than an invasion of privacy. This can be caused by naïve trust – a belief that the dominating power has good intentions – or wilful ignorance that is driven by a consuming desire for ‘a quiet life’. The holder of power is well-equipped to exert their dominance, through fear and manipulation, using tools ranging from physical strength and financial power to political authority, and censorship of oppositional information. Pettit says that “such resources tend to be prominent and detectable by those to whose disadvantage they may be deployed” (ibid.), which ensures that the dominant relationship is common knowledge to both parties. Even when the relationship of dominance is common knowledge to both parties, the master can control how their dominance is perceived by the subordinated and to what end their subordinates know their place. For example, data surveillance policies are often complex and convoluted, making them relatively inaccessible to the public. The media can also be manipulated into playing on the public’s fears by making terrorism appear as more of an impending threat than it may be, thus coercing the public into supporting more invasive policies and allowing the government to further add to its collection of data and power.
Regarding the condition of common knowledge, everyone will recognise the amount of power and resources the government have at their disposal for deployment at almost any time. However, the dominated may not fully comprehend the extent of the surveillance that the IPA permits the government to practice, as it is wrapped up in legal and technical jargon that is inaccessible to the average person and, therefore, impossible to consent to. Such conditions are effective in deterring widespread opposition. For example, it is not immediately obvious what data will be monitored, how it will be monitored, and for how long it will be retained. This relates to Pettit’s point about both parties needing to be aware of their position in the relationship, in that it is common knowledge that the government are one of the greatest (in size, not quality) masters that one could be dominated by and challenging them successfully would be an almighty feat, akin to David and Goliath.
Evidently, the government’s capacity to interfere is both real and ready to be exercised at will because everybody’s data is collected and held for an unspecified period, meaning that it can be accessed by the government, law enforcement agencies, and any other divisions or external groups that they consider eligible. Whether the interference “makes things worse” (Pettit, 1997. P52) for the individual being interfered with is relatively subjective and depends on the form it takes and the result, both direct and indirect. An individual who has had their data collected may then see it used against them by the government or law enforcement agencies. If that data correctly identifies them as a potential criminal and it is then used to prevent them from causing harm or leads to their being held accountable for past crimes, then the direct interference has a positive result for society as it makes everyone safer. However, if the individual is misidentified and they are wrongly arrested and interrogated then they are negatively impacted by the interference, even if they are immediately released and receive an apology or compensation. Regardless of the outcome for the individual, if they or the wider population are aware that the government is collecting everybody’s communications data and they have the capacity to interfere, regardless of whether they intend to interfere, this will affect the subordinated party. When an individual is aware of being watched, they become self-conscious and will begin to self-censor their communications and, eventually, their own thoughts. Although there may be positive results occasionally (e.g., identifying terrorists), the overall effect of the surveillance is negative for society and individual freedom. This brings into question how necessary and proportionate these types of laws are.
The government’s capacity to interfere by intercepting and storing users’ data is intended to assist them in identifying criminals, thus protecting citizens from being interfered with, and potentially dominated by others. However, the protection that this capacity supposedly offers is not impenetrable, and large terrorist attacks still occur in the UK, as we have seen in the 2017 Manchester Arena bombing that resulted in 23 deaths, including the terrorist himself (‘Manchester Arena bombing’, 2021). These laws are intended to prevent the spreading of dangerous ideologies but, as will be explored in the next chapter, it is largely the government’s responsibility to determine which ideologies are classified as being ‘dangerous’.
In exchange for protection, all citizens are required to sacrifice their right to online privacy. Intrinsic to this requirement is the implication that all citizens are potentially criminals as they are placed under suspicion merely by connecting to the internet, and thereby triggering the collection and storage of the data they subsequently generate. While the data that the government has access to is limited and opaque, it still can be used to specifically identify individuals and to invade their privacy, if required. So, the threat of dominium over an individual is lowered but the government’s imperium is increased as they gain more power to interfere with a larger number of private citizens.
In the context of Negative freedom
The government’s power to interfere is of lesser concern to Negative liberty theorists. They believe that being free requires the prevention of intentional interference by a dominant agent, including physical coercion (e.g., kidnap, imprisonment) and coercion via threats (e.g., ‘Your money or your life’) (Skinner, 1998). This means that one is free “to the degree to which no human being interferes with my activity” (Berlin, 1958. P168) and that one’s activities are “not physically or legally constrained” (Skinner, 1998. P79). Due to its focus on the absence of constraints, this conception of freedom is commonly pursued by libertarians who believe in a minimal state and minimal government intrusion in the private sphere and in markets.
Contemporary philosophers Ian Carter and Matthew H. Kramer suggest, in contrast to Republican philosophers Pettit and Skinner, that one’s freedom is affected in proportion to the likelihood of that power being exercised; meaning that one is free if their master is benign and has no interest in interfering (Carter et al, 2007). This notion of Negative liberty imagines imperium as a nuanced scale rather than a binary concept. Republicans concede that a person’s freedom should be measured by the room they have to act, in line with their own interests and that the use of force or threats are among the number of constraints that restrict one’s liberty. However, they contest the belief that these are the only constraints that restrict one’s liberty and assert that “to live in a condition of dependence is in itself a source and a form of constraint” (Skinner, 1998. P84).
The ‘capacity to interfere’ has less importance in the eyes of a Negative theorist as they are more concerned by actual interference and the constraints placed on liberty by an individual or government, rather than solely the potential for this to occur. This disconnect between the constraints of liberty and the form of government that permits those constraints imply that an individual would be no less free under an authoritarian government than they would under a pure democracy, if the master in either situation has no interest in interfering with their people (Skinner, 1998).
In the context of data surveillance, Republican believers suggest that the interference occurs when an individual’s data is intercepted. This is when the government becomes the ‘master’ due to them now having the capacity to use that data against them, regardless of any perceived benevolence or claims of good intentions. Contrarily, traditional Negative theorists largely claim that one is Negatively free until the government choose to use that data against them, either by coercion or physical interference through arrest. To bring this capacity in line with Republican freedom, the powerholders must be made aware that there are boundaries on their powers, and punishments are in place if these powers are abused. This highlights the importance of the safeguards included in the updated Investigatory Powers Act 2016, as these limit the arbitrariness of the government’s actions.
‘On an arbitrary basis’
According to Pettit’s requirements, for a relationship to be dominating, the power-holder’s capacity to interfere must be on an arbitrary basis. The decision to interfere must be subject purely to the agent’s judgement and it is made at their pleasure. As the interference is perpetrated against another person, this condition naturally implies that the dominated person’s interests or preferences are not taken into consideration by the power holder (Pettit, 1997). Vice-versa, a non-arbitrary act of interference would involve being “forced to track the interests and ideas of the person suffering the interference” (Pettit, 1997. p55). However, their interests may not be required to be taken into consideration if they are unrealistic, so this condition of non-arbitrary interference refers specifically to the person’s relevant interests. For example, an individual’s interest may be in all shoplifters being arrested and incarcerated, but with they themselves being treated as an exception to the law. However, this would allow for the individual to have dominium over others by exerting their dominance without consequence. As the government is supposed to serve others as well as the individual, they practice their imperium by enforcing the individual’s relevant interests, i.e., the interests that the individual has in common with others, so the individual at fault does not receive special treatment. This view of arbitrary and non-arbitrary interference is taken from the individual’s point of view but when we consider Pettit’s condition in the wider context of government control it affirms that the government’s non-arbitrary interference must track the welfare and shared interests of its people, and ignore those of the powerholder (Pettit, 1997). With the government’s great power comes the potential for arbitrary interference, but it can be reduced by “requiring government to follow certain parliamentary procedures or to meet certain legal conditions in the way they act” (Pettit, 1997. P57). Additionally, by installing penalties for any agent who proceeds to interfere arbitrarily, especially in a criminal way.
A balance must be struck between dominium and imperium, where dominium is reduced without imperium increasing. To ensure the validity and stability of the government and their powers, the institutions and schemes created by the laws should be unmanipulable by individuals or a collective. To strike this balance, Pettit (1997) recommends “the empire-of-law condition” (Pettit, 1997. P174), in which “laws should assume a certain sort of shape” (ibid.). The condition requires laws to have certain constraints and be applicable to all, including the law makers themselves. They must be comprehensible, unwavering, and be common knowledge amongst the populace. These requirements are intended to minimise the room for arbitrary rule. The second requirement of the “empire-of-law condition” dictates that, assuming the first requirement is fulfilled, a government should always choose to act on a legal basis and follow the rule of law rather than making decisions on a partial and ad hoc basis (Pettit, 1997). This requires that members of government themselves must be subject to data surveillance as they will not be exempt from the relevant laws. This condition ensures that the government acts in a principled way that is in line with the rule of law, by conforming to the strict protocols when it comes to “the arrest, accusation, and adjudication of those believed to have committed a crime” (Pettit, 1997. P175). However, Pettit also recognised that government agents must be allowed to act with a certain amount of discretion in particular situations, as making the law too rigid and complex “would almost certainly undermine the capacity of government to do much good in the furthering of the republican aims” (ibid.).
In the fight against the government’s imperium, consent and disputability are two crucial weapons and can be used to mitigate the severity of any domination suffered by the public. In the power-holder’s arsenal, Pettit highlights the “rise of the doctrine of free contract” (Pettit, 1997. P62) which allows for the dominator to not only decide whether to enter the contract but also to decide on the terms of the contract with the excuse that “a contract that was not actively coerced was free” (ibid.). Consent alone is a weak barrier to domination and requires that the people have the power to contest these contracts and laws. The ability to contest laws helps to protect against not only abuse of power by the government but also the possibility of majority rule, which may seem consensual in nature but can result in the domination of the minority.
Applying Republican theory to data surveillance laws
Data surveillance policies are often created without requiring the public’s consent, so providing a facility for citizens to opt-out of data monitoring would defeat the point of the policy, as many would likely choose to opt-out. Therefore, the options for protecting one’s data from monitoring are limited and naturally makes encryption technology – and applications which implement it – more attractive, especially to more technically proficient individuals. Virtual Private Networks (VPNs) are also commonly used to hide one’s IP address as such tools create an encrypted tunnel between you and a remote server held by the VPN service, so the IP address that the data originated from is hidden when your data exits the server at the other end. This masks the identity and location of the sender, rendering the data useless to the government. Tools like these are becoming increasingly popular and accessible, forming the backbone of efforts by citizens to maintain control over their data.
It could be argued that if an individual is not actively forced or coerced into using internet-connected devices such as tablets, smartphones etc., they could protect their privacy by giving up these devices altogether. Consequently, if these surveillance laws are common knowledge, then the decision to use such a device could be perceived as providing implicit consent to one’s data being monitored by the state. However, in an increasingly digitally interconnected age, especially in the Western world, avoiding the internet is almost an impossible task. The UK government, in 2010, pursued the coercion of its citizens into using, if not depending on, the internet. The Conservative-Liberal Democrat coalition government planned to change the application process for important government services so that they could only be applied for online, including school applications, driving licenses and benefits. The plans would affect millions across the country and were promoted as a cost-cutting measure due to print applications being “prohibitively expensive” (Asthana & McVeigh, 2010), according to Cabinet Office officials. These types of plans, touted under the banner of modernisation and cost-cutting, give people no choice but to connect to the internet passively submit their data for collection.
The methods for contesting data surveillance laws, such as the IPA, are limited when basic options like withholding consent are unavailable to individuals. While protests and online petitions are an option, the public must largely rely on activist organisations to voice their concerns and hold the government to account via court when it comes to issues such as these. In the short time it has existed, the IPA has garnered a wealth of controversy and continues to be challenged. In November 2016, an online petition was created by Tom Skillinger (2016) to repeal the IPA, receiving over 200,000 signatures, before being closed in 2017 without it being debated in Parliament. The government dismissed the petition – and their democratic responsibility to debate it – by claiming that the IPA “protects both privacy and security and underwent unprecedented scrutiny before becoming law.” (Skillinger, 2016). Another, stronger, challenge came from the human rights organisation Liberty who crowdfunded £50,000 for the legal actions they were taking against the Act (Liberty n.d.). They argued that “these ‘bulk powers’ violate rights to privacy and freedom of expression, and there are insufficient safeguards in the Act to protect confidential journalistic sources and legal material.” (Liberty n.d.). The High Court of Justice decided in 2018 that the Act “was incompatible with EU law in the way that it allowed state agencies to access data held by telecommunications operators” (ibid.) and required the government to amend the legislation by 1st November 2018 (Cobain, 2018). These amendments arrived on 31st October 2018 in The Data Retention and Acquisition Regulations 2018 and required authorities to “consult an independent Investigatory Powers Commissioner before requesting data” (‘Investigatory Powers Act 2016’, 2021). However, a loophole was created whereby rapid approval could be acquired internally without authorisation by an independent adjudicator, but the access to the data would expire within three days (The Data Retention and Acquisition Regulations 2018. 2018.). It is unclear which situations allow for this loophole to be utilised, meaning that access to, and use of, the public’s data could still be relatively arbitrary, to an extent. This weakens the data protections contained within the Act, but the High Court, in 2019, responded to Liberty’s original claims, by determining that the bulk powers “don’t breach privacy and free expression rights” (Zubbizareta, 2019), and that the Act provides sufficient safeguards for communications within the legal and journalism sectors. Liberty continue to challenge the bulk powers afforded to the government by the IPA, based on EU law, and predict that they will return to the High Court in 2022 (Liberty n.d.).
These contestations highlight the need for safeguards against abuse of these powers and help to prevent the chances of arbitrary interference by the government or its agencies. Whether particular government interference is arbitrary depends on whether the act committed by the potential perpetrator follows the interests of the individual or group, but this depends on the beliefs of the group about what their common interests are. One individual may view data surveillance as invasive, even unnecessary, while another may see it as valid protection and a worthy sacrifice of their privacy for ‘the greater good’. Privacy is a legal right as it is “recognised as a human right in both the Universal Declaration of Human Rights (Article 12, 1948) and the European Convention on Human Rights (Article 8, 1950)” (Macnish, 2017. P30), but whether it is a moral right and a birth right is still up for debate. The moral right to privacy considers the collective human race, but individuals will differ in the amount of value they put on privacy. For example, the “if you’ve got nothing to hide then you’ve got nothing to fear” argument, commonly levelled at privacy advocates, implies that one who follows the law to the letter does not need to place a high value on privacy as they have nothing to hide from the powerholders. However, this basic argument is generally based on a single moment in time and means they have nothing to hide right now. It does not acknowledge that the legal goalposts can be moved by the government and a comment an individual may have innocently made in the past may now or soon be outlawed. For example, an individual may send a private message to a friend over Facebook messenger expressing their support for the environmental activist group Extinction Rebellion or state their intention to join the group’s next protest. At any moment, the government could decide to add Extinction Rebellion to their ‘List of proscribed international terrorist groups’ (Home Secretary, 2021). A group is added to this list if it meets several conditions, including “commits or participates in acts of terrorism” (ibid.) with one of many actions that the government defines as ‘terrorism’ being “serious damage to property” (ibid.). At Extinction Rebellion protests, protestors regularly spray paint and “sticker bomb” public buildings and statues, which could qualify as being serious damage to property. Therefore, the government could decide to class them as a terrorist group and, consequently, monitor any vocal supporters of the group online. The previously innocent civilian could become classed as an affiliate of the terrorist group or a promoter of their ideology, subjecting them, their friends and their family, to greater scrutiny and justifying the obtainment of warrants to intercept their more detailed data. This data would reveal the content of their messages, in addition to the metadata describing the location of the sender, the time the messages were sent, and which devices or IP addresses received the messages. All of this would be carried out without the individual’s awareness.
While I have presented the argument from an individual’s point of view it is also important to consider the collective point of view. A percentage of the electorate may agree that a group such as Extinction Rebellion should be classed as a terrorist group due to their actions, and that members and supporters of the group should have their privacy invaded to protect the wider society from their behaviour. However, the example I have used displays how much power the government has and why there need to be restraints placed on it. These powers can be used to further invade the privacy of individuals, resulting in greater limits on our freedom of speech and our right to protest, and thus making it more difficult to contest laws and hold the government to account. The values we collectively place on different types of privacy may change over time due to cultural and societal values (e.g., in Victorian times it was considered offensive for women to show any leg above their knees). However, we all value privacy to some extent, as proven by the fact that most people have window coverings of some kind in their homes (Macnish, 2017). Additionally, whether our interests are adhered to depends on what our interests are deemed to be, and who decides what they are. There was no referendum on the creation of the IPA and the public were not consulted, so the “interests” of the people were effectively decided by the ‘democratic’ British government. The government evidently considered society’s security to be more valuable and relevant than its privacy.
Pettit’s ‘Empire of Law’ condition requires that the IPA applies to the government, meaning that communications data produced by politicians and law enforcers must also be intercepted and retained. The Conservative Party, who have held power in the UK government since 2010, opted to avoid this invasion of privacy by adopting the ‘Signal’ messaging app for their party communications, moving away from the Facebook-owned ‘WhatsApp’ app. ‘Signal’ is a popular app amongst privacy advocates and activists due to its end-to-end encryption, which prevents anyone except the sender and receiver from seeing the messages, including the government and ‘Signal’ themselves. The app also allows for the deletion of messages after a chosen period; an attractive feature for politicians who have recently had their ‘WhatsApp’ group chat messages leaked to the media (Waterson, 2019). The irony of the government’s desire for privacy while partially removing that right from the public privacy has only increased the public’s detestation of the IPA.
Regarding the ‘Empire of Law’ condition, which concerns the reach of the law, the IPA currently permits over 40 authorities “to access Internet connection records without a warrant” (Investigatory Powers Act, 2021). Many of these are clearly associated with crime prevention and counterterrorism (i.e., GCHQ and the Ministry of Defence), but the need for other groups to enjoy similarly privileged access is more questionable: the Department for Work and Pensions, HM Revenue & Customs, and the Food Standards Agency, to name a few (ibid). The dispersal of access to such broad and revealing data weakens the government’s argument that the IPA is needed to protect the country as it is unclear why such a variety of groups require access to the country’s private communications data. These relatively peripheral groups could provide background details in criminal cases but the fact that they do not need a warrant to access such sensitive data feels like a desire to make the process more convenient while stretching the boundaries of the IPA’s powers.
In the context of Negative freedom
In the 17th century text, Leviathan, the 17th century philosopher Thomas Hobbes (1985), a free man, in the Negative tradition, is defined as being “he, that in those things, which by his strength and wit he is able to do, is not hindered to doe what he has a will to” (Hobbes, 1985. P128). In modern English, this means that “the extent of your individual liberty depends on the extent to which the performance of actions within your powers is or is not physically or legally constrained” (Skinner, 1998. P79). Hobbes saw the law as always being an invasion of people’s liberty, regardless of its benevolence, and freedom as existing only “in the silence of the laws” (Pettit, 1997. P34) which we take as referring to the gaps where actions are not regulated by the law. Therefore, one’s freedom remains the same whether they live under a despotic regime or a republic, depending on the extent of the laws, because each are governed by law, thus automatically rendering them unfree. This view of freedom as non-interference provides an uncompromising perspective that does not account for whether the interference is arbitrary and whether it benefits the recipient.
Modern conceptions of Negative freedom view the amount of one’s freedom as being relative to the possibility of the dominant agent interfering with them. In opposition to this, those who advocate for Republican freedom consider one to be unfree if they are at the mercy of a master, regardless of the possibility of interference (Carter et al, 2007). However, interference does not always have to result in domination. If the interference is not enacted on an arbitrary basis, so that it seeks to further the individual’s interests and is in line with their preferences, the recipient is secured against domination. To ensure that the actions are not carried out arbitrarily or violate the individual’s wishes, they must be subject to punishment or a penalty. Consequently, the relationship will not be one of domination but one in which an individual has permitted an agent (be they an individual or a government) to act on their behalf, as and when required (Pettit, 1997).
Believers in freedom as being the achievement of non-domination, instead of non-interference, are less concerned with government intervention and more invested in eradicating “the social ills that the state ought to rectify” (ibid., 148). Consequently, Republican theorists do not see the government as being severely dominating if its power and interference is constrained. By ensuring that the agent committing the interference “is forced to track [the subordinate’s] interests and ideas” (ibid., 65), the exertion of absolute power over an individual is prevented. This kind of non-dominating interference is regularly exercised by the government and police whose actions are subject to rebuttal and punishment, according to the law. Pettit (1997) uses the issue of taxation to show the difference in scepticism of the government between those who believe in freedom as non-interference (Negative theorists) and those who believe freedom to exist in the achievement of non-domination (Republican theorists). Negative theorists are likely to view taxation as restricting people’s Negative freedom as it interferes by limiting the amount of money remaining for individuals, whereas Republicans concerned with non-domination will not see taxation as a wholly negative policy if it is implemented under a democratic government (so the public can vote the ruling party out if needed), and if it tracks the public’s interests (i.e., taxes will be used to pay for roads, schools, hospitals etc.) (Pettit, 1997). Data surveillance policies are similar to taxation policies in their extractive nature, as they extract data from citizens and use it to prevent crimes and increase the security of the population. But, as with taxation policies, there is potential for the power to be abused, and the public will not have direct control over what their data is used for.
‘In certain choices’
The third contributor to domination, as Pettit understands it, is the ability for one to interfere “in certain choices that the other is in a position to make” (Pettit, 1997. P52). The implication is that one is being dominated in a particular area of their life but may not be dominated in all areas of their life, at least, not to the same level. This is a key point, as being dominated in some areas of life will be more damaging than others. For example, an employer might dominate their employee in the workplace, but the domination may not extend to their home. On the range and intensity of the domination, Pettit says it is “better to be dominated in fewer areas than in more” (ibid., 58).
Applying Republican theory to data surveillance laws
In an age where 92% of the UK recently used the internet (Prescott, 2021. P2) and 84% of adults in the UK own a smartphone (Boyle, 2020.), access to the online world is an increasingly crucial part of daily life in the modern, Western world. The majority of the ten most downloaded apps in the UK in 2020 are a messaging or social media app or offer a private messaging function (Curry, 2021). Of these, ‘WhatsApp’ is the most popular messaging app for 18–64-year-olds (Kunst, 2020). The content of the data being shared across these apps can range from friends making dinner plans, to someone confiding suicidal ideations. It can range from the banal to the intimate, sometimes within one conversation. At this juncture it is important to clarify that the UK’s Investigatory Powers Act (2016), section 261(6), asserts that the warrantless interception is solely focused on the metadata attached to the communication, including the sender’s and receiver’s IP addresses, and the time it is sent and received (UK Government, 2020. P65). Therefore, the content of the messages is not intentionally captured without a warrant. Nonetheless, this exemplifies the need to include both technical and procedural restrictions to protect citizens from domination by the government and their data surveillance policies. Without these restrictions, the content would be available for all the approved agencies to access at will, with no consideration for the sensitive nature of the data. In short, one would be dominated in any area of their life that they voluntarily share online.
Messaging apps providing secure, end-to-end encrypted communications are eagerly adopted by extremist and terrorist groups as the messages can only be viewed by the sender and the recipient. Subsequently, the government began creating policies to clamp down on the use of VPNs, and on end-to-end encryption methods being employed by technology companies. Most recently, Home Secretary Priti Patel attacked Facebook’s inclusion of encryption in its messaging service, that is already included by default in its ‘WhatsApp’ messenger app, claiming that the encryption methods would hamper current efforts to combat online child abuse as it prevents anyone except the sender and receiver from seeing the content of the messages. She did, however, insist that “the government does support encryption, where of course companies can protect users’ privacy” (Volpicelli, 2021), but that it needs to remain “consistent with public protection and child safety” (ibid.). The argument for the government to have ‘back door’ access to encrypted apps to protect children is identical to their argument for laws like the IPA to provide bulk interference powers to prevent terrorist attacks. Patel’s argument appeals to society’s general abhorrence of child abuse while capitalising on the mistrust many people have in Facebook due to their multiple privacy scandals over the last few years. Policies that demand exclusive access for the government to social media sites and messaging apps will become increasingly common across the Western world in years to come, as encryption methods are one of the quickest ways for civilians to limit the areas of their lives in which they are dominated by the government. The increased use of encryption methods by the public is to be expected when they value their privacy but are not given the choice to opt-out of having it invaded.
When citizens are subject to constant, non-consensual surveillance, and any tools to preserve their privacy are also being outlawed, they are essentially digital prisoners. Data surveillance policies, particularly those without in-built constraints, become akin to a panopticon. Devised in the 18th century by English philosopher Jeremy Bentham, a panopticon is a style of prison consisting of an observation tower placed in the middle of a circle of prison cells, enabling the convenient surveillance of all prisoners, with or without their knowledge, by a single security guard (‘Panopticon’, 2021). Like the inmates, the possibility of being watched compels the person whose data is being monitored to modulate their own behaviour. Since its creation, the ‘panopticon’ has permeated political regimes and dystopian literature, in both literal and metaphorical forms, from fascist Spain and Nazi Germany to Yevgeny Zamyatin’s ‘We’ and George Orwell’s ‘1984’. For example, Zamyatin’s’ ‘We’ imagines a society where people live in literal glass houses and can observe each other constantly (Macnish, 2017).
Bentham’s and Zamyatin’s examples of surveillance are categorised as “surveillance as control”, while forms of surveillance, like hospitals and schools, are “surveillance as care” (Macnish, 2017). Defining the form of surveillance one is subject to partly depends on the number of areas in which one is dominated or one’s choices are interfered with. When we use messaging apps to freely express our thoughts, fears, hopes, and opinions, we do so assuming that it will not result in humiliation or punishment. This allows us autonomy and freedom to explore our true selves by experimenting and exploring (ibid). But when one knows that their messages are being monitored, especially by the government, they will self-consciously self-censor both their messages and, eventually, their own thoughts.
In the context of Negative freedom
The aforementioned Hobbesian conception of Negative freedom views any interference as leading to unfreedom, regardless of how many areas of one’s life may or may not remain untouched. To contemporary Negative theorists, who believe that one’s unfreedom is relative to the possibility of interference, how many areas of one’s life are interfered with is almost irrelevant as any interference results in unfreedom. Regardless, if an individual is not partaking in any criminal activity online then, theoretically, the likelihood of the government physically interfering with them (i.e., by arresting them) using the data they have intercepted is low.
While data surveillance policies primarily affect one’s digital life, it has been previously demonstrated how these policies can impact on many other areas of one’s life offline and can lead one to self-censor their online interactions as the government’s lingering presence is felt every time one sends a private message. Depending on the content of the online messages being sent, an individual may feel the need to disguise aspects of their identity, for example, their political opinions, their mental and physical health issues, or their sexuality. Republicans recognise that the lack of government interference could be temporary, and it is their permanent capacity to interfere that needs to be restricted. Negative theorists, however, will see no need for this until there is actual interference.
Certain activities that one pursues are only available because the government has provided for either made provisions or withheld punishment for them (e.g., a democratic voting system, gay marriage, the right to protest), but Negative and Republican theorists differ on the appropriate level of state action. Negative theorists concerned with non-interference will worry less about an employer’s potential for interference if the employer is uninterested in interfering. Meanwhile, Republicans view the possibility of arbitrary interference as dominating and are more enthused about making drastic changes. Therefore, Republicans intend to reduce all sorts of domination (by other countries or malicious individuals), not just state domination, leading Pettit to ask, “does this mean…that republicans generally favour big government?” (Pettit, 1997. P147). Republicans naturally prefer a style of government that delegates responsibilities to the law and the state, but they are against a government that empowers authorities to exercise a large amount of power at their own discretion. They will always insist on controls being placed on these powers, as Pettit has mentioned before when he spoke of the need for laws to be contestable by the people. Therefore, the government needs to reduce domination over people’s private dominium while also preventing a similarly dominating version of imperium. He posits that, while government should have several responsibilities to its people, it should not have a large number of powers (Pettit, 1997).
The aim of this essay was to identify how government data surveillance powers can become unjustifiably dominating and to suggest ways in which that can be moderated or prevented. These powers were placed under the lens of Pettit’s three conditions to determine whether they create a dominating relationship between a government and its citizens. To predict the realistic effects of this surveillance, the subject was further examined from both the individual’s and the government’s perspectives, as they are both effected by it differently. The theme of ‘dominium versus imperium’, and ‘security versus privacy’, runs through this essay as they are intrinsic to the creation and analysis of democratic policies and laws. The views of Negative theorists were interspersed throughout as their perception of freedom contrasts with Republican freedom, thus placing government data surveillance and its resulting effects on a populace in an alternative light.
Data surveillance laws allow the government access to an extraordinarily broad amount of the public’s data while simultaneously increasing their capacity to interfere with the public. Without at least minimal restrictions on which data can be collected, which agencies can access it, and how long it is stored for, it becomes open to abuse by individuals and the government itself, thus resulting in domination. Legislation such as the IPA has set a dangerous precedent for intrusive laws that will likely be followed by laws that increasingly, and severely, impact our privacy. We have seen this already in the way that RIPA has developed into the IPA. Once these rights are lost they are very difficult to retrieve, so every slide down the slope toward a total loss of privacy must be fiercely fought.
The public perception of this form of government domination will be partly determined by whether the laws are seen as tracking their interests. Although the laws are intended to prevent terrorist attacks, the amount of privacy sacrificed by the general population may not be proportionate to the number of crimes the data helps to prevent. As it is within the government’s power to determine what constitutes a “crime” they can move the definitional boundaries to outlaw activities that they deem disruptive or dangerous (e.g., protests and online comments which oppose governmental actions). The types of data surveillance laws discussed in this essay will aid them in suppressing these “crimes” and to prosecute the previously-innocent. In the long-term, this represses free speech and coerces the public into self-censorship.
To identify and limit the potential for arbitrary interference it must be determined what the collected data is used for, how it is accessed, by whom, and the severity of the punishments for abuse of the data. When these controls are not implemented it leaves the public’s data open to abuse by individuals and the government itself. Equally important is ensuring that the government are not the sole party responsible for determining these controls. There must be independent agencies that contribute to the creation and development of laws such as these to contest the government when needed. Additionally, the agents providing warrants for access to the data should be external and independent from the government.
One possible solution for bringing surveillance in line with privacy is to make the severity of the data surveillance relative to the current UK terror threat level. For example, if the threat level is at ‘Code Red’ all messaging apps, emails and phone calls will be monitored, but if it is at ‘Code Amber’ then the surveillance will only monitor social media and information in the public domain. Although, the threat level may be low due to the lack of information that law enforcement have access to, preventing them from carrying out investigations into potential suspects and missing a larger number of threats. Since the threat level is largely set by the government and the process to decide on the level is opaque, this solution does little to diminish the government’s dominance and increase Republican freedom.
When creating a non-dominating data surveillance policy there must be an ability for the people being monitored to consent or dissent from the surveillance, or to contest the law and have their opinion acknowledged. The IPA enables the government to dominate its citizens as it was created without direct public consent and, as has been proven in this essay, any tools or routes to contest or circumvent the law are becoming constricted and eliminated by additional policies. A law that affects our human right to privacy should require public consent in the form of a referendum. If a referendum had been held on the matter, the IPA would have likely been voted for by the population, due to the currently heightened fears around extremism, and the widespread assumption that if one has nothing to hide, they have nothing to fear. In turn, the government would have retained their democratic credentials and citizens would feel as though they have a say in the direction of their country. When the population is subjected to data surveillance without their consent, they have essentially been automatically classed as a criminal, and given the equivalent of an electronic tag and a sentence that expires only when the individual ends their digital life. Regarding the IPA specifically, the law can only be contested by waiting until the next election to vote the incumbent party out entirely (and hoping the incoming regime reverse the law), or by depending on activist groups to contest the law in court, post factum. Protests are a common way for the public to have their voice heard, but as protests become further limited by the law, that route swiftly becomes more challenging before being blocked altogether.
To ensure that data surveillance laws are not dominating, according to Republican freedom, the public should be able to opt-out of the surveillance but, as a compromise, the process to do so should be costly and require the same documents that we provide to attain a driving license. The government could work with Internet Service Providers (ISPs), such as BT and EE, to create more expensive contracts that include encryption services on all their data. This “solution”, however, commodifies privacy and increases the inequality between rich and poor, as the rich will be able to pay for greater privacy while the poor will have no choice but to sacrifice their privacy.
There is also a need for greater transparency, perhaps an individual account online for each individual where they can see which of their data was collected and when. To bolster the justification for data surveillance, an annual report on the use of these laws should be published for public consumption. The public deserves to see, for example, how many times a specific data surveillance law was cited in an arrest, which agencies requested warrants, and how many incorrect arrests were made. To acquire a deeper understanding into how the public’s data is protected, once intercepted and stored, there also needs to be information on any abuses of these powers, and on the severity of the punishments resulting from investigations into every incident.
When the government’s capacity to interfere stretches across every area of one’s digital life, and with limited options for contesting this capacity, it is only natural that people would resort to defending their privacy through the adoption of tools such as encrypted messengers and location-obscuring VPNs. The government’s desire to outlaw privacy-protection techniques removes another way for the public to preserve their freedom and feels like a further decline from democracy to autocracy.
’26 terror plots have been foiled since 2017 Westminster attack, minister reveals’, 2020, Sky News, 22 June 2021, Retrieved: 6 June 2021, from: https://news.sky.com/story/25-terror-plots-have-been-foiled-since-2017-westminster-attack-minister-reveals-12012317
Anderson QC, D. 2015. A Question Of Trust Report of The Investigatory Powers Review. [Accessed 2 June 2021] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/434399/IPR-Report-Web-Accessible1.pdf
Asthana, A., & McVeigh, T. (2010). Government services to be online-only. The Guardian. Viewed 15 June 2021 https://www.theguardian.com/society/2010/nov/20/government-services-online-only
Bartlett, J. 2015. Orwell versus the Terrorists. Cornerstone Digital.
Berlin, I., 1997. Four essays on liberty. Oxford: Oxford Univ. Press.
Boyle, M. 2020. Mobile internet statistics. Finder. Viewed 6 June 2021 https://www.finder.com/uk/mobile-internet-statistics
Breen, K. and McBride, C., 2019. Exploring Republican Freedom: Freedom and Domination. 1st ed. New York: Routledge.
Burgess, M., 2017. What is the IP Act and how will it affect you?. Wired Magazine, viewed 14 June 2021, https://www.wired.co.uk/article/ip-bill-law-details-passed
Carter, I., Kramer, M. and Steiner, H., 2007. Freedom. Malden, MA: Blackwell.
Cobain, I. 2018. UK has six months to rewrite snooper’s charter, high court rules. The Guardian. Viewed 16 June 2021. https://www.theguardian.com/technology/2018/apr/27/snoopers-charter-investigatory-powers-act-rewrite-high-court-rules
Curry, D. 2021. Most Popular Apps (2020). Viewed 6 June 2021 https://www.businessofapps.com/data/most-popular-apps/
Hale-Ross, S., 2019. Digital Privacy, Terrorism and Law Enforcement. Oxon, Routledge.
Hale-Ross, S. and Lowe, D., 2019. Terrorism and State Surveillance of Communications. 1st ed. New York: Routledge.
Hansard HC Deb. cols. 22-25, 24 March 2016. [Online]. [Accessed: 5 June 2021]. Available from: https://publications.parliament.uk/pa/cm201516/cmpublic/investigatorypowers/160324/am/160324s01.htm
Hobbes, T., 1985. Leviathan. London: Penguin Classics.
Home Secretary. (2021). Proscribed terrorist groups or organisations. Retrieved from: https://www.gov.uk/government/publications/proscribed-terror-groups-or-organisations–2/proscribed-terrorist-groups-or-organisations-accessible-version (Accessed: 11 August 2021)
‘Investigatory Powers Act 2016’ (2021) Wikipedia. Available at: https://en.wikipedia.org/wiki/Investigatory_Powers_Act_2016#Authorities_allowed_to_access_Internet_connection_records (Accessed: 14 June 2021)
Laborde, C. and Maynor, J., 2008. Republicanism and political theory. Malden, MA: Blackwell.
‘List of terrorist incidents in Great Britain’ (2021) Wikipedia. Available at: https://en.m.wikipedia.org/wiki/List_of_terrorist_incidents_in_Great_Britain (Accessed: 6 June 2021)
Liberty n.d. Legal challenge: Investigatory Powers Act, viewed 16 June 2021, https://www.libertyhumanrights.org.uk/issue/legal-challenge-investigatory-powers-act/.
Locke, J., (1960). Two Treatises of Government. Cambridge: Cambridge University Press.
Kunst, A. 2020. Which messenger services do you use regularly? Statista [viewed 6 June 2021]. Available from: https://www.statista.com/forecasts/997945/messenger-usage-by-brand-in-the-uk
Macnish, K., 2017. The ethics of surveillance. 1st ed. New York: Routledge.
‘Manchester Arena bombing’ (2021) Wikipedia. Available at: https://en.wikipedia.org/wiki/Manchester_Arena_bombing (Accessed: 11 August 2021)
McKay, S., 2017. The Investigatory Powers Act 2016. Oxford: Oxford University Press.
Ministry of Justice. (2015). Revenge Porn: be aware b4 you share. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/405286/revenge-porn-factsheet.pdf (Accessed: 12 August 2021)
Montesquieu, Charles De Secondat., 1989. The Spirit of the Laws, tr. and (ed.) A. M. Cooler, B. C. Miller, and H. S. Stone (Cambridge: Cambridge University Press).
‘Panopticon’ (2021) Wikipedia. Available at: https://en.wikipedia.org/wiki/Panopticon (accessed 11 August 2021)
Parvin, P. and Chambers, C., 2012. Political philosophy. [New York]: McGraw-Hill Companies.
Pettit, P., 1997. Republicanism. USA: Oxford University Press.
Prescott, C., 2021. Internet users, UK: 2020. Available from: https://www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2020 [Accessed 6 June 2021]
Sharpe, S. 2019. National Security, Person Privacy and the Law: Surveying Electronic Surveillance and Data Acquisition. Oxon: Routledge
Skillinger, T. (2016). “Petition to Repeal the new Surveillance laws (Investigatory Powers Act).” Available from: https://www.telegraph.co.uk/technology/2016/11/28/petition-repeal-uks-new-surveillance-powers-reaches-100000-signatures/ [Accessed 16 June 2021]
Skinner, Q (1998). Liberty before Liberalism. Cambridge: Cambridge University Press
Snowden, E. 2019. Permanent Record. New York: Macmillan
The Data Retention and Acquisition Regulations 2018. 2018. UK Government. Viewed 16 June 2021. http://www.legislation.gov.uk/uksi/2018/1123/made/data.htm
The Right to Privacy and Why It Matters (2015). Available at: https://eachother.org.uk/the-right-to-privacy-and-why-it-matters/#:~:text=Privacy%20is%20a%20fundamental%20human%20right.&text=It%20is%20important%20to%20know,to%20be%20necessary%20and%20proportionate (Accessed: 12 August 2021)
UK Government n. d., Terrorism and national emergencies, viewed 6 June 2021, https://www.gov.uk/terrorism-national-emergency
UK Government, 2020. Investigatory Powers Act 2016. UK Legi Editions.
Waterson, J. 2019. Tories switch to messaging app Signal after Whatsapp leaks. The Guardian, viewed 14 June 2021, https://www.theguardian.com/politics/2019/dec/17/tories-switch-to-messaging-app-signal-to-curb-whatsapp-leaks
Volpicelli, G. 2021. The Home Office is preparing another attack on encryption. Wired. Viewed 17 June 2021, https://www.wired.co.uk/article/uk-encryption-facebook-home-office-nspcc
Zubbizareta, T. 2019. UK High Court rules for government in Investigatory Powers Act case. Jurist. Viewed on Wednesday 16 June. https://www.jurist.org/news/2019/07/uk-high-court-rules-for-government-in-investigatory-powers-act-case/