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RADIO
4
CURRENT AFFAIRS
ANALYSIS
PROTECTING PRIVACY
TRANSCRIPT OF A RECORDED
DOCUMENTARY
Presenter: Frances Cairncross
Producer: Chris Bowlby
Editor: Nicola Meyrick
BBC
White City
201 Wood Lane
London
W12 7TS
020 8752 6252
Broadcast Date: 05.08.04
Repeat Date: 08.08.04
Tape Number:
Duration:
Taking part in order of appearance:
Saul Klein
Former Adviser on privacy protection at Microsoft
Jonathan Bamford
Assistant Information Commissioner
Caolfhionn Gallagher
Privacy Lawyer with Liberty
Peter Swire
Law Professor at Ohio State University
Former Privacy Adviser to Bill Clinton
James Harkin, writer and researcher on social trends
Alistair Crawford
Chief Executive Officer of 192.com
CAIRNCROSS: Got your mobile phone switched
on? If so, then somewhere there is a stranger who knows where you are.
The electronic networks that link us together in so many convenient
ways also peer into our lives even when we don.t realise it.
KLEIN: The way it is is that you are being
trapped, you are being monitored, you are being watched. And
technology has the ability not just to do all of that but, nowadays, to do
it in a way where all of that data can be stored and managed and
manipulated at incredibly low cost; and not just by government any
more, but by private companies as well.
CAIRNCROSS: Saul Klein knows lots about what
technology can do: he used to advise on privacy protection for
Microsoft, the world.s biggest software company. All this tracking,
monitoring and watching is a thriving commercial business.
Government does it too and this has enormous consequences for
people.s privacy. Jonathan Bamford is Assistant Commissioner for
Information, which means that his job is to help the British government
think about how technology affects privacy. How valuable is it?
BAMFORD: It.s something that people cherish.
I think it.s something that we do need to safeguard. I think it.s
important to recognise that privacy, rather like trust and confidence -
once you.ve lost it, it.s very, very difficult, if not possible, ever to
regain. It.s something we need to work hard not to lose in the first
place.
CAIRNCROSS: One of the most powerful symbols
of intrusion into privacy has been the ability of the authorities to watch
over us. In that sense, George Orwell.s Big Brother is alive and well,
and gleefully acquiring all the latest gadgetry. There are close-circuit
television cameras on almost every street corner, speed cameras, and
cameras that monitor people entering London.s congestion charging
zone. Caoilfhionn Gallagher is a lawyer with Liberty, a campaigning
group on civil liberties, and follows the latest monitoring technologies.
What are her current concerns?
GALLAGHER: The first one would be a very high
tech new
x-ray system that.s been developed and it.s being rolled out across the
UK. And essentially what it involves is a virtual strip search. And
people are unaware that it.s happening, which is of course the problem
with a lot of these technologies . that while people.s rights are being
invaded, they.re actually unaware of it, which is extremely unusual.
But it.s a virtual strip search without any of the safeguards that
accompany a traditional strip search. And another good example would
be a US one, which is thermal imaging technology; and thermal
imaging technology can monitor from the outside of a building how
heat is generated within the building. While that might sound quite
mundane, it.s been used for law enforcement purposes in the US to
check up on houses where it.s suspected that cannabis is being grown,
for example. If cannabis is being grown, there.ll have to be very high
heat lamps being used. And what US law enforcement have started
doing is using that imaging to monitor a suspect.s house without
actually going and getting a search warrant or going through any of the
traditional safeguards.
CAIRNCROSS: But it.s not just officials who use
new kinds of hi-tech spying in special circumstances, to keep watch at
airports or on potential crooks. Every day, in myriad small ways, people
give up some privacy. One of the latest intrusions is the camera phone,
which allows a stranger to photograph you and send your picture to
somebody you have never met without your knowledge. Is this a new
threat, or merely an extension of an old one? Peter Swire, a professor at
Ohio State University, who advised President Clinton on privacy issues.
SWIRE: The big threat of the camera has
been a big issue, but it was really a big issue about 1895 and that.s
when Justice Brandeis, who later became Justice Brandeis, wrote his
Right to Privacy article in the United States. He was worried about the
cameras that were being used to look at the upper class people in
Boston, and he thought this was a terrible threat that people walking
down the street or being in their back garden could be taken pictures of
by these cameras. The conclusion he came to is that we needed to have
legal protections for privacy and called that The Right of Privacy,
which he later called .the most precious of rights, the right to be let
alone.. But then in the last period of years, we.ve really tried to figure
out what it means to have information privacy or data privacy or what
in Europe.s often called data protection. And I think the issues you.re
asking about are really what about this data protection, how are we
going to come up with new rules for our electronic age?
CAIRNCROSS: What is different about this
electronic age is the way that ever more powerful computers can
process not just your image but also all kinds of other personal details.
Your name and sometimes your face is already on any number of
interconnected databases. When you use a plastic card to make a
purchase, or go to a web site on the internet, or make a phone call, your
movements will usually be recorded. Ring a call centre for a personal
loan, and your name and address will swiftly tell the operator about
your existing debts.
How worried should we be about this loss of privacy? And can it be
halted? Or should it be accepted as the price we pay for enjoying new
technology.s potential to link us instantly with the world around? For
example, mobile phones allow lots of people to reach you . and some
to know where you are. James Harkin wrote a recent report for Demos,
a think tank, called .Mobilisation., in which he celebrated the potential
of life linked into new mobile networks.
HARKIN: I mean it.s already possible,
presumably, for you to pass a local retailer and get an offer of twenty
percent off discount goods. If we could have location best services sent
from local museums, places of historical interest, really all we would be
doing would be completely re-mapping the city.
CAIRNCROSS: I don.t think I want very much to
be telephoned as I.m walking past a store and told there.s a special
offer there. Are there other kinds of service that people are already
using that rely on the fact that somebody knows . the mobile phone
knows where they are?
HARKIN: In Scandinavia and in Japan, you
have services whereby young people can pass along street corners and
they can be automatically hooked up via location based tracking to
someone who meets their personal profile for the purposes of dating or
finding a friend.
CAIRNCROSS: So if Mr Right is just around the
corner, your phone rings and tells you?
HARKIN: Indeed - if you want that, of
course. All of these things have a switch off mechanism, so people
shouldn.t be too afraid of what they might find in a shopping mall.
CAIRNCROSS: All these delights are available
only to those who want them. In Britain, unlike some other countries,
blue-jacking . using a technology called Bluetooth to send unsolicited
messages to mobile phones . isn.t allowed. Companies that want to
send advertisements to your mobile must first secure your consent. We
may be happy to give up a bit of privacy in exchange for finding a
bargain or a boyfriend. But the technology potentially changes not just
our relationship with people who want to sell us things. It could also
change the relationship between parent and child, and between boss and
employee.
Take, for example, the services offered by 192.com, a company whose
main business is directory inquiries, but which is branching out to offer
ways for people to track a mobile telephone on the internet. So a parent
can locate a child, and a boss an employee. Alastair Crawford, founder
of the company, is thrilled by the possibilities.
CRAWFORD: We can track a mobile phone even
if it.s not in use. As long as the phone is on, we can track it every
minute of the day . in rural countryside, in cities. And, for example, in
London we can track it right down to if somebody was in, for example,
Earl.s Court Exhibition Centre, we can know they.re in that building.
In rural countryside, it.s a little bit wide . I mean we.d know what hill
they.re on.
CAIRNCROSS: Now that.s wonderful if you.re a
parent worrying about your child. But another usage is for companies
to track their employees. And I think you suggest it is a way of making
sure that your employee is secure if they are late returning to the office,
but you and I know that what employers really want to know is is the
guy in the pub or is he doing what he.s supposed to be doing.
CRAWFORD: Yeah.
CAIRNCROSS: The employee, presumably,
doesn.t necessarily consent to being on the receiving end of this
tracking system. Isn.t that a bit problematic in privacy terms?
CRAWFORD: Well what we.re doing is we.re
actually sending messages on a regular basis to phones to make sure
they continue to consent. The employee would then receive messages
saying that that phone is being tracked. He needs to know that that
phone would have to be the company.s property, so really you know
another way of looking at it is saying the company has a right to know
where their property is. Obviously this is tracking which is during
office hours, and it.s all been approved by the Information
Commissioner who.s studied it very closely.
CAIRNCROSS: On one estimate, 40,000
employees are now tracked this way.
How far employers can invade the privacy of their employees is an
especially tricky area for debate. The technologies now used in many
workplaces allow all kinds of surveillance. The rights and wrongs are
much less clear-cut in people.s minds than issues about privacy in the
home. Because it.s an area that people haven.t thought about much in
the past, the Information Commissioner.s Office has been working on
new guidelines. So where does Assistant Information Commissioner
Jonathan Bamford think that bosses should draw the line?
BAMFORD: I don.t think that I would
subscribe to the view that when you walk in through the front door of
the office or the workplace in the morning that you give up all your
rights to privacy. There.s no way that an employer should know
everything about your affairs, I don.t think. The question is where.s the
balance struck? If you.re using the employer.s resources for certain
activities, I think it.s right they have some interest and control over
those. If you.re going to damage the reputation of an employer by your
actions in some way, it.s right that they have some interest in that. It.s
where.s the balance struck. I don.t think it.s sensible from either
party.s point of view to foster mistrust and create problems there as a
result of some heavy handed monitoring system.
CAIRNCROSS: Whatever the reservations about
monitoring workers, tracking technology is advancing rapidly. It has all
kinds of potential uses. Minute electronic tags placed in products will
make them . and their users or owners . more traceable in the future.
The government is thinking of using tracking much more extensively to
keep tabs on offenders or perhaps even on asylum seekers. All this,
argues Peter Swire, makes the defence of basic privacy principles in
this area especially important.
SWIRE: To start with an assumption that
tracking is the norm, I think leads to the powerful to remain too
powerful. People start to be chilled in how they feel they can express
themselves, where they feel they can go. If they go to the wrong store
or the wrong neighbourhood now, it.s on their permanent record. I
think that could really affect the sense of freedom in a free society that
we.d like to have.
CAIRNCROSS: An increasing problem in privacy
protection is the blurring between official and commercial information,
as public databases acquire private uses. People who supply
information for one purpose aren.t aware that it might be used for
another. If I want to find out where you live, then even if you are ex-
directory and not in the phone book, you will probably be listed on
some electronic database if you.re on the electoral register, or if you are
a company director who has to register a home address. True, you have
some opportunities to block this kind of searching if you know it might
happen, and you can also discover who has been searching for your
information. But people don.t submit their details to the electoral
register or to Companies House in order to help strangers who want to
track down their address.
Some companies recognise that they need to impose restraints of their
own on the exploitation of customer information. Saul Klein now runs
a DVD rental company called Video Island that does just that.
KLEIN: One thing that is clear to a lot of
companies born in the last ten years is that data and privacy is
predicated on the notion of, one, is informed consent; and, two, the
notion of value exchange is that if you.re asking someone for a piece of
information then you have to be giving them something valuable back
in return. You.ve got to be personalising their experience for them,
you.ve got to be you know sending them an airline ticket, you have to
be performing some kind of a valuable transaction.
CAIRNCROSS: Over at 192.com, Alastair
Crawford is not surprisingly keen to emphasise the valuable
transactions that he has to offer his customers in exchange for their loss
of privacy.
CRAWFORD: People generally you know are not
looking up people for anything other than good reasons. You know
people are looking up old school friends, they.re wanting to check that
you are who you say you are. They.re looking for evidence that
validates the information you.re giving us. So I mean almost all the
applications are good applications. When people remove themselves
from the electoral roll it.s harder to get credit, it.s harder to prove who
you say you are, you know. And why are you doing that? I mean you
know removing oneself from the electoral roll is the sort of thing that
fraudsters do and terrorists.
CAIRNCROSS: But there.s an assumption that if
you want to protect your privacy you must be a fraudster or a terrorist,
isn.t there?
CRAWFORD: Not at all. You know your name
and your address is hard. it.s not private. I mean your name - it.s not
biological data, it.s not sort of your medical files or your private
financial information. You know people get confused between privacy
as in terms of you know what happens inside my house or my bank
records and so on and so forth with you know simply my public label of
who I am and this is where I live. It.s a basic database which the
economy needs in order to function, which people need because people
need to get in touch with people.
CAIRNCROSS: The problem is surely what
happens when information that has always been publicly available, such
as the electoral register, is put on an electronic database. Searching it
becomes immensely fast and convenient. So it.s suddenly available to
many more people, for many more uses than before.
Once a technology exists, it.s tempting to use it. And the uses for a new
technology may not be apparent until some time after it.s been
invented. The astonishing popularity of sending text messages from
mobile phones caught the industry totally by surprise. And only
belatedly did Samsung, one of the big manufacturers of camera phones,
wake up to the fact that they could be used for industrial espionage. It.s
now banned them from its offices.
The response of Scott McNealy, boss of Sun Microsystems and one of
the most outspoken figures of Silicon Valley, to the challenge from
electronic devices was famously blunt. .You have zero privacy,. he
said. .Get over it.. Does Saul Klein, who once worked for Sun.s rival,
Microsoft, share that view?
KLEIN: You know what Scott McNealy
said is completely glib. It.s not a case of get over it. I would say it.s a
case of understand it, engage with it, help to sort of shape the
environment and the implications of it. I think you know the key issue
here is that regulation or regulators. knowledge and understanding of
these issues lags well behind people.s use and technology.s ability to
sort of bring forward some of these issues. What.s happening here is
that people.s access and technology.s ability is moving far faster than
either companies or governments. abilities to shape and regulate.
CAIRNCROSS: Once the astonishing innovation of
recent years settles down and we all grow used to the implications of
electronic novelties, we.ll be better able to think up ways to deal with
the issues they raise. One question much discussed in the high-tech
world is the extent to which electronics can both undermine privacy and
paradoxically protect it. Saul Klein thinks such principles might be
broadened.
KLEIN: In any regulated environment, you
have your private space but you cede elements of access and control to
that private space to other people or to companies or to institutions, and
that.s just the nature of living in a society. What privacy technology.s
allowing you to do is to decide who you want to share that space with.
I think what the internet has created is a sense of personal space that is
not necessarily physical. It.s a space that is remote from you, and that
can be a place where you store your photos on the internet, it could be a
place where you store your e-mail, it could be a place where you store
all your correspondence. And then the question is who do you trust to
help manage or control access to that personal space?
CAIRNCROSS: Does that mean that the protection
of privacy from the activities of nosy companies can safely be left to the
market? Can people be left to choose how far they want to live in the
backwoods and how far to enter the intrusive electronic world?
Jonathan Bamford.
BAMFORD: There.s self-interest for business
and for governments in having the confidence of the people who they.re
doing business with, but I don.t think you can just leave it to chance. I
think we need data protection laws and regulatory bodies like the
Information Commissioner to supervise the legislation to make sure
people comply with it. I think in other areas, such as the US where they
don.t have general data protection laws, you.ve seen companies there
seeing the competitive advantage out of having strong privacy policies.
But I think really we can.t just leave to chance the protection of privacy
as a commercial advantage. I think we need at least a bottom baseline
in data protection law to make sure that privacy.s not just for the
virtuous; it.s actually for those who are required to comply with laws as
well.
CAIRNCROSS: For a regulator, perhaps that.s a
predictable response. But it highlights one regulatory problem: the
different approaches of different countries. The internet has little
respect for national boundaries. But the legal treatment of privacy
varies on the two sides of the Atlantic. Peter Swire has written a book
comparing the European and the American approaches.
SWIRE: The European Data Protection
Directive, which went into effect in 1998, begins with the idea that
basically all data in the commercial sphere, all data that.s being out
there ought to be under a legal regime, and that legal regime has data
protection commissioners . the registrar in Britain and so on. So this
has an idea that there.s a comprehensive legal scheme. In practice, it.s
gone somewhat well, in many instances, but probably lots of individual
companies, lots of individual databases get operated without people
being too darn careful about how they.re complying with the directive.
The American approach has been quite different. There.s been a real
reluctance to pass a comprehensive law. There.s been a fear, a sort of
American laissez-faire approach - a fear that that would be too
regulatory, would get the government too deep into people.s affairs.
CAIRNCROSS: Do people really care about this
issue? Is it something that worries ordinary folk or is it something that
mainly worries campaigning organisations or individuals who.ve had
particularly bad experiences?
SWIRE: I think it worries ordinary folks.
Leading up to the year 2000, the Wall Street Journal did a poll that
asked what Americans feared most in the coming century, and the
answer that got the biggest response, even ahead of global terrorism and
such things, was erosion of personal privacy. And so I think that shows
a widespread concern that somehow our sense of being is under assault
from all these changes. Somehow we need to find ways to balance the
power so individuals have a sense of freedom in the future.
CAIRNCROSS: But today, people worry a lot more
about terrorism than they did in the innocent days of 2000. Since the
horror of 9/11, governments under pressure to fight terrorism are likely
to use any weapon available, including the tracking and monitoring
techniques that the private sector has developed for financial gain.
Does this mean that governments are a bigger threat to privacy than
private companies and their customers? Caoilfhionn Gallagher, privacy
lawyer with Liberty.
GALLAGHER: I think there are very large
distinctions between government privacy issues and corporate privacy
issues. Firstly, with a corporate privacy issue, you have a choice. You
have a choice when you go into Sainsbury.s whether or not to actually
go ahead and get a reward card, and you can weigh up yourself whether
a potential impact on your privacy is worth you getting say a bottle of
wine every three months at a lower price. However, when you.re
dealing with government I think there.s very different concerns because
in relation to government use of this data, the citizen doesn.t have the
same kind of bargaining power that the Sainsbury.s customer does or
that the mobile phone customer does because essentially you.re in a
contract which is binding and from which you can.t escape. And quite
often the expansion into the private lives of citizens, because it happens
in an incremental way and often the information seems quite mundane,
people don.t seem to realise quite what.s happening. It.s a moment of
epiphany in which people realise that there.s a shift from a private
society to a public one and so on, or to a transparent society, but it.s
kind of being nibbled away by degrees.
CAIRNCROSS: And often with popular consent.
The fear of crime, and especially of crimes such as the Soham murders,
creates a clamour for measures that nibble away privacy even further.
When people say, .Nothing to hide, nothing to fear., you know that
they.re trying to justify such measures. What does Caoilfhionn
Gallagher make of these arguments?
GALLAGHER: Obviously the implication of the
theory of nothing to hide, nothing to fear is that privacy is a right which
protects the guilty; privacy is a right which protects Ian Huntley rather
than a right which protects the average, ordinary, law-abiding member
of the public. But I think that that rationale is deeply flawed and that
the average law-abiding citizen does have much to fear actually from
privacy invasion . not because the citizen intends to do anything wrong
or has done anything wrong, but I think that the state should assume
that all individuals have nothing to hide unless it has a specific
compelling reason to believe otherwise.
SEGUE
CRAWFORD: If you look back at the days when
the phone book was first put in payphones in every street corner for
anybody to look in, people were initially shocked at that idea. But
actually this is the difference between perceived fear and real fear and
everybody.s very concerned about eroding privacy. So it.s a very
tough balance and, as we.ve seen in the past, that balance has moved. I
mean five years ago, you could never have tracked a mobile phone; but
then after the Soham murders, you know people now realise that there.s
an enormous demand. Parents want to know where their children are.
If their children don.t come home in the evening, they want to go to the
internet and see where the mobile phone is. It.s completely secure.
Society now demands a new balance. And in future that balance may
change again. We have to just have to be responsive.
CAIRNCROSS: Alastair Crawford.
Others also think that the threat that new technology poses to privacy is
greatly overblown. James Harkin believes that it springs from a mixture
of anti-technology phobia and social panic. Take, for example, the fear
of mobile phones as portable spy cameras or sinister tracking device.
HARKIN: There seems to be huge and very
needless social panic surrounding mobile phones, which say much less
about mobile devices than they do about ourselves. Now I don.t know
of any case so far in Britain of mobile tracking being used by a
paedophile, I don.t know of any case in which a paedophile has used a
picture message to photograph a child. And yet in February 2003 when
these devices were coming on screen, you had these charities calling for
a ban on picture messaging or limits on location tracking technology.
And there were really no instances of this happening. I think that says
quite a lot about our rather Luddite approach to new technologies . that
all we can think of is that paedophiles might want to use these things.
CAIRNCROSS: That note of caution may be
justified. But few people imagined, in the internet.s early days, that
criminals might want to use it to abduct youngsters or that teenagers
might use it to view pornography. There have been some unpleasant
surprises for advocates of new technology in the way that some choose
to apply it.
The big question is, are people prepared, in the name of privacy, to
restrict the use of technologies that many find beneficial, or even
liberating? Peter Swire thinks that public concern for privacy will assert
itself as it has in the past.
SWIRE: In the 1960s the big fear was that
lie detectors would become part of the daily life of the workforce, but
as a society we.ve decided we.re simply not going to do those kind of
lie detectors, we.re not going to let the boss do that as part of the daily
routine. And I think we.ve decided for internet surfing that at least the
internet service providers in the United States do not keep track of
every website I go to. That was a business decision that people
wouldn.t use the net if they were being tracked. So I think periodically,
but significantly, we have these victories. We carve out a space where
surveillance isn.t going to happen. And privacy.s the word we use for
these debates for this era . how we.re going to fight back, how we.re
going to create a balance of power that leaves us with a sense of a free
society.
CAIRNCROSS: The trouble with Professor Swire.s
optimism is that one of his examples, foregoing lie detection, may
merely reflect the inadequacies of 1960s technology. As the electronic
kit gets better, the temptation to use it will increase. Insurance
companies are already experimenting with electronic means to discover
if people who phone them with insurance claims are telling the truth.
And most of the important websites you visit will discreetly leave in
your computer an electronic calling card that says you have been there.
So what can society do to reconcile the efficient use of new
technologies with the traditional idea of a private life? Regulator
Jonathan Bamford.
BAMFORD: I think we have to recognise the
fact that if people want to live lives the way they choose to, exploiting
modern technology like the internet, like using mobile phones, all those
other things which people see as bringing benefit to their lives, there.s
potentially a danger there that enables their transactions to be tracked,
recorded. I think the important thing is that whilst that potential for
privacy.s been eroded, that actually there is a robust data protection
regime which essentially provides that element of space for individuals,
so there.s not an unwarranted infringement of their privacy. If a mobile
phone record is necessary to deal with a very serious crime like a rape
or a murder, then that.s something which I think as a society we.d
accept there.s a warranted intrusion into people.s private lives. But that
isn.t the same as that information being fair game more generally for
commercial purposes or more generally for government purposes.
CAIRNCROSS: Self-restraint in the use of a
powerful new technology is incredibly difficult. Imaginative regulation
is certainly worth a try. But, if monitoring and tracking bring benefits,
to commerce or to public safety, there will be huge pressure to use it.
The limits on personal privacy have shifted permanently. We.ve left the
relative anonymity of the 20th century free world and we.re returning to
the days of the village, where everybody knew a lot about what
everybody else was doing.
But, whereas it was possible then to escape the village and hide from
view, now we may no longer have that option . at least, not if we want
to take full advantage of the benefits of the electronic world.
13
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