Reader Nigel Sedgwick reminds me of his long insightful comment here back in mid-2011 on the subject of where or not to draw the line when it comes to state eavesdropping.

I reproduce the whole comment here. See especially his concluding thoughts (my emphasis)

An understanding of the current issue with the News of the World (with voice-mail-boxes and other issues not so clearly explained) is currently somewhat beyond me. This is not least as to the evidence, uncontaminated by legal argument and other opinion, and to the law (similarly obscured).

Intermittently, and multi-momentarily, I have tried to hold to the view of Richard North, that there are many more important things for us to be interested in, and that perhaps government views this issue as a multiplicity of ‘good news days’: though not for new news, just for relief from rerunning of old news that is to the ongoing discredit of government. [And aside that other MSM vested interests would like the Murdoch bid for BSkyB to fail.] Though I cannot hold only to that view, I cannot take it as lacking in any merit. Also, as government policy, it does not seem to be going too well as a beneficial diversion.

But there is more to be said: this is on the general topic of spying. Also around the ethics of spying and, purely by coincidence (as in co-location) around the ethics of government spying, and the example set by that.

I have yet to come across a government that does not undertake spying. Certain countries have given a veneer of legitimacy to the practice, though the experience of that makes me wonder why they do so: to keep the spying under control, or to further legitimise more of it? Maybe even some of those involved thought one, and some thought the other.

In the UK, under the government of John Major, the activities were legitimised (that is put on a statutory footing) of the Secret Intelligence Service (SIS, also known as MI6), the Security Service (also known as MI5) and Government Communications Headquarters (always known as GCHQ).

IIRC, the central government agencies of SIS and GCHQ were once restricted from spying on those within the UK. They were principally targetted against foreign nations who presented some sort of threat against the UK as a nation state. However, since the Major initiative of ‘bringing them within the remit of open government’, their ‘legitimised’ targets have been extended to cover organised crime (and particularly drug running). Also, their activities within the UK have been permitted (or should that be extended), and particularly beyond their involvement in terrorism originating in Northern Ireland.

Now, I can see some logic in that extension of geographical coverage. These intelligence organisations each have their own specialist technologies that support their operations. It is less than financially efficient to multiply provision of this skill-base and the very expensive associated equipment, when it is needed by one of their ‘sister’ organisations that does have legitimacy to use such skills and technology within the UK, and particularly ‘against’ UK citizens and other UK residents and visitors.

In the UK, in addition, there is spying by other government agencies. These include the police (and especially their special branch), with the (usual) legitimacy of a search warrant, where the information they seek might be otherwise the private property of the then innocent, only suspected of criminal activity. Increasingly, other government agencies, including particularly local government and utility companies (through claims to the urgency of safety investigations) have the ‘right’ to treat those that pay them as mere appendages to their ‘businesses’, who must be watched like hawks for any inconvenience caused, no matter how trivial, and then re-herded to their proper place

Now we have this terrible fuss over non-government spying.

But we are confused. For us, surely this investigative journalism is good when directed against the bad guys (including those abusing government authority) but is not good when directed at satisfying the prurient interests of newspaper readers (unless one is such a reader).

Quite a while ago (starting in 2006), I commented extensively on the NO2ID website concerning the then government’s proposed National Identity Scheme. One of my earliest comments (IIRC as the original comment eludes my search) was along the lines that government is advantaged by developments in high technology; that this advantage exists and grows is unavoidable.

I wrote further, along the lines that the protection (from government) for the public will never truly be available through controls on the technology (which is always advancing). Such protection will come only from constraints on government: whether these constraints be formal or informal, whether written or unwritten, and whether (usually) self-imposed by government or by being (always necessarily) imposed upon them by constitution and adequate oversight.

Spying too (by both government and the private sector) makes much use of hi-technology. There is no avoiding it. As each new bit of hi-tech comes along, there will be more spying: more spying on those who use the new hi-tech for ordinary living; more spying using the new hi-tech as the tool for doing it. As such spying becomes public knowledge, there will (as now) be some terrible fuss: new technology, but the same underlying problem.

Government, of course, does like to control everything: firearms, identity, cameras – and now spying (especially that on government).

What is to be done?

Well, there is nothing new to be done with the same old problem. We must accept that spying will always take place, both by government and by the private sector. We must disapprove of it, in general terms, and keep it outside of the law. When such spying is disclosed, we must view those who carried it out as operating outside of the law, in the wrong, and liable to due process and punishment.

That is unless they can produce a strong case in defence, that the exposure of worse wrongdoing was in the public interest: the end justified the means.

In order to do this, the extensive legitimisation of spying should be avoided. There is no possibility of getting it right, as the lawful legitimisation can only specify the boundary between rightful and wrongful means: the definition of what is and what is not spying. The law can no longer specify in advance, the boundary between rightful and wrongful purpose, though it once could do better than now.

And the reason that the law can no longer well specify in advance, for government, the boundary between rightful and wrongful purpose is this. Over the last few decades, government has totally compromised the law on such specification. It has repeatedly passed laws that ‘legitimise’ more and more spying and has ignored, circumvented and got away with the previous legal protections against wrongful search and intrusion against privacy. Far too much control has been passed unnecessarily away from judicial authorisation, for alleged offences that are far to trivial to justify such means as spying.

And the reason that the law never could well specify in advance, for the private sector, is because the final decision rests with a jury in a criminal court. So it never could.

The best we can hope for is threefold:

(i) that those who spy keep a strict sense of proportion between their means and the wrong of which they believe they have probable cause to suspect;

(ii) that no harm is done by spying on those judged ultimately to be innocent (mostly by keeping secret the results of the spying);

(iii) that those who spy and disclose their results are subject to full scrutiny (as the normal course of events) and to serious punishment if they cannot justify that their spying and disclosure was in the public interest and was proportionate in the totality of its application.

This should all apply to government spying as much as to private sector spying, noting particularly that the costs of government spying are borne by the taxpayer

Impressive stuff. As good as anything else I have seen on the subject.

The point about all the preening Snowdens and Greenwalds and their supporters is (a) that they are basically only destructive, and (b) that in fact their behaviour basically helps only the real enemies of any sort liberal freedom.

Here’s my challenge to them and to anyone who agrees with them:

If you are not happy with the current way these things work, propose a detailed alternative. Show us an ideal draft law and supporting regulations, such that if the government then follows them and you find yourself or someone you know being ‘watched’ you’ll then NOT kick up a fuss and rail against ‘oppression’.

Instead, you’ll smile resignedly and say that in an imperfect democracy sometimes tough decisions need to be taken – and that in the most difficult cases we the citizens have no choice but to trust the state to make them, and hope for the best.