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net.wars: Modern liberty

Tomorrow is a thing: a series of events around Britain called the Modern Liberty Convention. Practically everyone I know (and a lot of people I don't) is on the speakers' list at one site or another. A Canadian friend emailed envirously about this: the Brits have it right! she said.

Well, not entirely. The reason you need an event like the Modern Liberty Convention is because you have a problem. Or, as the University College London Student Human Rights Programme has carefully documented, because you've lost a load of freedoms you thought you had (PDF)

The list they've compiled is pretty astonishing.

In the fact of the Human Rights Act and 800 years of the Magna Carta [image, above right] 25 Acts of Parliament and 50 individual measures have served to remove freedoms that most British people took pretty much for granted. This is, of course, the problem with an unwritten constitution: it's fine to govern by gentlemen's agreement as long as everyone concerned is a gentleman. The assumption is that gentlemen share a consistent set of values and can imagine that the laws they're creating will apply to them just as much as everyone else they affect.

That this hasn't been the case for sometime is thoroughly documented by the convention's researchers, the University College London Student Human Rights Programme in What we've lost, an inventory of 25 Acts of Parliament and 50 measures that in the few short years of this century have acid-washed liberties that Britons have taken for granted in those 800 years since Magna Carta.

My contribution is to form, on behalf of the Open Rights Group, part of a panel called "Business gets personal – can privacy have a future?"

The answer, I think, is "maybe" and "sometimes".

Businesses invade our privacy for all sorts of different reasons with varying amounts of power over us, so there isn't going to be just one answer. Constitutions don't necessarily help with this, largely because the threat companies pose is so recent. Even the written US constitution can't help us much; there was no such thing as a multinational corporation with an economy bigger than a government's back in the 18th century.

Amazon and eBay retain our user histories in ways that benefit us as well as them. It's helpful to be able to look over past Amazon purchases to make sure we don't give someone the same gift twice; Amazon uses our purchase history to recommend new things we might like.

On eBay, your history is your reputation; it's what enables trading with strangers with some confidence. We get less in return – small discounts, preferential seating – in return for the privacy we give away when we sign up for loyalty cards or frequent flyer programs. But in these cases we have choices: we can buy books and groceries with cash from local shops; we can either not fly or vary the airline. As privacy advocates have said for some years, in these situations we tend to sell our privacy very cheaply.

We have little choice about using other types of businesses, such as banks and telephone companies – and there is no market pressure on them to adopt privacy-protecting policies. The nature of their businesses ensures that they have access to particularly intimate information about us. More than that, government mandates such as the anti-terrorism and data retention laws require them to retain that information and make it available.

We can't get a better privacy regime by changing banks (unless the new bank is off-shore somewhere) or by switching from BT to Vodafone. Just last week, the US announced proposals to require not only ISPs (as in this country) but anyone operating a Wi-Fi hotspot to retain access logs for two years. The only way those businesses can be forced to change is by changing the law.

The most interesting are the social media, not only social networks like Facebook and Twitter but Web boards.

These businesses provide the infrastructure for people to invade their own privacy to an extent that a business would probably never dare ask them to.

Users do have some power in relation to these businesses because using these systems really is discretionary. Facebook, when it announced unilateral new terms and conditions last week became only the latest in a long series of online services to discover the speed with which users can revolt. Facebook's response – to try to create a Bill of Rights and ensure the democratic participation of its users in decisions it makes about the site – is interesting. The company has a serious and deep-rooted conflict: if its users don't trust it they won't stay; but the only potential money-making asset it has is its users and their data

The big mystery is Google. We aren't locked into using it by lack of competitors or government regulation, and we understand its business model perfectly well - collect mountains of data on all of us. And yet we're seduced by that slick interface and those helpful results.

We can't rely on government to control these companies, not least because they'd love to have access to all this data, too. If we want privacy in future, we need to start by making better choices where we can, including in our politics...