net.wars

"There is no programme of mass surveillance and there is no surveillance state," Home Secretary Theresa May said in a speech this week. She went on to propose the revival of her pet project, the Communications Data Bill, aka the Snooper's Charter. This is the thing where everyone's communications data is stored in a giant shed where it can be searched at will. Seems just yesterday we were declaring it dead.

This in the same week as the Privacy International-inspired revelation that GCHQ classes anything sent to Facebook, Gmail, and the rest are external communications, which makes them fair game for searching under the Regulation of Investigatory Powers Act as long as they don't use British names or residences as the search terms.

May's statement reminds me of Archimedes, Merlyn's owl in T.H. White's The Once and Future King. Hoping to be ignored, upon being introduced to Wart (the boy form of King Arthur), Archimedes closed his eyes and said doubtfully, "There is no owl." Followed almost immediately afterwards by the hopefulness of "There is no boy".

It's tempting for opponents of stuff like NSA and GCHQ spying, data retention, warrantless searches, and wholescale monitoring of data sent to FaGooTwitAp to claim that May is engaging in Orwellian doublethink. But - leaving aside for this week the problem that Orwell's 1984 is becoming dated as a metaphor for our time - I think not.

Do we have a surveillance state? Your perception on this probably depends somewhat on where you live and your socioeconomic class. The reality, however, for most of us is that it's all rather abstract even though we *know* - because of the Snowden revelations, the cameras visible everywhere, the data breaches, the creepily targeted ads, and the news stories about care.data and new technologies like Google Glass - that the potential is there. People on my street do not cower in the dark filled with fear of saying or doing anything that might call attention to themselves. And, judging by the wildly inappropriate halves of phone conversations you hear on out and about and the more extreme ranges of behavior on Twitter and other social networks, neither do most others.

So I'm going to have to say that May is not, like Archimedes, just trying to wish away a situation she dislikes. She is technically correct: we do not have a surveillance state. What we have, and what she would like to continue to build, is the *apparatus* to support a surveillance state. Similarly, she may be technically correct to say we do not have a program of mass surveillance: what we have is many programs that are building capabilities that taken together could underpin such a program. You may call it a distinction without a difference, but you could say the same about trying to decide whether May is ignorant, in denial, or disingenuous. In both cases, in the long run, it doesn't matter because: if the underpinnings are there the switch can be flipped by a Home Secretary willing to do so. And what May's statement is very clear about is that she wants those underpinnings.

In May's insistence on all-data, all-the-time, it's little surprise that the UK is out of step with other parts of Europe, which are beginning to react as they legally must to the European Court of Justice ruling that data retention is disproportionate. Austria has outright dropped it; some Swedish Internet service providers have simply stopped. Doubtless there will be a redrafted directive in due course. (Which raises an interesting question: where would an independent Scotland stand on this issue? Could state surveillance become an issue in the September referendum?)

It's a bigger surprise that even the US might reverse itself, if only slightly, before the UK does. Last week the Supreme Court ruled that police must get a warrant to search mobile phones. My favorite piece of that judgment is Chief Justice Roberts' recognition that a mobile phone, once the police have ensured it can't be used as a physical weapon, didn't require inspection of its stored data to ensure that it was safe.

In an even bigger surprise, this week US Attorney General Eric Holder promised to grant Europeans similar privacy protection as those afforded to US citizens by the Privacy Act. Granted, we await actual legislation to see if and how the Obama administration follows through - without changes to FISA it's hard to see how this is going to work. But the fact that they're even using these words is a major breakthrough. A cynic would suspect that the fact that Holder specifically mentioned the EU suggests that the actual goal is more related to trying to limit the impact of data protection reform on US data-driven companies than to abandoning American exceptionalism.

Unlike Archimedes, therefore, May is, if anything, trying to bring something into existence rather than deny it. I think the logic goes: there is no surveillance state - so we *can* implement all this pervasive data monitoring - and therefore we should, because if we don't terrible things will happen. I guess we were supposed to find it comforting. Me, not so much.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.