Privacy and anonymity: necessary requirements for free speech?

Should we be pitting privacy and freedom of expression against each other, or should be embrace the principles embedded within the two to protect us all? Stephen Blythe explores the issue.

Image: Don't stray from the path by Dave Cournoyer CC BY-NC-SA 2.0

The rights to privacy and freedom of expression are firmly established in International law as fundamental human rights. Whilst the language varies, many jurisdictions incorporate some form of protection within their domestic legal systems. In the UK, this is achieved by virtue of the Human Rights Act 1998, filtered down from the European Convention on Human Rights.

Traditionally, these two categories of rights have been seen to be naturally at odds with each other, with a balancing act required to ensure that people are able to enjoy respect for their private lives, whilst also allowing the press the freedom to publish details that are in the public interest. This is a well documented area, and most of us will be familiar with the saying about the importance of ensuring that information published is 'in the public interest rather than what is interesting to the public'. However, there is more in common between the rights of privacy and freedom of expression than it may at first appear. This is especially true if we expand outward to consider more than simply those situations involving the media.

The proliferation of the Internet and connected platforms, with its absorption into the everyday life, has altered the considerations relating to freedom of privacy. With an unprecedented ability for both Government and Commercial bodies to collect and analyse data about ordinary people on such a massive scale, it would be fair to say that the attitudes towards privacy are in the throes of a significant - if albeit uncertain - shift.  The revelations of the past few years detailing the extent to which information is being gathered (both on and offline) without consent has confirmed (and arguably surpassed) the prophetic concerns outlined by pre-eminent legal scholar and activist Lawrence Lessig in 1999. - 'Code and Other Laws of Cyberspace' More than ever, ensuring that we have an effective right of privacy is something being highlighted, debated, and implemented. Whilst once PGP encryption keys were simply the hallmark of the over-paranoid geek, encryption now comes as standard on major operating systems; web-services increasingly force the use of SSL by default; and people are taking extra steps to ensure the security and integrity of their digital lives. 

Whilst the push towards technologies such as Truecrypt, and subscription VPN services for mainstream use gives effective peace of mind for users concerned about their personal communications, it naturally also protects those who engage in activities that fall into the spheres of illegality or immorality. 

It should come as no real surprise that the darkest parts of the web are to be found on the secure Tor network - where for the right price, one can buy anything from child pornography and weapons, to American citizenship. This very dilemma is that which those who call for a balance between privacy and expression are traditionally caught up in: to what extent do we tolerate the invasions of privacy of the few for the wider benefit of society? However, interference with that which is private is no longer solely the concern of those in the public eye anymore. 

In an infinitely connected world where the NSA, GCHQ, or any other body are actively logging the activities of the majority rather than the minority, the weight of the considerations shift substantially. The old notions of privacy as vanguarded by the institutional press are no longer the operative circumstance, and it is because of this that we must consider the fundamental principles of what the rights to privacy and freedom of expression actually entail. Whilst out-with the scope of this article, it is worthy of mention that in many parts of the world, privacy and anonymity are necessary requirements for free speech to exist at all; it is the case that often one cannot speak their mind freely without protection from those whom they are speaking out against. 

It is true that the same capability of one person to encrypt their hard-disk that contains financial information is the same that allows a child pornographer to shield their crimes from the immediate ramifications of the law, but it is important that we fight to protect the over-arching right to privacy. Proponents for the protection of the freedom of expression have for decades insisted on the tenet that such a right must include being able to communicate ideas that we may find offensive, or reprehensible. To argue for free speech, one must defend the right for the freedom of all to speak, and not just those whose views we agree with. To argue for the right to privacy of one, we must argue for the right to privacy of us all.

In the face of mass surveillance, technology that increases the protection of privacy is under a significant threat from those with an interest in restricting its use; we must fight to ensure that this does not happen. Instead of pitting privacy and freedom of expression against each other, as has been the case for so long, we must embrace the principles contained within both of these fundamental rights to enable the protection of all of us, lest we lose them completely.

Stephen Blythe is an internet law geek with an LLM on the way, and Digital Marketing Manager for tech firm Amor Group. You can find him on Twitter, and Google+.