In the surveillance of private communication almost everything is history. Edward Snowden’s revelations about the extent of state interception exposed the obsolescence of current legal safeguards. In Britain the 1994 Intelligence Services Act, which gave legal underpinning to the Government Communications Headquarters (GCHQ) for the first time, and the 2000 Regulation of Investigatory Powers Act (RIPA), have been overtaken by the rise of search engines and the social media and accompanying developments in digital systems and software. The late twentieth century is a far away country and the world before the computer beyond sight or meaning.
It may be argued however that the characteristics of the current controversy were established at the beginning of the modern state and mass communication in the second quarter of the nineteenth century. The 1830s saw the Great Reform Act and the first wave of railway building. In 1840 the government slashed the cost of postage to a penny irrespective of distance, and introduced pre-payment to speed the process of delivery. The intention was to democratise correspondence, stabilising a society disrupted by urbanisation, promoting the exchange of the information necessary for a fluid industrialising economy, and creating demand for universal literacy. Four years later what Torrens McCullagh Torrens, the biographer of the Home Secretary, Sir James Graham, called a ‘paroxysm of national anger' exploded when the government was caught opening letters in the interests of national security. It was the political scandal of 1844, permanently scarring the career of the Minister and recalled at intervals down the decades until new regimes of surveillance were introduced around the time of the First World War, such as the 1911 Official Secrets Act.
The 1844 postal espionage crisis contained in embryo all the main features of the international controversy that was ignited in June 2013 by the exposure of the surveillance practices of America’s National Security Agency (NSA) acting in conjunction with other national agencies, including GCHQ. Five aspects of the event, in particular, can help clarify the dynamics of the present situation and the room for manoeuvre of governments and their critics. These are the interaction between privacy and secrecy, the management of secrecy, the boundaries of the state, the nature of privacy panics and the behaviour of consumers.
The initial controversy was purely political. The Italian republican Giuseppe Mazzini, who had been chased across Europe to Britain by the Austrian Government, suspected that his correspondence with radical sympathisers in London was being opened by the Post Office. He placed poppy seeds and grains of sand in the envelopes, and when they arrived empty, he caused the MP Thomas Duncombe to raise a complaint in Parliament.Vincent notes -
The Penny Post was intended to terminate the flourishing networks of informal letter-carrying which had grown up to circumvent the high cost of the Royal Mail. Its success meant that all the delicate sentiments communicated between friends, lovers, parted husbands and wives, and parents and children away from home, were now passing through the hands of official employees under the supervision of the government of the day. The Lord Chief Justice challenged the Home Secretary:
He (Lord) Denman should like to know the feelings of any Secretary of State when he first found himself in the execution of his duty, opening a private letter, becoming the depository of the secrets of a private family, becoming acquainted with circumstances of which he would wish to be ignorant, meeting an individual in society, and knowing that he was in possession of secrets dearer to him than his life.
But the Home Secretary, an upright Tory baronet, could not see the point. His responsibility was keeping the nation safe from internal threats, which in the era of Chartism, the first mass working-class movement, seemed real and imminent. He had no conception of the heightened sensitivies surrounding privacy.
The interaction between privacy and surveillance remains the difficulty for the current government spokesmen. The behaviour of overseas security agencies is at one level a matter for the Foreign Secretary but at another entirely beyond his sphere of competence. Placatory statements to Parliament about the behaviour of GCHQ or the NSA do not begin to embrace the concerns raised by Edward Snowden’s revelations. The event gains its scale because of the collision between state security and the structures and expectations of virtual privacy that have gained new forms and intensities as a consequence of the digital revolution.
Sir James Graham’s second difficulty was his defence of secrecy about secrecy. A year before the postal espionage crisis, Jeremy Bentham’s essay ‘Of Publicity’ was posthumously published. This became a founding text of open government. 'Publicity', he wrote, 'is the fittest law for securing the public confidence, and causing it constantly to advance towards the end of its institution.’ Conversely, 'secresy [sic] is an instrument of conspiracy; it ought not, therefore, to be the system of a regular government.' The destruction of the ‘mystery’ surrounding the state became a shared endeavour of reformers on both sides of the Atlantic. But the post-Reform Act Parliament, forged out of a constitutional crisis between 1830 and 1832, and then threatened by Chartism from 1838, was by no means hostile to the need for some degree of covert action to counter the challenges to the new order. No MP in the often bitter debates that followed Mazzini’s protest demanded the end of all forms of surveillance. Rather they wanted the rules to be made visible and their application accountable. Their preferred remedy was legislation which would compel the Post Office to inform recipients that their mail had been opened.