20 April 2022

With the Online Safety Bill, Britain is going from Nanny State to Granny State

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It may have slipped your notice, but you don’t have the right to free speech. British political commentators are regularly surprised to find out that under the 2003 Communications Act, being offensive is in fact an offence. If that doesn’t get you, then there is always section 4a of the 1986 Public Order Act. You do have the right to be offensive while talking to another person in the privacy of your own home, so long as you aren’t in Scotland, where the SNP have decided the government’s right to monitor what you say extends to conversations held within your own living room.

Now the Government’s draft Online Safety Bill threatens to curtail your freedom to think and speak as you wish even further. As a bonus, the same legislation could expose your messages to hackers, kill off British businesses, and appoint Silicon Valley firms as the de facto editors of British political speech.

There are so many problems with this bill that it is genuinely difficult to know where to begin. Perhaps the least understood but most harmful provisions relate to ‘end-to-end encryption’; mechanisms which make sure that only the people sending and receiving data can read it. As you might be able to guess, these tools are pretty important from a safety standpoint. No-one – not the Government, not the company, not any third party – can read the messages sent unless they have the devices.

Think of it this way – should I be able to read your messages with your wife? No? OK. Can I look at the photos she’s sent you? Can I look at your camera roll? Also no? Interesting. If the idea of my having uninhibited access to your communications causes you some discomfort, you should be in favour of encryption.

The Online Safety Bill doesn’t explicitly ban this technology. Instead, it attacks it indirectly: companies have an obligation to moderate illegal content. If that content is encrypted, then they can’t moderate it. This means they either withdraw or weaken encryption, or they risk massive fines.

It’s worth remembering that there’s no such thing as a safe backdoor where encryption is concerned. If the Government or a social media company can use it to keep people safe, less well-meaning actors can use it to endanger them. It’s not hard to think of communications that we want to keep private; conversations with dissidents in Russia and Hong Kong, conversations between lawyers and their clients, the endless WhatsApp plots between Tory MPs. Attacking encryption risks opening them all to your government, other governments, and – the next time a sufficiently large hack takes place – the general public.

Where the bill isn’t insisting on the right to read your thoughts, it’s seeking to restrict your ability to express them. Imposing a duty on firms to censor conversation which is ‘legal but harmful’ is paradoxical; if you are required to censor it, then it isn’t really legal to express it. Free speech concerns aside, this is an insane step for a nominally right-wing government to take; complaining in one breath about the liberal bias of big tech, before demanding, on the pain of swingeing fines, that it takes on the role of editors of British political speech is not a coherent position.

That the precise meaning of ‘harmful’ will be decided by MPs is also not exactly comforting, given the predilection towards censorship displayed by British legislators in the past, or the incentive it gives Silicon Valley firms to overreach; if these companies, in the view of the British government, do not perform their duty sufficiently, then it reserves the right to fine them up to 10% of their global revenue.

The extent of this legislation is hard to exaggerate. If your service allows you to share content, it’s covered. That brings in everything from forums and dating apps to games and e-commerce. It’s also a killer for small firms looking to grow. The Government’s impact assessment thinks ‘additional content moderation’ will cost firms about £1.7 billion over the first ten years of the bill’s life. This is not, to put it mildly, a competitive advantage for the UK tech sector in a global marketplace, or a boon to start-ups looking to dislodge established firms.

It is, however, firmly in line with the Conservative Party’s approach to getting things done: find a costly solution, then find a way to make businesses bear those costs. Worried that attenuated state capacity means you don’t know who enters and leaves the country? Make landlords and employers check every interaction’s legality, and have them face consequences if they err. Concerned about online safety? Don’t provide resources for police investigation and prosecutions of genuinely dangerous material; outsource censorship to tech firms instead.

The only really successful element of the bill has been its assembly of a supporting coalition; exempting internet service providers, who are glad to pass the buck on managing access to content, and news publishers, who get to see the businesses eroding their profit margins take one on the jaw, has bought a significant degree of vocal support for the Government’s plans. That doesn’t mean those plans are any good, however.

With this legislation, Britain is becoming not so much a nanny state as a granny state; far from the cutting edge of technology, concerned that someone, somewhere might engage in unmoderated conversation which is insufficiently civil, and convinced it has the right to know what’s going on in your life. Just as worryingly, a party once steeped in ideas of individual responsibility does not seem to accept that harms can be addressed other than through state action – by parents limiting and monitoring their children’s internet use, or by people taking it upon themselves to avoid harmful material.

The Government is proud that the UK is the first country to introduce ‘world-leading’ legislation in this area. They are right, of course – but only because it’s hard to imagine any other government producing something quite this misguided.

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Sam Ashworth-Hayes is Director of Studies at the Henry Jackson Society.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.