UK riots and the Internet: What would Hayek do?

Berin Szoka Contributor
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U.K. Prime Minister David Cameron has declared “everything necessary will be done to restore order” in Britain’s riot-racked cities. With respect to the right honorable gentleman, what distinguishes free from unfree societies is not order, but ordered liberty. As the great Tory philosopher Edmund Burke taught, reconciling liberty and order is the fine art of democratic statecraft. Tweaking that balance as technology evolves requires the most careful and judicious deliberation. Only where cooler heads prevail can ordered liberty thrive.

Cameron’s government has hesitated to escalate physical force with rubber bullets and water cannons, lest they lend moral sanction to the brutal tactics used by China and in the Middle East to suppress dissent. Yet however noble his intentions, Cameron could do more to undermine ordered liberty with “bloodless” measures targeting social media services like Twitter and Facebook, and improperly using photo identification.

Cameron, who championed Internet-driven revolutions in Egypt and Tunisia, told Parliament that the “free flow of information can be used for good, but it can also be used for ill.” His vague response: “We are working with the police, the intelligence services and industry whether it will be right to stop people communicating via these websites and services.”

So far, the only clear call for shutting down social media outright came from a Labour MP, not Cameron’s Tories. David Lammy, who represents the London neighborhood where rioting began, has demanded the suspension of BlackBerry Messenger (BBM) service for “helping rioters outfox Police.” Such a response befits Beijing, not Britain, the birthplace of ordered liberty.

Free societies can and should silence those who incite acts of violence — but not by shutting down speech platforms for all users. Even America’s speech-protective First Amendment allows punishment of speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That standard protects legitimate expression without preventing prosecution of those individuals stoking and organizing riots. The same standard should determine when government may properly force social media systems to take down seditious posts, photos and videos.

Cameron rightly wants to ban lawless rabble-rousers from social media. For those convicted of online incitement, such a sentence would fit the crime, and could be enforced just like any other condition of probation. Indeed, making this penalty clear now could prove a powerful deterrent — especially among social media-obsessed youth, who might consider a ban of even a few years to be “social death.”

Of course, police most want to squelch incitement quickly. But the “prior restraint” of individual voices is perhaps the most dangerous tool any government could have; it demands close judicial scrutiny based on the presumption of innocence. Temporarily suspending users without meeting the “imminent incitement” standard would be the digital equivalent of detaining prisoners without trial — a violation of the sacred Anglo-American right to habeas corpus. Instead, Britain and other democracies must give law enforcement the resources to prosecute incitement quickly and ensure the courts can apply meaningful scrutiny in emergencies.

The harder question is surveillance. Congress artfully balanced privacy (liberty) with the needs of law enforcement (order) back in 1986 with the Electronic Communications Privacy Act. While technologically outdated in some respects, the law’s core principles remain sound: Law enforcement can monitor non-private postings, but must establish probable cause to intercept private communications and, eventually, notify the suspect. That standard doesn’t change in emergencies, but government has 48 hours to “show cause” to a court. ECPA rightly forbids digital dragnets — say, demanding private messages by all teens in certain riot-rocked London neighborhoods.

Offline, Cameron would allow British police to order the removal of facemasks not merely in a specific geographical location or for a limited time. While this troubles privacy advocates, it seems justified, since police must still establish reasonable suspicion of criminal activity. The U.S. Supreme Court has allowed police to require those stopped upon probable suspicion to identify themselves — essentially the same as unmasking someone. A vital philosophical question unites this debate with that over social media: Should citizens of free societies expect privacy in their appearances in public?

The answer, again, lies in balancing liberty with order. Cameron wants police to use facial recognition technology to identify rioters so they can be apprehended and prosecuted. Such technology allows services like Facebook to predict, with increasing accuracy, that the same person appears in multiple photos — so a user need only “tag” his or friend once. Police could use even more accurate tools to identify suspects who appear in multiple photos or videos of rioting.

Such automatic association simply enhances traditional sleuthing and should be unobjectionable on its own, or when police ask the public “Have you seen this person?” Legitimate concerns arise when police associate a composite appearance with a database of photos tied to known identities — be that a driver’s license system or Facebook. Here again, the “probable cause” standard should be the bulwark of liberty — without crippling law enforcement.

Courts can address concerns about inaccurate photo identification through the normal evidentiary process. Private citizens who attempt to “crowdsource” identification of rioters, as some Britons attempted, can play a helpful role as a digital “neighborhood watch” — so long as they do not turn to vigilantism, leaving punishment to the courts. This will maintain the presumption of innocence in the age of ubiquitous photography and photo identification.

Such radical transparency is, however, a two-way street. Cameron can claim the moral high ground by affirming that police will not interfere with Britons who passively record police activity or share such photos and videos online. In free societies, it is we, the people, armed with cell phone cameras, who “watch the watchmen.” Sunlight, truly, is the best disinfectant.

Finally, Cameron should remember the wisdom of F.A. Hayek, to whose book The Constitution of Liberty Margaret Thatcher once dramatically pointed, saying, “This is what we believe.” Hayek warned that crisis-driven decisions about the balance between liberty and order will ultimately take us down “the road to serfdom.”

Berin Szoka is President of TechFreedom, a digital policy think tank.