You may not have something to hide. But you have something to lose.
While writing a previous article about the data retention situation in Germany I realized that the discussion about why it is a very bad idea is too narrow with respect to the potential impact.
The arguments of data retention proponents are pretty much the same everywhere. We need that data because
if we don't have it the crime will go unpunished since we cannot prove it. And it's not a big deal since you have nothing to hide.
The argument is usually wrong for the first part. It's actually dangerously wrong. And the second part is precisely the reason why you should be worried. It's simply a suspicion bordering an insinuation. It basically claims that if you have nothing to hide you can't possibly oppose it. And if you oppose it you obviously have something to hide. This insinuation on my part will become reality. It's inevitable. And this has a lot to do with the first part of that claim.
For the first part. Yes it's possible that crimes go unpunished. That's because most constitutional states require you to have evidence and they also follow the concept of presumed innocence. But this retention data is no evidence.
The data that is being collected has no real meaning for itself. It's meta data. It provides perspective in a bigger picture. The phone call you made connects you with a person. The cell tower your phone is booked into connects you with an estimated location. Your IP connects you with a service. Nothing of this has any content or meat. And that's why a lot of people are Ok with it...they have nothing to hide and it doesn't look that bad. And that's a dangerous assumption.
The first part of that claim is wrong. It's wrong because nothing of this even remotely provides evidence. No one knows what you spoke about during that phone call. No one knows what you did in that area. And no one knows what you actually looked at on that service. It's not evidence. Hence it cannot - and more importantly must not - be crucial for a conviction. Obviously the outcome is that if this is all they have the suspect will walk. He must.
It's a method the intelligence community can and does employ because they don't generally work with evidence. They work with probability.
If the police utilizes this dragnet probability that's a dangerous path in this context because they obviously work in general probability too. The person that is being investigated most thoroughly is the one that has the most hints pointing at him or her. Hints today however are not you spoke with that person or you were in downtown New York.
This kind of data on first look makes police work easier. They can sift though data and that shrinks or expands the list of suspects. Pretty convenient. But what if I commit 1st degree murder? What if I planned it? What if I leave my phone at home booked into the cell tower some 50 miles away? What if I make it call a number where it's absolutely impossible anyone will remember? What if I called a friend who I know is not at home? If my phone being in the area raises the suspicion against me. Wouldn't my phone being miles away happily making phone calls not lower it? What if the person it calls is actually a partner in crime? My phone could happily talk for hours with him and it would all be on the bill and in the retention data.
What if it's 3 o'clock at night and the only other unlucky guy in the area has a cell phone booked into a local tower? Wouldn't that make him extra suspicious? Much more than me?
If a criminal calls me. Does that make me suspicious? What if I say I rent cars? Does that still make me suspicious or would that actually lower it? And why? Just because I rent cars doesn't mean I don't rob banks.
Now the police will always claim that this is not how it works. But that's simply not true. It's exactly how it works. Specifically with high profile cases where there is pressure. A killed or kidnapped kid, terrorism, rape. You name the game. Easy roads to a conviction are not the rule. They however are not very rare either. And their likeliness increases with pressure. Specifically in countries where prosecutors, judges or elements of law enforcement are elected. Having a good conviction rate usually is not a bad thing in that case.
Data retention is not a state secret. We discuss it and unless you're a specifically dumb criminal you may have heard about it and thus evade it. Data retention makes hundreds or thousands of citizens a suspect while the not completely retarded criminal who actually is the culprit isn't even on the same radar.
This kind of data is not evidence. It's not even an indicator. It's just a piece of information that may or may not provide perspective. It may very well distort it and thus conceal rather than reveal.
Now the current generation of investigators will most certainly not rely on it in the same way future generations will. Humans are creatures of habit and investigators are - no offense - analog. The coming generations will be digital. And they will rely on the data because that's what they are taught to use.
While the situation for the I-don't-have-anything-to-hide generation today may not end up in a catastrophe future generations will be born in exactly that. A police state that predominantely deals in probablilities with a police force that requires more and more data for their dragnet to compensate for evasion.
The only system that can achieve a very high conviction rate is always a police state that does not respect privacy nor civil rights. Living in a free society comes with pricetags. One of them is that no one can guarantee you anything but your freedom. That's fine with me since the only thing the police state can actually guarantee you is the absense of freedoms.
Data retention doesn't care about what you have to hide. It cares about what you have to give up to get a false feeling of safety while giving up your freedoms one piece at a time. And as Franklin said:
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
The quote is 238 years old and until now history always proved it true. The inevitable outcome of the failure to understand the meaning of that is a quote by Thomas Jefferson from the same period.
The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.
The only thing that actually has changed with respect to the latter is the number game. When Jefferson made this remark he also stated - in the same text - What signify a few lives lost in a century or two? Quite in contrast to our understanding of Franklin our weapons have improved significantly.
When my country failed to understand Franklin the world lost millions of lives in a decade. And that was over 70 years ago and our weapons have again improved. Those living in the free west are priviledged. That comes with an obligation as the world simply cannot afford any of us to run rogue. We have the obligation to keep an eye on our own and on our actions. And that is an obligation we must not fail at. There's no one left to correct that failure.