WhatsAppened to privacy?

In our latest Battle of Ideas festival preview, panellist Tiffany Jenkins argues that the war on private conversations serves neither politicians nor the public.

On 6 October, Big Brother Watch (BBW), along with a coalition of 65 parliamentarians and 31 rights and race-equality organisations, called for an urgent stop to the use facial-recognition surveillance by the police and private companies. ‘This dangerously authoritarian technology has the potential to turn populations into walking ID cards in a constant police lineup’, said Silkie Carlo, director of BBW.

At the Battle of Ideas festival this year, we will be asking what is so valuable about privacy – and what is at risk if we lose too much of it? Conservative MP David Davis will be joining our panel, alongside Manifesto Club director Josie Appleton, Daily Telegraph columnist Tim Stanley and author Tiffany Jenkins.

Ahead of our debate - WHATSAPPENED TO PRIVACY? - Tiffany gives us a sneak preview of her forthcoming book, Strangers and Intimates: the rise and fall of private life, reflecting on a series of Westminster leaks, the attacks on private communications and the importance of our secret spaces. Should we welcome the tendency to make everything public, especially if it roots out backward attitudes or exposes those who misuse power? And what is the relationship between the public and private - where does the balance lie?

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In the early hours of Friday 21 June 2019, neighbours of Carrie Symonds and Boris Johnson - then campaigning to be the leader of the Conservative Party - overheard a heated argument between the couple, which they recorded.

After knocking on the door and receiving no answer, they also called 999. Within minutes, two police cars and a van arrived. The police visited the couple, determined that all occupants of the house were ‘safe and well’, and concluded that there was no need for further investigation.

Nevertheless, the Guardian published the transcript of the recording on its front page. Under the headline ‘Boris Johnson: police called to loud altercation at potential PM's home’, the article reported that a woman was heard complaining that a white sofa had been damaged with red wine. ‘You just don't care for anything because you're spoilt. You have no care for money or anything.’ She was also heard saying, ‘get out of my flat’. Johnson was heard refusing to leave and telling Symonds to ‘get off my fucking laptop’.

I was reminded of this sordid episode when, in July this year, the Cabinet Office lost its challenge over the Covid-19 Inquiry’s request for Johnson’s unredacted WhatsApp messages, notebooks and diaries. The Inquiry had demanded this material from the former prime minister, who was willing, but the Cabinet Office declined. Having already handed over 55,000 documents, 24 personal witness statements and eight corporate statements, it argued that it should not be required to provide material that is ‘unambiguously irrelevant’. It argued that the content was ‘private’ and ‘personal’, giving the example of a mention of a child’s schooling arrangements.

I had some sympathy with the government in this case. At its core lies a fundamental principle: the necessity for public figures to engage in unfettered discussions during times of crisis, shielded from immediate scrutiny. Privacy becomes their refuge, where they can freely explore and evaluate ideas, contemplate the ramifications of potential decisions and consider scenarios that may never come to pass. Yet this is increasingly elusive in an age that venerates transparency and views any attempts to maintain privacy with suspicion.

However, my sympathy for the government is tested here.

For a start, what were ministers doing conducting so much of their business on the ephemeral platform that is WhatsApp? Yes, they were dealing with a contagious disease, but WhatsApp is fundamentally a quick-fire messaging service unsuited to consideration of complex policy discussions that may be matters of life and death. One leaked message from the period reveals that Hancock took a while to read a message informing him that excess care-home deaths had risen to a staggering 10,000. That delay and his response, ‘Aargh sorry - just got this’, is concerning.

In early October, it was revealed that Rishi Sunak failed to hand over his WhatsApp messages from his time as chancellor to the Covid Inquiry, despite the High Court ruling that ministers should disclose their communications for scrutiny. The prime minister claimed that he did ‘not have access’ to the messages during the period running the Treasury, because he had changed his phone several times and failed to back them up.

WhatsApp is a method of communication that lacks gravity and solemnity. Decisions of the magnitude ministers make are too important to be handled while multitasking with children’s schooling. Such pivotal choices deserve a singular focus, for all involved, untangled from the distractions of day-to-day life.

The transparent society

It is also the case that politicians appear to find it difficult to negotiate how to keep information out of the public domain. It was Johnson himself who had given Baroness Hallett free rein to decide the parameters of the Inquiry, thereby empowering her to requisition any WhatsApp messages, diaries and notebooks as she deemed fit. The same senior politician whose personal mobile phone number, throughout his tenures as foreign secretary and prime minister, had been freely available on the internet for the past 15 years. That was one of many careless oversights, fraught with potential security vulnerabilities.

Additionally, around 100,000 WhatsApp messages, including one by Matt Hancock stating the government should ‘frighten the pants off everyone’, were leaked to the Telegraph by journalist Isabel Oakeshott. While Oakeshott violated a non-disclosure agreement to do so, it was Hancock who willingly furnished her with said missives during their collaborative effort in crafting his book, Pandemic Diaries.

It’s hard to believe that the former heath secretary would not have contemplated the possibility that Oakeshott, a seasoned journalist - and vocal critic of the lockdown measures - might expose the contents of those very messages. After all, by the time Hancock handed over the messages, he himself had been brought down by leaked CCTV footage that captured him in his office cheating on his wife. He was on a leaky ship. 

It was Tony Blair who is partly responsible, in the shape of the Freedom of Information Act (2000), for promoting an ethos of transparency as essential for trust in politics and, by inference, the withholding of information as suspicious. In opposition, Blair said he believed such an act would: ‘Signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country.’ It was only later, after he became prime minister and saw the consequences, that he realised his folly. He came to see it as a law that was ‘utterly undermining of sensible government’. ‘I quake at the imbecility of it… it is a dangerous act’, he reflected in his memoirs, ‘because governments need to be able to debate and decide issues in confidence’.

Well, too late. Journalists spend much of their working lives making freedom of information (FOI) requests, while politicians have resorted to alternative means of communication that seemingly circumvent its parameters: post-it notes and emerging technologies that sit within a nebulous realm, much like WhatsApp.

Meanwhile, leaking has emerged as a means to an end, a political stratagem employed with increasing frequency by journalists, civil servants and the politicians themselves. The public only became privy to the parties hosted within the confines of Number 10 during Lockdown because attendees and colleagues leaked that information to journalists who, in some cases, were also partying. In turn, Lockdown sceptics pointed out the flaws in the government’s policy by leaking. It’s also improbable that the neighbours who surreptitiously recorded and divulged the altercation between Boris and Carrie to the Guardian harboured sentiments of unwavering admiration for Johnson.

People do not always follow the rules or behave well behind closed doors. Rather than defeat one’s opponents through argument or the ballot box, it’s become easier to tell on them. Exposure of hypocrisy or bad behaviour has become an end in and of itself, bypassing other more rigorous, and indeed political, forms of accountability.

The war on private conversation

My sympathy with the government’s arguments regarding the importance of private conversations was also tested in light of other events. In September, the controversial  Online Safety Bill completed its passage through parliament. Though watered down - the ‘spy clause’, which would have made end-to-end encryption impossible will no longer be enforced - the law contains a provision that could require messaging platforms to use ‘accredited technology’ to identify kinds of content (particularly terrorism content and child sexual abuse material) if they receive a notice to do so by the communications regulator Ofcom. This has the potential to threaten to the integrity of private conversations.

As it happens, Section 127 of the Communications Act (2003) already makes it a crime in the UK to post anything ‘grossly offensive’ on a ‘communications system’ . And, as a consequence, private messages have landed people in prison. 

In 2022, two policemen were jailed after sharing posts on a private WhatsApp group, including vile and disgusting jokes about rape and sexual assault. During the sentencing, district judge Sarah Turnock said: ‘The persons to whom these messages relate will undoubtedly have been caused great distress by knowing police officers find it funny to joke about them in such a deeply offensive manner.’ That is, without question, true. But the messages were not intended for them, or the public, but for select individuals.

Turnock also said the fact that the offensive messages were shared on a covert WhatsApp group was more damaging than if they had made in public. But that is not true. The fact is, we do say terrible things to each other in private. Not just in jest, but nasty, horrible thoughts that we don’t want anyone else to hear. 

In private, we reveal ourselves distinct from our public personas. We engage in foolish, impulsive discussions and let loose the frustrations that weigh heavily on our hearts. We jest, vent and dare to utter the unthinkable. In these unguarded moments, we might say things we simply should not in the company of others. But this provides an important function, and not having such a space is a denial of autonomy and freedom.

Until the late 1960s, privacy was so esteemed in the West that its erosion was the subject for countless dystopias, like Nineteen Eighty-Four and Brave New World. The accepted view was that we in the West preserved privacy, while totalitarian states destroyed it. Warnings about where the erosion of privacy could lead were plentiful and powerful. What is unfolding in the West is a historic change in attitudes towards the private sphere. Since the seventeenth century, it has been accepted that there is a crucial distinction between what a person says in private and their public speech, a demarcation private life and public life. It seems this is no longer the case.

In March 2021, the SNP - the governing party in Scotland - put an end to the sanctity of private conversations in a Scottish person’s own home. The Hate Crime and Public Order (Scotland) Act abolished the common-law offence of blasphemy. It also criminalised speech if it was deemed to be ‘stirring up hatred’ against groups of people with ‘protected characteristics’: age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

Unlike all other regulations on speech in the West, the Act has no ‘dwelling defence’.  That means that what one says in the privacy of one’s own home can be subject to prosecution - punishable by up to seven years in prison, an unlimited fine, or both. It has never been clear either to the police or the courts what ‘stirring up’ actually means, and the law has yet to be enforced, three years after it was passed.

Significantly, Humza Yousaf - then justice secretary, now the first minister - justified removing the dwelling defence. Children, family and house guests, he said, must be ‘protected’ from hate speech within the home. Introducing the Bill to the Scottish parliament’s Justice Committee, he asked MSPs (italics my emphasis):

‘Are we comfortable giving a defence to somebody whose behaviour is threatening or abusive which is intentionally stirring up hatred against, for example, Muslims? Are we saying that that is justified because that is in the home?… If your intention was to stir up hatred against Jews… then I think that deserves criminal sanction.’

Yousaf makes no distinction between saying something at home and saying something in public. He further argued that a dwelling defence would draw an ‘entirely artificial distinction’ between public and private speech.

Not only is the government suspicious of what people say to each other in in private, it is the mood music of our times. Private conversations are treated almost as if they are dangerous. 

In an article titled ‘What’s wrong with WhatsApp’, the sociologist William Davis summed up the threat posed by private conversation on the app:

‘It’s understandable that in order to relax, users need to know they’re not being overheard – though there is a less playful side to this. If groups are perceived as a place to say what you really think, away from the constraints of public judgement or “political correctness”, then it follows that they are also where people turn to share prejudices or more hateful expressions, that are unacceptable (or even illegal) elsewhere. Santiago Abascal, the leader of the Spanish far-right party Vox, has defined his party as one willing to “defend what Spaniards say on WhatsApp”’.

Davis continues:

‘What makes WhatsApp potentially more dangerous than public social media are the higher levels of trust and honesty that are often present in private groups.’

Davis has a point. A space of honesty and trust is the threat of privacy; but also its value.

Privacy serves not only as an outlet for emotional release, but is also a fertile ground for introspection and the cultivation of our inner lives. It’s an essential space for the individual to grow. Without the opportunity to express ourselves candidly within the confines of privacy, we are deprived of the means to explore, test, and untangle the complexities of our thoughts and emotions. A person without privacy would be stunted.

Privacy is also essential for intimacy. It’s a realm where we unveil our vulnerable selves, a sanctuary in which we unwind and share our unguarded personality with those we trust: friends and loved ones. It’s where we develop bonds of affection and solidarity.

The private realm serves as an incubator for the self and for ideas that go on to play a vital role in civil society. All new ideas, promising and flawed, should undergo scrutiny and uninhibited inquiry before entering the public domain. In this sense, in nurturing an individual cut out for public life, and acting as a testing bed for thoughts and knowledge, the private realm is essential for the public realm.

The contemporary drive to eliminate controversial and antisocial opinions and speech from the private realm and force them into the light, encourages people to conduct themselves as if they have a spy on their shoulder. It will lead to a world in which we filter everything we say through a kind of internalised show-trial, encouraging conformity and uniformity. And since everyone says awful, silly and strange things, it will lead to distrust and a never-ending search for hypocrites. In destroying private life, public life itself will be degraded.

Tiffany Jenkins is speaking on the keynote debates WHATSAPPENED TO PRIVACY? at the Battle of Ideas festival, alongside Manifesto Club director Josie Appleton, Conservative MP David Davis and Daily Telegraph columnist Tim Stanley. Tiffany is the author of the forthcoming book, Strangers and Intimates: the rise and fall of private life. Sign up to Tiffany’s Substack – Strangers and Intimates.