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Draft Communications Data Bill

The four main problems with the Draft Communications Data Bill

I was kindly given a hard copy of the Draft Communications Bill, the Snoopers Charter, yesterday evening by the inestimable Dr Jenny Woods. A brief review of the contents suggest four main problems: the foreword, the beginning, the middle, and the end.

Yes, it’s that bad. As a first reaction, here’s a key point from each section to highlight the authoritarian, statist thread running through the document.

The Foreword

“This information has played a role in nearly every serious organised crime investigation and in all major Security Service counter-terrorism operations over the past decade and is fundamental to policing across the UK.”

Translation: Because in serious cases, a good police officer will pursue every avenue, we will now make it possible for even bad police officers to pursue everyone, in every case.

In fact, it’s even worse than that. There doesn’t even need to be a case. See The Middle (after the jump) for just how broad the proposed powers are.

Note also that is is pure hyperventilation. As an example, a Home Office briefing (circa 2006) references the attempted firebombing of Glasgow Airport a few years back as the first example of communications data being used in to combat terrorism. Except that communications data did not help detect, prevent, or convict the terrorist. No-one is suggesting that security forces shouldn’t investigate the activities of someone who just tried to blow up an airport (or is suspected of planning to do so). But neither should anyone be suggesting that powers made available in the case of a terrorist attack should be made available to police as a matter of course.

As a reminder of just how paranoid and over-reaching the forces can be, I refer you to #TwitterJokeTrial.

The Beginning

Part 1, Clause 1 (1): “The Secretary of State may by order (a) ensure that communications data is available to be obtained from telecommunications operators by relevant public authorities in accordance with Part 2, or (b) otherwise facilitate the availability of communications data to be so obtained from telecommunications operators.”

Translation: The State will force the monitoring of all citizens, all the time.

That is the problem in a nutshell, right out of the starting gate. From the very first clause, this Bill is not written from a position of defending British freedom. It is written from the perspective that our freedom and privacy must be taken away from us for our own good.

The Middle

Part 2, Clause 9 (6): ” .. it is necessary to obtain communications data for a permitted purpose if it is necessary to do so for the purpose of preventing disorder .. in the interests of public safety .. for the purpose of protecting public health ..”

(7) The Secretary of State may by order amend subsection (6) so as to add or restrict the permitted purposes.”

Translation: The State can get access to personal information for any reason it cares to make up.

The looseness of this Bill cannot be overstated. Because soon we get to Clause 11: “Judicial approval for certain authorisations”

Translation: Judicial oversight is not required for most authorisations.

This essentially gives the state the ability to monitor citizen’s private lives practically at will.

The End

Part 3, Clause 25 (1): “Part 1 applies to public postal operators and public postal services as it applies to telecommunications operators and telecommunications services.”

Translation: For the first time since it was founded in 1516, the State wants to monitor your mail.

The last bit is important. It reveals the fundamental untruth at the heart of this bill. It is not a bill to enable the police and security services to keep up with technology. It is a bill to vastly extend the reach of the State, even for technology that is five centuries old. Skype this ain’t, in other words.

So what’s to be done?

There is a process of scrutiny and consultation to follow. We need the activists and advocacy groups to engage as much as possible. I’ll be following Jenny’s lead with regards to Lib Dem activities, and would also refer people to Privacy International and the Open Rights Group as non-partisan pressure groups.

This is important not only to stop the paranoia-driven authoritarians, but also to hold the Lib Dem leadership to account. Already, we are seeing from Julian Huppert MP emotively powerful language in defence of civil liberties that nonetheless leaves a space the size of a Tesco carpark to do a U-Turn in. References to incremental improvements simply encourage hard liners to first draft a Bill with pre-prepared compromises built in. Standard negotiating procedure, in other words.

It’s the easiest thing in the world to put up the appearance of a good fight, then afterwards spin the failure to hold the line. I do have a fair degree of sympathy for the realities of political speech that Julian has to operate within – but it’s also the activist’s job is to make it as hard as possible to backtrack.

What are the points to be made?

Well, yesterday evening’s skim reading apart, the bill will require some close reading to identify the full range of responses necessary. One early action could be to define the principles at stake. Here’s what I said recently regarding the Royal Mail:

The Royal Mail was founded in 1516. For almost five centuries, it has never been seriously considered that to remain a free and safe country, the government should track every single letter, parcel and postcard that we send to each other.

By every measure of quality of life, things have improved over these 496 years, and the ability of free people to write to each other in private has been one principle by which this has happened. There’s no need to overturn that principle.

That is a centuries-old line in the sand defining British freedom. The UK has a long, deep tradition of civil liberties, that is also reflected in more modern upstarts such as The Universal Declaration of Human Rights. Article 12 states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

You know, that’s the kind of thing we fought the Second World War for. There’s been other trifling incidents in British history such as the Magna Carta (13th century). Defending individual liberty and privacy is about old school as it gets.

Already as a party, the Lib Dems have missed an opportunity to anticipate the content of the bill (despite plenty of Lib Dem activists anticipating the content of the bill), and therefore laying out some red lines. The inclusion of Clause 25 regarding the postal service proves just how little influence we’ve had to date on the actual substance of Conservative and Home Office intentions. Already we’re going to have to spend political capital just getting back to the starting line. That’s slightly worrying. Why is it surprising that the Tories – a secretive, authoritarian party – want to pass a secretive, authoritarian surveillance bill?

Still, it looks like we’re beginning to wake up. Jenny gave me an encouraging update on the state of play – my concern about the lack of clear messages aside, Julian Huppert MP is by all accounts gearing up for a serious political battle. He and Paul Strasburger deserve our full support on the scrutiny panel.


8 Comments Post a comment
  1. “The inclusion of Clause 25 regarding the postal service proves just how little influence we’ve had to date on the actual substance of Conservative and Home Office intentions.”

    Er, no, actually, that’s our fault, and it shows they ARE listening to us. In the original conference call with Cleggy’s SpAds several of us jokingly pointed out that none of this applied to the post, and it would be ridiculous to suggest it even could… Us and our big mouths, eh?

    I’m genuinely expecting a Shirley Williams/NHS job on this – “but we’ve achieved LOTS of compromises, look, they’re only going to spy on you a BIT!” – and that will break my heart.

    June 15, 2012
    • Jon #

      All that said Jennie – in the absence of hard data, you could be absolutely right. And it is great that we have a voice.

      But like you say, if all that gets us is fighting a Shirley Williams/NHS-like battle, then my real point remains: the party needs to learn how to recognise and prepare for foreseeable events.

      June 15, 2012
      • If you look at the views of the actual party – votes taken at conference, etc. – the party is pretty good at seeing stuff like this coming. It’s getting the leadership to listen and not ignore that’s the problem. I think that all politicians should be made to watch Yes Minister before they are allowed to sit in the house of commons – the episode Big Brother is very on point for this particular issue, and that was nearly forty years ago now.

        June 15, 2012
  2. Jon #

    Sorry, I disagree, on three points.

    First, the feedback I kept on hearing was, “We don’t know what’s in the Bill.” We don’t know for sure what’s changed courtesy of the Lib Dems, but I have reason to believe the security forces were aware of the existence of the postal service before that conference call. If I were planning to track all online communications, it would follow that I wanted to track all physical mail, too. I doubt we’ve had that much influence simply because that clause is in there.

    Secondly, the assumption that it’s ridiculous to include the mail is a bad one; it assumes we’re all thinking to the same set of values. The reality, I fear, is that because the technology now exists to track the post on a large scale, the Home Office has been keen for quite some time to implement it. Rather than a joke, tracking the mail should have been treated as a serious threat.

    Third, the point should not have been to say none of this applies to mail. That’s essentially a technological argument, which tend not to be too powerful in my view. In a principles-based argument, any legislated powers *should* apply to mail in some context. THAT could form the real, evidenced-based nub of our argument – these powers haven’t been necessary for centuries, the invention of Facebook and Skype doesn’t change that, and the Bill is fundamental broken.

    Finally, while it’s great a call was arranged so that activists can raise concerns, it shouldn’t have been left as a private matter. The party line has been a complacent, “But we need to see the draft bill before we can do anything.” Instead, we should have been talked about it loudly, publicly, as a party talking point, in advance of draft publication. Never miss an opportunity to define the debate.

    Instead, as with the NHS Bill, as with tuition fees, we’ll now be fighting just to get rid of the worst of the bill. That takes political capital. Despite all of the content being entirely predictable months ago.

    It would be nice, just once during this parliamentary session, to see the party ahead of the curve in public, rather than always just reacting to whatever we’re given to deal with.

    June 15, 2012
    • We kind of figured that because we were talking to Nick Clegg’s SpAds we WERE all coming from the same set of values; it quickly became apparent we were not. The thing that really got to me was the incredulity with which one of them said “hold on, are you guys trying to tell me you object to this in principle” like the idea had never even occurred to him that anybody could.

      “it shouldn’t have been left as a private matter.”

      That was the whole point of the conference call, at least the one I was in on, as far as I understood it: so that bloggers could shout informedly about what was going on. We were all going to blog about it anyway; the idea of the call was to let us do so with some more information than we previously had.

      Still, thank you for the reminder to word things more carefully – I genuinely thought that “us and our big mouths, eh?” would make it clear that I wasn’t totally serious about the authoritarian clamping down on the mail being entirely the fault of a bunch of lib dem bloggers, but obviously I was wrong, as your great big mansplanation makes clear. I shall try harder in future.

      June 15, 2012
  3. Jon #

    Sorry, didn’t realise I was mansplaining. My reply was long because I found it frustrating hearing that the message to activists was, “Stay quiet and wait for the draft, there’s nothing to be done just now.” I live in the vain hope that the party leadership will eventually learn how that kind of patronising achieves little more than winding people up.

    There was something to be done. You guys raised all the relevant points in that conf call. The call should indeed have been private, but some points could have been made into talking points. What was done about them? Not much, really.

    So it was me not being clear. What I mean about shared values wasn’t about the Lib Dems on that call, but the Lib Dems versus the proposers of this bill. The Lib Dem view is so different to the surveillance-obsessed that what seems ridiculous to us might be perfectly reasonable to them.

    The job of anyone planning a strategy is to go, “You know the thing our guys think is crazy? I’m not so sure our opponents aren’t already planning it.”

    I really didn’t mean to sound like I was having a go at you. My point was supposed to be that the party failed to respond effectively to the concerns you raised. And that gets me riled up.

    June 15, 2012
  4. Jon (another) #

    Yes, I’m worried about the ridiculous increase in the allowable reasons for snooping. Even in the RIP Act 2000, specifying crime rather than “serious” crime was a huge mistake, leading to local councils spying on people for suspected fly tipping and to ensure they were really living in the school catchment area they claimed. Instead of restricting it, this bill widens the potential reasons into so many scary areas that have nothing to do with crime or security: civil offences, the prevention of disorder, public safety, public health, assessment of tax liability, mitigation of damage to mental health, etc, etc; and as you point out, the catch all clause meaning anything else the Home Secretary feels she can get away with.

    Yes, I’m worried about the fact that while she talks about new forms of communication the Home Secretary includes snail mail and package services. And like you I don’t think this is at all trivial.

    But what I really worry about is Sections 14-16: the filtering arrangements. This allows for a new public body under the Home Secretary access to all the raw data it deems fit from any number of communication providers. (Not included in the £1.8 billion costs already admitted to, I’ll bet.) It further allows any investigation to profile and to go fishing in the database.

    If you want to find out if say a group anti-war protesters are planning to meet up. You ask for all the people you identified at the last rally, and who they have been communicating with recently, and all their records too. Further, it will for the first time allow you to link different forms of communication data. Who did you phone after browsing such and such a web site? Where did you have that necklace you bought on Amazon delivered to?

    As for profiling: give me the names and addresses of all the people who have surfed multiple Muslim web sites and anti-war web sites, between the ages of 16 and 25, etc, etc. Now tell me in this group who has been talking to whom. At best data profiling facilitates sloppy policing, turning up by random chance individuals and groups who appear suspicious but really aren’t.

    We have moved away from solving crime and terrorism, through crime prevention, to the monitoring of lawful behaviour that some senior apparatchik frowns upon.

    Even now the Data Commissioner can only check up on a fraction of the more than half a million authorisations made every year under RIPA. If this bill is made law, how many disproportionate authorisations will slip through his widely-spaced, after-the-fact net?

    June 15, 2012
    • Jon #

      Yes, completely agree about the filtering. I’ve posted elsewhere on distributed systems as the preferred alternative to a central database.

      It’s just another sign of how badly we (the Lib Dems) got it wrong as a party when we focused on not allowing a central database as if it was some kind of achievement. Hopefully we’ll be more on the ball over the coming months.

      June 15, 2012

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