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The four main problems with the Draft Communications Data Bill

Draft Communications Data Bill

Draft Communications Data BillI 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.