Tuesday, 25 September 2012

The road to 1984?

In June of this year the government published its draft Communications Data Bill, which, if passed would give the government far reaching powers to search and store private information. The government naturally have all sorts of justifications, principally security concerns, yet they successfully opposed a similar bill which the previous Labour government attempted to introduce.

The Coalition Agreement clearly states,  “We will implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion,” and, “We will end the storage of internet and email records without good reason.”

The previous government's draft bill had been originally been published in May 2008, and the then opposition parties, the Conservatives and the Liberal Democrats were instantly raising concerns. The Shadow Home Secretary of the time Dominic Grieve said, "Putting all this data into the hands of the government, will threaten our security not make it better." At the same time, Chris Huhne the Liberal Democrat spokesman was calling it, "an Orwellian step too far."

Such was the outcry that in April 2009, the government dropped this 'Intercept Modernisation Programme' (IMP), but carried forward with plans to require internet service providers to gather more data on customers activities. This is on top of the existing police and security service powers to, "read your emails, tap your phone, plant hidden cameras and microphones in your house and intercept your internet use. All of which can be done without any approval of a judge."

Such were the concerns that Grieve published a document in September 2009 entitled Reversing the Rise of the Surveillance State in which eleven proposals were outlined to protect personal privacy and hold government to account.

As the document rightly says in the executive summary:

New Labour has excessively relied on mammoth databases and wide powers of data-sharing, on the pretext that it will make government more effective and the citizen more secure. Its track record
demonstrates the opposite, with intrusive and expensive databases gathering masses of our personal information - but handled so recklessly that we are exposed to greater risk.

He boasts that any Conservative government's approach would be 'fundamentally different.'

They would hold fewer personal details, held only by those needing them, and, "Wherever possible, personal data will be controlled by individual citizens, who have the power to decide which agencies can access or modify this information."

The document emphasises that private citizens would be protected from the 'surveillance state' as part of a Bill Of Rights. The British Bill of Rights may still happen, and perhaps that will be brought up at the Conservative Party Conference, but it would not seem to tally with the draft Communications Data Bill currently being examined by a joint committee (of Commons and Lords) to report in November.

Considering the song and dance the Conservatives and Liberal Democrats performed when Labour brought forward their proposals, it doesn't really do much to build public trust, when as soon as they're in government, the coalition bring forward their own version.

As I said earlier, the authorities already have far reaching powers to use surveillance where they have genuine cause, such as in the case of six suspects arrested in July this year.  So to widen that to include the emails, texts and various other communications of citizens, seems unnecessary and contrary to the civil liberties rhetoric the Conservatives and Liberal Democrats have espoused over the years.

When first announced, Home Secretary Theresa May defended it as a way to catch more criminals, and to keep up with the technology they were using (though I'm sure the determined ones will find a away round this anyway), though as Conservative MP David Davis said, that it was 'incredibly obtrusive,' and would only, 'catch the innocent and incompetent.'

Mrs May's second defence was that it was different to Labour's bill, which wanted the data to be stored in one place. With the record of these big projects over the last few years, it was a good job it was abandoned, thanks in no small measure to the Conservatives and Liberal Democrats in the House. But it seems to me that more than anything the government is missing a principle here.

The problem is not really where or how the information is stored, but that it is tracked and stored in the first place, this is what is wrong.They stopped the I.D. Card legislation shortly after taking office, because they felt this was in intrusion into privacy, and against civil liberties in the United Kingdom, but it appears that has all changed now they're in government.

The full Draft Bill is available here but let's look at what it actually says, and demonstrate just what an attack on the rights of us all this bill would be.

In her foreword Mrs May says:

Communications technologies and services are changing fast. More communications are taking place on the internet using a wider range of services. As criminals make increasing use of internet based
communications, we need to ensure that the police and intelligence agencies continue to have the tools they need to do the job we ask of them: investigating crime and terrorism, protecting the vulnerable and bringing criminals to justice.

On the face of it this sounds perfectly reasonable, but within it there are many things to be concerned about. First of is the line about criminals making more use of the internet to communicate. It's almost as if that justifies tracking everyone's just in case we're doing something illegal. Jack Straw's attempts to significantly widen the DNA database in 2001 raised precisely these concerns.

Criminals also use cars, but are the police going to be checking us everytime we go out to make sure we're obeying the law? No they won't, because it would be too expensive and difficult, this however, in the great scheme of things is easy. The technology to track us already exists, and is stored in various places anyway, so the government is seeking to make it legal to delve into every aspect of our lives.

As for the safety of that data, considering the ease with which groups such as Anonymous (and individuals with a bit of know how such as Gary McKinnon) are able to break into supposedly secure databases, the thought of government also holding that information does not fill me with confidence.

In the opening paragraph you see what just how much information on your communications would be accessible without even reading them:

Communications data is information about a communication. The term is carefully defined in existing legislation and described in codes of practice and includes data about a subscriber to a mobile phone or email account, the time, duration, originator and recipient of a communication and the location of a communication device from which a communication is made.

So as you can see, immediately they can see who you contact, how often you contact them via mobile phone or email, and where you are contacting them from. It reminds me of that scene in the X-Men where the professor is able to track the movement and location of every mutant on the planet.

Naturally the government seeks to reassure us that this data is not the same as actually reading those communications, but the fact that they could read those emails, or read the transcript of a conversation if they 'had cause' is disturbing.

Now I don't think any of us would say that the ability to trace and track communications was wrong when the need arises, or if there is strong evidence of nefarious activities being planned. But being able to retain day to day data is just asking for trouble.

As you can see here, communication in many cases is already required to be stored for a time, with access by the authorities allowed under the right circumstances:

Companies providing communications services are currently required by law to store some communications data which they have business reasons to generate or process. They are not required to retain data which they do not need. The police and some other public authorities can then access specified communications data held by the service providers on a case by case basis. But
they must first demonstrate that the data is necessary to their investigation and proportionate to their aim and objective. The police have no power to get access to data where it is not connected to a specific investigation or operation.

There will be readers of this who will fundamentally disagree with this amount of storage and access, and indeed they may well have a good point. Some will take an absolutist view that none should be stored, but I think most of us would accept that a balance does need to be struck, and I would say that this is already as far as it needs to go, and some should be reined back. I would also repeal the legislation that enables so many CCTV cameras, but there is not space to go into in in this essay.

The government is expecting these companies now to store much more information, as it is harder for the authorities to access this data (I'm sure we've all seen TV detectives trace communications through telephone bills), and as is plainly stated, " the proposals set out here will require some communications service providers to obtain and store some communications data which they may have no business reason to collect at present."

The government is demanding data be stored purely for the government's own purposes, and of no value outside of that, therefore we need to know, what extra security will be provided to ensure this information is not accessible to other agencies? The plea is that existing safeguards will be extended, but I honestly don't think they can guarantee that, and as was mentioned earlier, supposedly the most secure agencies in the world are vulnerable. The government also tell us that 'nothing will authorise the interception of the content,' but if the content can not be read if deemed 'necessary' then what is the point of storing it in the first place?

One of the problems the government of a state has is to balance security, often cited as a government's first priority, and democracy and freedom. Admittedly we in Northern Europe have been fortunate in that since the Second World War, we have not had to face the threat of dictatorial governments. The only countries that have been under military and dictatorial rule in the time have been Spain, Portugal and Greece.

We looked to the east, to the Soviet Union and its satellites and decried the way they sought to control the lives of their citizens. If dissent rose, it was quashed as the likes of Andrei Sakharov and Anatoly Sharansky were imprisoned for raising their voices. If countries showed signs of going a different way from that dictated to them by the Soviet Union, such as Hungary in 1956, or Czechoslovakia in 1968, the tanks would roll in, crushing the rebellion and either killing or replacing the leaders.

Oh how we cheered as we saw the Berlin Wall come down, and invited these now free states to join us. Germany reunited, and many of those formerly under the Soviet yolk have become full members of the European Union.

We also rather complacently read the dystopian novels of Aldous Huxley and George Orwell, believing it could never really happen here. Orwell's 1984, a satire taking its ideas from Soviet and National Socialist ideology, is most often cited, a world in which a citizen's every move is watched, and even thinking the wrong thoughts can find you in room 101.

But it seems our complacency is becoming more and more misplaced as time goes on. In the United Kingdom we had found a need for a number of anti-terror laws as the troubles in Northern Ireland, but other than this we felt safe.

Peace, or at least the perception of it, in Northern Ireland led to these acts being superseded by the Terrorism Act 2000 and later the Prevention of Terrorism Act 2005 which was enacted when provisions in the 2001 Act were deemed to violate the European Convention on Human Rights.

Thus began the Labour Party's problematic relationship with civil liberties, the most well-known aspect being the attempt through the Counter Terrorism Bill 2008 to raise detention without trial to 42 days. There was a great outcry about this and the Conservative Home Affairs spokesman David Davis resigned his seat, and fought a by-election over the issue.  The measure was eventually dropped altogether, and in its early days, the coalition government reverted to 14 days.

Labour's original Data Communications Bill was an attempt to put into legislation the EU Data Retention Directive 2006, "which provided for a mandatory framework for the retention of certain communications data." This was first enacted in a 2007 Act, then superseded by the The Data Retention (EC Directive) Regulations 2009 (S.I. 2009/859), which meant internet and various types of telephone communications had to be retained.

Therefore, it seems even more puzzling that the government feels it is necessary to bring bring forward this legislation, as it already exists in sufficient form to do the required job. It is also politically hypocritical as they opposed and succeeded in bringing down Labour's own version.

It would seem it's all the fault of the defence review carried out by the new government in 2010 which allowed , "law enforcement agencies to obtain communications data within the appropriate legal framework ." It is also tied in very closely to RIPA (Regulation of Investigatory Powers Act) which ensures that the data collected is in accordance with the European Convention on Human Rights.

So it is obvious that it is not only in its political institutions that a democratic deficit exists, but also its legal ones, and any reforms must also focus on these areas.

As I have gone through this potted history of this sort of legislation, and the government's reasoning behind this new draft bill, there is one thing that keeps nagging at me, what are they not telling us? They can already do many of the things this bill would enable them to do, but also give them the power to demand communications organisations retain data they have no use for.

So what does the government want it for? They have successfully foiled terrorist and criminal plots over the last few years under the existing legislation, although it has also led to many arrests and releases as well.

Civil liberties in the United Kingdom have always been conditional, and free speech has been reliant on the tolerance of the government of the time. In the Elizabethan and Stuart periods, any criticism of the government was been treated harshly, and whilst Walsingham was Elizabeth's principal secretary Tudor England is often regarded as having been a 'police state.'

There are many who believe the modern Britain has reverted to this, as we are unable to escape CCTV cameras almost wherever we go. This being an example of unintended consequences from legislation passed by the last government. The British became known as the most watched people in Europe, and it was even satirised by The Simpsons.

And this new bill is rife with the dangers of unintended consequences, as data is held on every communication every citizen of this country makes. As I said earlier, holding the data under the circumstances mooted seems pointless without being able to access the content if it was felt needed. After all, there doesn't seem to be much difference between information about the communication and the actual content.

I few months ago I said to Labour Party leader Ed Miliband, that New Labour had, with some justification, been condemned for its approach to civil liberties, and that we should oppose this bill out of principle.

I am pleased to say he agreed, and so I am a little disappointed by Yvette Cooper's response which although it raises many importance questions, falls a long way short of outright condemnation. We will have to see how it is played when the joint committee reports, but I will be lobbying extensively to the leadership to reject the bill out of hand. I would rather Labour be hypocritical for now opposing something we once attempted to bring in ourselves, than for supporting a bill that my party brought down.

There are many reasons for opposing this bill are in this article by Henry Porter, and he sums it up much better than I could:

One good reason, as the Cambridge academic and database expert Professor Ross Anderson points out, is that old trick from the Labour years, which was to allow the secretary of state to make additions to the bill after the fact. This means that we have no idea what the legislation will eventually look like and it allows the secretary of state enormous discretion when it comes to the use of statutory instruments and afterthoughts of an oppressive and invasive nature.

Therefore I urge everybody to oppose this bill in whatever form it emerges from the committee, as our liberties really are at risk, as Dominic Grieve's document cited earlier amply demonstrates.

It is a sad indictment of modern government that they have come to believe that we can only be free and safe if they are more and more aware of where we are, who we're talking to and what we are saying.

1984 could be closer than we ever thought really possible.  

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