1984 rebuffed or postponed?

Earlier this year I wrote a very critical blog on the coalition government's draft Communications Data Bill which was being scrutinised by a joint committee of the Commons and the Lords. Finally the committee's report was published in early December 2012, and it was very critical of not only the bill itself, but also of the way it was written.

Right from the beginning the report gives a hint of how importantly it took its job, and its view on the government's role in security, of balancing, 'the safety and security of its citizens,' but with a duty to respect their rights, 'without avoidable intrusions on their privacy.'

The committee then get straight into their core criticism, and it is one that demonstrates why this bill should alarm us all: 

we believe that the draft Bill pays insufficient attention to the duty to respect the right to privacy, and goes much further than it need or should for the purpose of providing necessary and justifiable official access to communications data. Clause 1 would give the Secretary of State sweeping powers to issue secret notices to communications service providers (CSPs) requiring them to retain and disclose potentially limitless categories of data.

The committee is also very doubtful of the claims by the Home Secretary, Theresa May, that she would not use the powers in ways that would be considered overly intrusive and so recommends, 'that her powers should be limited to those categories of data for which a case can be made.' Indeed later on they say explicitly that current safeguards actually work better than is believed, and so prefer to see a strengthening of the roles of the Interception of Communications Commissioner and the Information Commissioner.

As I wrote in my original blog, the police and security services already have sufficient powers to investigate possible criminal and terrorist activities, and the committee is saying that is enough. Indeed they go on to say that if a case can be made for a future increase in powers then proper Parliamentary scrutiny would be required, and it should also apply if powers were to be extended beyond the many agencies, as well as the police, who already have access to the data already available.

The committee, unlike the government, seeks to enable the necessary agencies to properly investigate activities, without, 'the risk of intrusion into the privacy of the vast majority of honest citizens.'

Until 1984 who had access to communications data and what could be done with it was not protected by law, but it was in 2000 and the passing of the Regulation of Investigatory Powers Act (RIPA), that an attempt to regulate who could access what data and what they could do with it was made. But unlike the new bill it did not dictate which information should be retained, but dealt only with acquisition and disclosure. The new bill, on the other hand, expects data to be stored that is of no use to the service provider, and as I said previously, if the government don't want to access what is being said, why keep it?

I was equally critical in my previous blog of the Labour government which had a similar bill, but dropped it following protests from civil liberties groups, and the opposition in the House from all sides, including the Conservative and Liberal Democrat parties and the Information Commissioner was not convinced as he wrote, "that the case has yet to be made for the collection and processing of additional communications data for the population as a whole being relevant and not excessive." Eventually the proposals were dropped due to the amount of opposition, and the impending General Election in 2010.

When the coalition was created in May 2010, the agreement stated, 'We will end the storage of internet and email records without good reason,' but as we see it hasn't taken them long to go back on that. This is despite the Liberal democrats long, and creditable record in opposing such legislation, and the Conservatives own document published in 2009 Reversing the Rise of the Surveillance State.

The report includes a large number of examples of what it calls, 'a major encroachment into individual liberty,' which is quoted in the annual report of the Interception of Communications Commissioner. These include things like there being 1.85 million CCTV cameras in the UK (1.7 million being privately owned), the DNA Database, the ELMER database of suspicious activities, the National Pupil Database, and this is all in addition to the trail we leave in our electronic communications.

There are also examples of how communications data was used to prevent a terrorist bombing in 2002 or to catch the murderer of Jessica Chapman and Holly Wells. It has also been used in uncovering major cases of tax evasion, but as we can see, these already be done using the current legislation, so again I ask, why do they need to store more unless they intend to use it?

However, although the report cites many reasons as to how communications data is invaluable in catching perpetrators, this is to put it all in context, and is not to defend the intentions of the bill.

The committee spent a lot of time, and heard and read evidence from many sources on both sides of the argument. Much of the written and oral evidence can be found here on the committee's web page, although some of it remains secret.

Part of the government's defence is that some 25% of communications data is unavailable to investigators, and will increase with technological progress. But it is unclear where this figure comes from and the committee deems it to an 'unhelpful and potentially misleading' figure as there has not been a 25% drop in the amount of data available. Indeed they say that with in arrival of social networking since the passing of RIPA in 2000, the amount of available data has actually increased.

The service provider London Internet Exchange (LINX) wrote:

Certainly, as people make ever greater use of Internet‐based services, there is an ever greater quantity of data that either exists, or could be brought into existence by statutory requirement. However to say that this “is no longer always retained by communications providers” is highly misleading: communications providers are retaining more communications data than ever before and making it available to public authorities under existing law. The mere fact that even more data could be created, collected and made available hardly constitutes a loss.

However, the committee says that the real issue is not missing data, but 'a lack of ability on behalf of law enforcement agencies to make effective use of the data that is available.' That does not need new legislation to address this problem, but training and resources.

Although many service providers from the United Kingdom and overseas were invited to ask the Home Office questions, they were not consulted on the proposals, although the Home Office claims that they would have been aware of their thinking from the discussions had over time. But, and this is damning, the committee then more or less accuses the Home Office representative of lying and that the Home office were giving a different version to that of the CSPs and that 'On the face of it, there is an inconsistency between these two accounts.'

In the end the first view the CSPs had of the draft bill was under embargo, just a week before its publication. This is despicable behaviour by the government in my opinion, as they have sought to present Parliament and the service providers with a fait accompli and prevent proper scrutiny. 

The committee condemns the government's actions and attitude:

The evidence we received shows that United Kingdom CSPs were not given any details about the possible content of notices before the draft Bill was published, overseas CSPs were not consulted about the draft Bill at all, nor was there any further public consultation.

I think it is becoming plain that what the government is trying to do is predict what may happen in the future, and as we've seen with weather and economic forecasts over the centuries, these are notoriously inaccurate. The committee rightly comes to the conclusion that there is no good reason for granting such wide powers at this time, or that Parliament should do so on a 'precautionary principle.'

The committee, however, whilst aware of the dangers does seem a little complacent on the threat to web logs believing the safeguards in the bill as well as their recommendations would be sufficient. But they do go on to suggest that the Home Office investigate the technological, operational and financial implications of asking CSPs to only keep web logs on services that enable communications between individuals.

There are additional concerns which the report highlights, such as cases where information access has been self-authorised, which means that within the system abuse is possible. Another case was where it was used to track whether or not an applicant for a school place actually lived in the area, which is a ridiculous use of data supposed to prevent criminal activity.

These cases demonstrate just how easy it is for this information to be abused, and that if more data is stored then the opportunities for incorrect use will increase and that's without it being used for obviously criminal activity.

Then we come to the issue of which reasons data is accessible; national security, preventing crime and disorder, illegal financial activities, public safety, or to assist in identifying a deceased person. Now these by and large are areas where we might consider some limited access reasonable.

But then there are also a number of reasons for accessing data I find of great concern; 'interests of the economic well-being of the United Kingdom,' protecting public health, to assess or collect taxes and duties due. These seem to me to far beyond interest of national security, and although they might be in the public interest, that does not mean they should fall within the auspices of a bill such as this and are open to wide interpretation and would just be abused.

The bill does not come without an intense sense of irony, if unintended, there being an annex that links the bill to the European Convention on Human Rights which expressly says, 'Everyone has the right to respect for his private and family life, his home and his correspondence.' 

So once again government shows it has a different interpretation of this from the rest of us. The committee has further concerns with the reasons listed earlier and in the chapter's summary state:

We are concerned that the long list of permitted purposes for which communications data can be requested adds to public disquiet about the breadth of the Bill. While we do not make specific recommendations about how this list could be shortened, we recommend that the Government should consult on whether all the permitted purposes are really necessary.

Another issue to me is that are seven different Commissioners proposed for communications data oversight in the United Kingdom, and surely this is too many? Indeed the Information Commissioner, Christopher Graham, has said something similar, 'that there ought to be either a single privacy commissioner or a sort of primus inter pares,' and that not much thought had been given to whether these roles could be carried out by existing commissioners without creating others, and the committee supports this by calling for rationalisation of the offices.

There also appears to be a lack of thought going into how those who misuse data (see examples above) should be treated, as the committee actually feels the need to call for imprisonment as a punishment where serious cases occur. This strikes me as either incredibly complacent or evidence of sloppy drafting and the bill should be rejected on those grounds alone.

The report condemns the government even more  when it comes to costs and benefits describing them as, 'misleading and fanciful,' and a new cost benefit analysis included with a new draft bill. Wider and proper consultation should be undertaken and most importantly, the impact assessment should be more detailed and not used to basically try and delude Parliament into passing the bill.

The committee's overall conclusion is:

that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft Bill is too sweeping, and goes further than it need or should.

Whilst it is acknowledged that technological advances over time will change the nature of communications data, I am concerned that any bill of this nature will be the government's wedge into ever expanding intrusion, and they will be wanting to actually read our communications in the future.

The Conservative chair of the committee has said there should be a 'substantial rewriting' before the bill is presented to Parliament, and the Shadow Home Secretary Yvette Cooper has agreed with the findings of the report saying:

This detailed and thoughtful report shows the Government is making a complete mess of a very important issue...It is important that the police and security services can keep up-to-date with modern technology, but this bill is too widely drawn... and gives far too much power to the Home Secretary without proper safeguards,... provides too little protection for people’s privacy...  The Government have been slipshod with this bill from the word go...the Home Secretary needs to urgently rethink this legislation and get her approach right so that the police can do their job in fighting crime whilst the public have confidence their privacy is well protected too.

Although how this will translate when or if the bill is presented in the House I don't know. The Labour Party could either go down the road of outright opposition, (and as I've said previously I would rather be hypocritical for opposing this bill when we had something similar in mind, than for proposing it when we had been against in the past) or, and more likely I would think, proposing amendments along the lines recommended by the committee.

I am unable to find an official  government response to the report as yet, but David Cameron has said it will be rewritten, but he still insists that he is committed to giving the police and security services new powers to monitor internet activity, pointing out that the committee had said that there was a justification for doing something.

Still, it became an opportunity for Nick Clegg to show just how different the Liberal Democrats are from the Conservatives by threatening to 'block' it unless there was a 'rethink.' This in effect is a repeat of what committee member Julian Huppert said early in the committee's scrutiny, 'If, at the end of the process, the Home Office cannot come up with a bill that is acceptable to Liberal Democrats, then there will be no bill.'

That is a real danger that this bill, in whatever form it is presented to the House will become about politics rather than security or public safety and catching paedophiles and other criminals. The Conservatives want to be seen to living up to their reputation as the strong party on law and order, the Liberal Democrats as the defenders of civil liberties, and Labour as standing up for freedom but needing to be seen as strong on crime and the causes thereof.

The debates will generate a lot of heat, and will not about deciding which is the best way forward, but who can score the most points off each other.  My own preference is for there to not be a bill at all, as the principle of wanting to be able store and potentially read our communications is of itself wrongheaded.

The powers to investigate all these crimes exist now, we don't need to do anything other than clarify the definitions of what is communications data, and I'm sure there is a simple way of doing that without bringing in such a bad and over reaching bill.

The report is probably one of the most critical a Parliamentary committee has ever produced regarding a proposed piece of legislation, and the rigour with which they approached the task, shows that this is an approach that should be taken to more legislation.

The weaknesses in the draft are plain to see, and this is in addition to the basic problem of the government seeking to have our communications data stored 'just in case.' I hope that there is enough support in Parliament on all sides to vote this down when the government eventually gets round to presenting the rewritten bill, though I suspect they will await the outcome of the next General Election first.

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.