orbitalflower

IP bill changes nothing

Posted in Opinion on

Some better qualified commentators have weighed in on the UK’s Draft IP bill.

The Intercept

In the days prior to the publication of the Investigatory Powers Bill, the British government’s Home Secretary Theresa May claimed that the law would not be “giving new powers to go through people’s browsing history.” However, the text of the bill makes clear that this is precisely what the government is trying to do.

— Seven Major Takeaways From the U.K.’s Proposed Surveillance Rules, Ryan Gallagher, The Intercept

The Intercept’s first reaction to the bill agrees with my own. The law will formally allow unprecedented mass surveillance against the world, including innocent citizens of the UK and its allies. The oversight requirements and privacy requirements are extremely weak, and largely a sham from a government who has previously threatened to pull out of the European Union in order to repeal human rights legislation.

The Intercept previously reported that GCHQ already collects people’s browsing history. The legal basis is a secret interpretation of the Telecommunications Act 1984, which gives the Secretary of State unlimited authority to take any measures deemed necessary in the interests of national security. The new IP Bill will make the existing mass surveillance arrangements explicitly legal.

Although the bill doesn’t ban encryption, The Intercept notes that the law is so vaguely defined that it could be used to force any company with UK customers or any UK presence to backdoor their own encryption on demand.

The new bill prohibits spying on journalists without a warrant, but an exception allows British intelligence agencies to ignore that rule completely. Gallagher notes that this is weaker than the protections in the US.

Police requesting customer metadata will essentially be able to write their own warrants.

UK Human Rights Blog

Established under the Regulation of Investigatory Powers Act 2000, the Tribunal has spent the past fifteen years outside the regular structures of British justice. Indeed, insofar as architecture and geography matter in justice (and they do), it is remarkable that until recently the Tribunal was located inside Whitehall. Until Liberty v GCHQ was handed down in February this year, the Tribunal had never once found against the government.

— Interception, Authorisation and Redress in the Draft Investigatory Powers Bill, Cian C. Murphy & Natasha Simonsen, UK Human Rights Blog

UK Human Rights Blog is concerned that the Investigatory Powers Commissioner (IPC), who “may be the single most significant factor in the success of the new arrangements”, may be unable to handle the multiple responsibilities placed on it. “The proposal expects the IPC as a whole to be a self-critical, reflexive, institution in a field where such a culture has proven difficult to create and sustain.”

It’s also skeptical about the role of the Judicial Commissioner, whose job is merely to review warrants signed by the Home Secretary, not to decide whether or not a warrant should be granted. The Home Secretary also has the ability to bypass the Judicial Commissioner if she declares the warrant is urgent.

Interestingly, UK Human Rights Blog gives a figure that 2,500 such Home Secretary warrants were issued last year, or 48 per calendar week. If Theresa May spent only ten minutes deciding whether to approve each warrant, she would have to spend a full working day per week signing warrants. The IPC would have to spend at least that long applying scrutiny to the warrants, in addition to the office’s other responsibilities.

The bill ignores the recommendations of the Anderson Report and the UN Special Rapporteur that only an independent judge should sign off on surveillance warrants. The UK cabinet refuses to do this, and GCHQ calls it their biggest concern because many of their operations only get approved because no judge ever looks at the warrant.

UK Human Rights Blog is also critical of the Investigatory Powers Tribunal (IPT), “the only court of tribunal with jurisdiction over the intelligence agencies, and it is a deeply flawed institution.” Proceedings are often closed to the public and even to the claimants’ lawyers, making a fair trial impossible.

Conspicuous Chatter

The document comes bundled with a lot of supplementary material, purporting to be from “A Guide” to “Explanatory Notes”. As Richard Clayton advised me a while back: don’t read them! Those are simply smoke-and-mirrors, designed to mislead, provide material for lazy journalists and confuse the reader — the only thing that has legal validity is the law itself on pages 35-227.

Investigatory Powers Bill: The Juicy Bits, George Danezis, Conspicuous Chatter

This analysis of the bill spots very interesting details:

Nothing’s changed

Continued secrecy

Foreign vs domestic

Data vs metadata

Confusing wordplay

BBC

However, when publishing that story I was met with silence from security officials about what capability had been used and on what legal basis.

It is now clear that the capability was authorised by an obscure but sweeping clause in the 1984 Telecoms Act which basically allowed the government to order a telecoms company to do anything it directed and to keep that secret.

This was precisely the kind of power that David Anderson QC, who reviewed the existing surveillance legislation, described as “undemocratic” because of its lack of transparency.

– How and why M15 kept phone data spy programme secret, Gordon Corera, BBC News