Security officials will not be able to compel overseas-based firms to hand over data on customers’ web, email and mobile text use
Home Office security officials are to rely on the voluntary collaboration of overseas-based social media companies such as Facebook and Twitter to comply with requests from British police and security services to collect and store for personal data tracking web, email and mobile text use.
The detailed draft communications data bill published on Thursday by the home secretary, Theresa May, includes provision for civil court injunctions to be obtained against British-based internet and phone companies that fail to comply with a scheme that critics have dubbed “a snoopers’ charter“.
Home Office officials appear to be relying on their claim that the majority of overseas communication companies already operate under “similar, if not more intrusive legal regimes without the rigorous safeguards” provided by the proposed UK legislation. But precise details of how the powers to seize data and force companies to monitor data will operate have been deferred until the publication of regulations.
May said that they would not be requiring all companies to store all records of internet use but declined to name which companies would be included or discuss the criteria to be used.
However, an official privacy impact assessment published alongside the draft legislation does acknowledge that enabling police and security service access to personal communications data that is not already collected for billing purposes by the web and phone companies does involve significant risks to personal privacy.
The Home Office says there are risks that data may be accessed without the necessary approvals, that inaccurate data may be supplied, and that it may be insecurely stored but argues that new safeguards in the legislation mitigate the risks.
A general impact assessment also confirms that the Home Office has given a “blank cheque” to the communications industry and will reimburse all the costs of collecting and storing the personal data for up to a maximum of 12 months. It does, however, disclose that the minimum price tag to the taxpayer is expected to be at least £1.8bn over the next 10 years and that does not allow for VAT, inflation or depreciation. It appears a significant slice of the cost – £859m – is to be spent in the earlier years of the project to invest in the systems needed to capture, retain and transmit the data.
The Home Office admits this is likely to understate the final costs of a scheme that will have to adapt to the rapid pace of technological development, such as the introduction of mobile 4G, and changing behaviour patterns in using the web.
Ministers claim that the cost of the scheme, which they say is vital to the fight against crime and terrorism, is outweighed by alleged benefits valued at £5bn to £6.2bn from preventing tax fraud, seizing criminal assets and safeguarding lives.
More than 550,000 requests for communication data were made by the police and security services last year to assist in investigations. This figure can be expected to increase if the powers are expanded.
The home secretary insists the internet state snooping scheme will only involve the collection and storage of the “header data” – who sent what to whom, when and from where – and not the actual content of the message.
But a debate is raging among technical experts about whether the system of “automatic filters” that the legislation envisages is to be put in place to collect the data is able to do that without grabbing the content as well.
Charles Farr, the head of the Home Office office of security and counter-terrorism, said he was confident the technology existed and was reliable enough to achieve that. Interception of the content of email, phone and other communications needs a warrant signed by the home secretary.
May said communications data was a vital tool for the police to catch criminals and to protect children. She said: “If we stand by as technology changes we will leave police officers fighting crime with one hand tied behind their backs.
“Checking communication records, not content, is a crucial part of day-to-day policing and the fingerprinting of the modern age. We are determined to ensure its continued availability in cracking down on crime.”
The home secretary said the plan was a coalition policy and now had the backing of the deputy prime minister, Nick Clegg. A special scrutiny committee is to examine the detail of the bill before it is introduced into parliament in its final version.
But former Conservative home secretary David Davis sharply criticised the scheme as “incredibly intrusive” and recalled that David Cameron himself had attacked a very similar scheme when it was put forward by Labour in 2009.
“If they really want to do things like this – and we all accept they use data to catch criminals – get a warrant. Get a judge to sign a warrant, not the guy at the next desk, not somebody else in the same organisation,” said Davis.
He was backed by Rachel Robinson of Liberty, the human rights organisation, who said: “The argument for the snooper’s charter is that we must all compromise our privacy because crime sometimes happens on the web.”
A leading Liberal Democrat critic, Julian Huppert, who is to sit on the scrutiny committee, said that his immediate concern was that clause 1 of the bill would allow “pervasive black boxes that would monitor every online information flow – an idea which is clearly unacceptable”.
Government plans to allow email surveillance are among the most serious threats to freedom in the democratic world
As we welcome the glimmers of democracy in Burma and applaud the heroic struggle for freedom and rights in countries such as Russia, China and Syria, it beggars belief that Britain now contemplates a law that will allow police and security services to access data from every phone call, email, internet connection and text message, without a warrant.
The millions who suffer under dictatorships will be astonished that we are about to let slip – with so little protest – the freedoms for which they continue to sacrifice so much.
Privacy from state snooping is the defining quality of any true democracy.
If the bill that is reported to be in the Queen’s speech next month is made law, Britain will overnight become a substantially less free country, our status as one of the beacons of freedom seriously diminished. This is among the most serious threats to freedom proposed anywhere in the democratic world. It competes with the very worst of Labour’s authoritarian laws and the last government’s morbid obsession with personal information.
Those promoting the bill, which will allow GCHQ to conduct real-time surveillance of a person’s communications and their web usage, insist that the state only wants to know who’s calling who, and that the content of messages, emails and texts will remain private.
It is an assurance that should be treated with the greatest possible scepticism for two reasons.
The law of function creep means that oppressive measures passed to address terrorism and crime are invariably deployed in much less threatening contexts. For example, the spread of surveillance under the last government’s Regulation of Investigatory Powers Act resulted in local councils using counter-terror methods to mount undercover operations against fly-tippers and those suspected of lying in school applications.
Once the intelligence services and police have these powers to insist that internet and phone companies hand over our data without our knowledge, in a crisis it will be a short step for the same people to argue that they need to start reading our communications.
How long before messages between trade unionists or those legitimately engaged in protest are subject to routine interception by the authorities, because their activities trouble the state?
Already, automatic number plate recognition (ANPR) cameras monitor Britain’s major roads, and real-time surveillance is a feature of the system. If we let this come about without an act of parliament, the argument will go, there surely can be no real objection to allowing the content of our communications to be read.
Is it simply the predictable cynicism of the political trade that lets the home secretary, Theresa May, bring forward this measure, which is every bit as intrusive as Labour’s Interception Modernisation Programme, which conceived a vast silo of communications data?
I am not sure, but what I do know is that a few years back I sat on Liberty’s conference platform listening to May attacking Labour’s civil liberties record, just I sat next to the justice secretary, Ken Clarke, at parliament’s joint committee of human rights and heard him speak about the balance between liberty and security. Now he proposes a bill to let a minister close courts and inquests to the public, and allow the evidence to be heard in the absence of one party and his lawyers: secret justice, coalition-style.
These things ought to be a deal-breaker for the coalition because they go against everything the Lib Dems said they believed before the last election, and indeed against the coalition agreement itself, which placed an emphasis on privacy and civil liberties. These principles are quickly forgotten when plausible spooks come through the back door and invoke all manner of terrors.
Even so, it is surprising to see Nick Clegg, and such figures as Sarah Teather and Vince Cable bless, if only by their silence, a system of total surveillance that would be halfway acceptable to the Chinese and North Korean governments.
Perhaps one thing in the politicians’ defence is that both the surveillance bill and the proposal to greatly increase secret hearings were inspired by civil servants and agency heads, rather than politicians: this is the agenda of the unelected “deep state” officials who never have to go before the electorate and can run their affairs without being inconvenienced by too much public scrutiny.
Both bills, if they become law, will vastly increase state power, which is why officials have been lobbying for measures like these since well before the coalition was born. Politicians are there to defend us against such people, not to oblige them.
When the head of the office for security and counter-terrorism, Charles Farr, or the head of MI5, Jonathan Evans, make these suggestions, they should be told in no uncertain terms that they are unacceptable in a liberal democracy. Forgive me for being personal, Nick, but that is why so many civil libertarians backed you at the last election. You need to step up to the plate on this one.
Why not just let the state have all our information? Is it worth fighting in an age when Google and the phone companies know so much about us already? The answer comes from the German philosopher Wolfgang Sofsky, who wrote: “Privacy is the citadel of personal freedom. It provides defence against expropriation, importunity and imposition – against power and coercion.”
The more practical objection is that police and security services are capable of getting things wrong, as well as abusing a system that allows such power over ordinary citizens. There have been prosecutions of police officers for misuse of the police national computer and the ANPR surveillance system. Given the countless cases of police misconduct and present worries about the standards of Britain’s police, it is probably wise not to hand them such an intrusive tool.
The ability to trawl through phone and email records will throw up huge numbers of false positives, with the result that innocent people will come under intense scrutiny without having done anything wrong or even knowing why they are being monitored.
This surveillance system is the instrument of a Kafkaesque state that grants itself the right to universal suspicion, while enjoying the protection of a new law, brought in by a lawyer, that allows evidence of official misconduct to be heard in secret.