UK government plays bait-and-switch to push through “Snoopers Charter”

Douglas Crawford

Douglas Crawford

November 3, 2015

On Wednesday, amid a storm of claim, counter claim, smokescreens, backpedalling, and FUD, the UK government is to publish its controversial draft Investigatory Powers Bill (aka the revived Snoopers Charter.)

Controversy over the wide-ranging proposals that initially referred to forcing ISPs to keep records of all British citizens’ web browsing history, of “banning encryption,” and of requiring international technology companies such as Facebook, Google, and Apple to hand over data on their customers to UK authorities, has been further enflamed by accusations that the more extreme proposals are a deliberate ploy by the government.

It is argued that the Conservatives always knew its proposals were completely unworkable (after all, how could it realistically impose such requirements on powerful international tech giants, for example?) but has instead used them as a smokescreen, allowing it to a stage a “backtack” (in classic “bait-and-switch” style,)  the real aim of which is to trick Parliament (and the public) into accepting its more “moderate” proposals.

These “moderate” proposals, however, are pretty damn scary!

ISPs and telecoms companies will keep detailed metadata on all customers’ internet, phone and social media activity for 12 months. The government is keen to stress that although details of which websites will be recorded, the actual webpages will not be. However, as opposition Labour Party shadow Home Office minister Keir Starmer told the Guardian,

There has been an agreed clear distinction between data and content, with data treated as the ‘who communicated with whom and at what point’, but not the content of that data. But by saying the agencies can collect information on pages visited, there is a sense that a difficult third category is being created that is a merger between data and content. If your browsing history is automatically accessible by the state, it is very close to granting full access to content and provides a picture of that individual’s life.

This is point hammered home rather well in a tweet by Edward Snowden.

Although not yet confirmed, it is expected that some form of judicial oversight will be required for the Bill to have any chance of being passed, but as Liberal Democrat peer and former MP Alex Carlile quite eloquently argues, such oversight is effectively meaningless when the vast majority of judges will have no understanding of what is required of them presented with a warrant,

“I think it is a rather glib comment to say ‘get the judges to authenticate everything’. Judges are, of course, very good quality men and women, [but] if judges are going to authenticate these issues, they have to learn about national security … At the moment, there is a handful of judges who have real understanding of national security.

The alternative, however, is for politicians to make to make the call (or even worse, for GCHQ to continue to operate without any meaningful form of oversight,) which is even more unpalatable.

Another key aspect of the bill regards encryption. After making a showy climb-down over claims the Bill would “ban encryption”, the government now claims that it has no intention of banning encryption… as long as the police and GCHQ can access the encrypted data! Duh!

Prime Minister David Cameron told ITV’s This Morning that,

As Prime Minister I would just say to people ‘please, let’s not have a situation where we give terrorists, criminals, child abductors, safe spaces to communicate’.  It’s not a safe space for them to communicate on a fixed line telephone or a mobile phone, we shouldn’t allow the internet to be a safe space for them to communicate and do bad things.

Horrible as all this formalizing of government surveillance is (and which will make the UK the most legally surveilled country in the world,) there is a strong argument that the new laws will be an improvement on the current situation, where GCHQ spies on everything everyone does anyway, with no public accountability, and virtually no oversight.

An Investigatory Powers Act would at least acknowledge that mass ubiquitous surveillance occurs, and place it into some kind of formal framework.

However, in between all the intense wrangling over exactly what the government can and should be allowed to access, what kind of oversight measures should be in place, etc., a key question seems to have been overlooked… should the government be spying on us at all?

With the timing of the proposals’ release being suspiciously close to the opening of the latest James Bond blockbuster, Spectre, in which heroic British spies work in the shadows to defend the public from evil, few have questioned government’s assertions (sans any hard facts) that surveillance is necessary to keep us safe in our beds, or its basic narrative that the issue boils down to a binary choice of privacy vs security.

This is a narrative that needs to challenged, because to surrender our privacy is to surrender our freedom. It betrays the libertarian traditions for which our ancestors fought so hard, and we are in danger of handing our liberty on a plate to a small elite who care for nothing other than cementing their own power and wealth.

Almost as important as the details of the Bill, should it pass it will enshrine the government’s right’s to spy on all its citizens. George Orwell would spin in his grave.

The government has failed to push through similar proposals before, and with strong opposition from all other parties, there is a good chance that it will fail again. Even if the Bill manages to clear the House of Commons, it remains highly uncertain whether it will be accepted by the House of Lords (Britain’s upper chamber), which only last week inflicted a highly embarrassing defeat on the government over proposals to reduce the income of some of Britain’s lowest paid workers.

An irony of the entire situation is that real criminals and terrorists can easily use privacy technologies such as VPN and Tor to evade ISP’s collecting their data, resulting in ordinary UK citizens becoming the only meaningful targets of this collection.

With VPN your ISP cannot see what you get up to on the internet, as all your browsing data is encrypted. The government can demand that VPN providers keep logs, to be handed over if presented by a warrant, but any such requirement would only be effective against providers based in UK jurisdiction, and would have no force against overseas providers.

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