ORG policy update/2015-w22

This is ORG's Policy Update for the week beginning 22/05/2015

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Government Bills

Theresa May gives details on the Investigatory Power Act in Parliament

The new legislation to "modernise the law on communications data” announced in the Queen's speech on Wednesday, May 27th, received more substance on the next day as Theresa May MP, Home Secretary, gave the first speech of her mandate in the House of Commons. She stated that the new Investigatory Powers Bill should address the “still significant gaps in our law enforcement and intelligence agencies’ capabilities”. This rather vague statement has been understood by some commentators as a will to access encrypted data. The Bill, which should be introduced “in the coming months”, will also address the fact that the Data Retention and Investigatory Powers Act 2014, which was rushed through Parliament last year and allows for bulk collection of data, has a sunset clause at the end of next year. It is also expected to pick up elements from the Communications Data Bill, the so-called “Snoopers' Charter”, which the Conservatives couldn't pass while in coalition with the Liberal Democrat Party, and which was severely criticised for the blanket data retention it allows for. However, the Home Secretary announced that the Bill will take into account the review of investigatory powers made by David Anderson an independent reviewer on terrorism legislation, that is expected to be published in the next few days and that should address the issues of providing safeguards for privacy, transparency and democratic oversight.

Although the precise details of the Bills have yet to be announced, the opposition from the Lib-dems and the Labour Party is already strong.

British Bill of Rights proposed in the Queen's speech amid controversy

A British Bill of Rights replacing the Human Rights Act was announced in the Queen's speech. It aims at “protecting against abuse of the system and misuse of human rights laws”. As the Human Rights Act is the transposition of the European Convention on Human Rights, scrapping it would mean exiting the jurisdiction of the European Court of Human Rights. However, this might prove difficult for the Conservative government, even with its majority in the House of Commons, as opposition to the proposal inside the Tories has already appeared. The cautiousness of the government can be seen in that it is the only “proposal”, while the rest of the Queen's speech is made of “Bills”. Still, Michael Gove announced he will present a British Bill of Rights in the autumn, but the Government made the precision that it was important to “get it right, rather than quickly”, despite the Conservative Party's campaign promise to scrap the Human Rights Act in the first hundred days of its majority.

Bill on referendum to leave the European Union introduced

As it was promised by David Cameron during his campaign, and as it was announced during the Queen's speech, an European Union Referendum Bill was introduced on Thursday, May 28th. The question on the ballot paper will be “ Should the United Kingdom remain a member of the European Union?'. Are eligible to vote persons who are entitled to vote to parliamentary elections, including United Kingdom citizens residing abroad for less than 15 years. The bill sets December 31st, 2017, as a deadline, but Philip Hammond MP, Secretary of State for Foreign and Commonwealth Affairs, stated that the government is willing to have it as early as 2016. On the day after the Queen's speech, the Prime Minister set out to visit European head of governments to start discussion on the renegotiations of the United Kingdom's European Union membership. The negotiations could be difficult, given that this week, France and Germany have supposedly made a pact to try and further closer integration in Europe, and that David Cameron list of wants could require changes in the treaties .

International Development

United Nation's Special Rapporteur on freedom of speech strongly defends encryption and anonymity on the internet

A report by the United Nations' Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, is to be presented to the UN Human Rights Council on June 17th, 2015, and has been published today.

This report, the first by this new rapporteur, was drafted with the contribution of sixteen states and thirty civil society organisations. It very strongly defends the right to use encryption and to stay anonymous on the web. It states that freedom of opinion and expression, as well as the right to privacy, depends on them in the digital age. Encryption, by protecting the confidentiality and integrity of messages, “empowers […] journalists, civil society organizations, members of ethnic or religious groups, those persecuted because of their sexual orientation or gender identity, activists, scholars [and] artists”. The report then criticises ban of anonymity online, mandatory SIM card registration as well as blanket data retention, and asks states to stop these practices. It encourages companies and state to develop encryption by defaults and privacy by design.

Finally, it defends the view that creating “backdoors” to access encrypted messages, even with legitimate intentions such as national security, adversely and disproportionately affects everyone’s capacity to remain anonymous online. Coincidentally, on the day before the publication of the report, Mike Rogers, head of the United States' National Security Agency, argued that absolute protection of privacy was “ not in the nation's best long term interest”, and that the US need to create a legal framework where decryption by government agencies can be lawful.

United States' Patriot Act to expire on June 1st if no agreement is found in the Senate

Several major provisions of the Patriot Act, a law passed one month after the 9/11 terrorist attacks that greatly expanded some government agencies power in surveillance and eventually led to the Snowden's revelations, will be obsolete on June 1st, and there is still no agreement on their renewal or replacement. At the end of March, President Obama advocated for the end of bulk collection of data by government agencies and argued that the data should be retained by telephone companies until a judge grants access to it for a specific query. The decision should be “based on national security concerns”.

The USA Freedom Act, which aims at filling the gap that the end of some provisions of the Patriot Act, has passed the House of Representatives but couldn't get a majority vote in the Senate. Without the Freedom Act or a renewal of the Patriot Act, the United States' citizens phoning records aren't hold by the government for the first time since 2001. The Senate should sit May 31st to try and find a compromise before the deadline of June 1st.

During the debate, Rand Paul, a Republican senator engaged in the presidential campaign, hold an 11 hour speech denouncing mass-surveillance . The Republican Party remains, however, very divided on the issue of surveillance .

European Union

European Council not willing to keep the European Parliament's definition of net neutrality

While the creation of a Digital Single Market “as soon as possible” was part of Jean-Claude Juncker's objectives, it seems that an agreement on its foundation, the Telecom Single Market, discussed for more than two years now, is far from being reached.

The proposal for a Telecom Single Market, which focuses on defining net neutrality and regulating international roaming charges, is currently being examined by the European Council, after the European Parliament proposed amendments, including one enshrining a definition of “net neutrality” into law that was very favourably received by civil society organisations. But the clear and binding definition of net neutrality it provided (“ traffic should be treated equally, without discrimination, restriction or interference, independent of the sender, receiver, type, content, device, service or application”) has been removed altogether from the latest compromise reached between the European heads of state. The Council however admitted that it would try to draft another proposal for the “trialogue” with the Commission and the Parliament that will take place on June 2nd. There could also be a disagreement on the suppression of roaming charges.

European Parliament revises its position on TTIP and doesn't oppose ISDS

The European Parliament's (EP) Committee for International Trade voted on Thursday, May 28th, recommendations to the European Commission on the negotiations for the Transatlantic Trade and Investment Partnership (TTIP), an economic agreement designed to foster exchanges and investment between the United States and the European Union. Those recommendations are non-binding, but the Parliament will have to vote the final agreement and could veto it if it ends up being too far from what it expected, as it did with the Anti-Counterfeiting Trade Agreement (ACTA) in 2012. Such recommendations had already been adopted in 2013, but these new ones aim at taking into account the political changes introduced by the EP election that took place in 2014 as well, as the progress made during the two years of negotiations.

One particular point in the agreement has been highly controversial for more than a year, the Investor-state dispute settlement (ISDS) provision that would allow for international tribunal statueing on cases where national or European legislations endanger the profit perspectives or the investment of a company. While the Commission defends it as a tool against “unfair discrimination” in favour of domestic companies, its opponents denounce an anti-democratic provision that impedes on States' ability to regulate on matters such as health or environment.

To abate the debate, the Commission announced a suspension of talks on ISDS in January 2014. But the recommendations voted this week by the EP committee calls for “a permanent solution for resolving disputes between investors and states which is subject to democratic principles and scrutiny, where potential cases are treated in a transparent manner by publicly appointed, independent professional judges”, a compromise that was found by the Conservatives and the Social Democrats. Other EP commissions have voted against ISDS but the text voted by the the International Trade committee, leading committee on the matter, will be the one that will be submit to the vote of the EP in the next plenary session, on June 10th.

Yannick Jadot, spokeperson for the Green/EFA parliamentary group, criticised a compromise that goes against European “democracy, citizens, workers and consumers”.

As a side note, it is to be noted that the MEPs reaffirmed in the agreement that data protection was not negotiable.

ORG Media coverage

See ORG Press Coverage for full details.

2015-05-27 – The Guardian - Security services' powers to be extended in wide-ranging surveillance bill
Author: Alan Travis
Summary: Jim Killock quoted on the wide rqnge of the new Investigatory Powers Bill
2015-05-27 – BBC News - Queen's Speech: New monitoring powers 'to tackle terrorism'
Summary: Jim Killock quoted on the Snoopers' Charter
2015-05-27 – The Inquirer - UK government outlines plans for supercharged surveillance powers
Author: Carly Page
Summary: Jim Killock quoted on the Snoopers' Charter
2015-05-26 – The Guardian - If one thing gives me hope for the future, it’s the cause of ​internet freedom
Author: Cory Doctorow
Summary: ORG cited as an example of NGO working for freedom on the internet

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