ORG policy update/2015-w45

This is ORG's Policy Update for the week beginning 02/11/2015

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National Developments

Draft Investigatory Powers Bill published

The Government published the draft Investigatory Powers Bill on Wednesday. The Bill will be one of the most significant pieces of legislation of this Government and is a long overdue opportunity to make the surveillance activities of the police and security services more transparent and accountable.

Ministerial statements

In her ministerial statement to the Commons, Theresa May MP stated that the draft Bill is about “consolidating and updating our investigatory powers, strengthening the safeguards, and establishing a world-leading oversight regime”. She distanced the new draft Bill from the highly criticised Communications Data Bill, highlighting that the new draft Bill did not force companies to retain third party traffic data from overseas, did not require overseas companies to comply with the retention obligations in the Bill and did not ban encryption.

The Home Secretary also gave the following information:

The Bill will be introduced for parliamentary debate in Spring 2016 and needs to be passed by 31 December 2016 when DRIPA expires.
The Bill does not give the police and security services access to full web browsing histories, but to what she referred to as “Internet connection records” which list the websites visited but not the individual pages nor the content of any communications sent.
Ministerially approved warrants will be replaced by a “double lock” mechanism which requires Secretary of State approval as well as judicial authorisation.
The Wilson Doctrine has been formalised in the Bill, which includes safeguards for the interception of communications of MPs, MEPs, and members of the devolved parliament and assemblies. The Bill requires the Prime Minister to authorise such warrants.
Judicial authorisation will also be required to access communications data that would reveal a journalist’s sources.
The Bill expressly permits bulk data collection for the first time.
The Bill will create a new oversight role - the Investigatory Powers Commissioner - to replace several Commissioners' offices.

The statement was met with general support in the Commons. Several members of the House across all parties submitted questions to the Home Secretary, with the majority expressing their agreement with the draft Bill’s aims in general, including Shadow Home Secretary, Andy Burnham MP. Particularly supportive were Alex Chalk who represents many GCHQ employees from his constituency and Johnny Mercer who asked whether Theresa May agreed “that one of our great privileges in this country is the relative safety and security that we enjoy in a desperately unstable world, and that sometimes these privileges require a price, which in my experience the vast majority in this country are willing to pay so long as they are safe?”

Where concerns were raised, the main focus of these was the “double lock” authorisation method and whether it was suitable or adequate. Nick Clegg agreed the current Bill is an improvement but indicated that it may “[retain] some of the flaws of its predecessor”. He asked why direct judicial authorisation was not considered as a simpler option. Several others, including Owen Paterson, Joanna Cherry and Andy Burnham, questioned how the double lock system would operate in order to avoid delays in the process of issuing warrants. The Home Secretary responded that there would be measures to ensure urgent warrants could be issued quickly in an emergency.

Nick Clegg also questioned whether a data retention period of 12 months was appropriate. Keith Vaz suggested that the Home Secretary’s comparison of Internet connection records to an itemised telephone bill did not mean that they would not contain significant personal data.

The only strong opposition to the statement came from David Winnick who described the powers that were being given to the intelligence agencies as excessive and stated that "there is a good deal of concern outside this House. I certainly believe that if this measure were to be passed without substantial amendment, it would be unfortunate and a bitter blow for civil liberties”.

Lord Bates repeated Theresa May's statement in the House of Lords, which was met again with general support. Lord Paddick raised questions about the technical feasibility and cost to industry of the plans. He also expressed concerns about ISPs holding large amounts of communications data which could be vulnerable to hacking. This was repeated by several others, including Baroness Ludford and Lord Blair of Boughton. Lord Hutton of Furness was against the involvement of judges in the authorisation process and Lord Pannick questioned whether the judicial authorisation stage would have a procedural focus, like judicial review, or would allow the judges to look at the substantive decision.

Initial responses to the Bill

Read ORG's first take on the draft Bill. The draft Bill is 300 pages long, but initial responses have highlighted several areas of concern. The Bill will permit bulk interception of communications and access to communications data without a warrant by police and security agencies. ISPs will now be required to hold large amounts of data in the form of Internet connection records for 12 months. Despite the Home Secretary's description of these records as comparable to an itemised telephone bill, they will contain significant information about a person's browsing history.

While the addition of judicial oversight to the warrant authorisation process has been viewed generally as a positive step, the role of judges in the process seems to be limited to procedural rather than substantive review of the decision.

Parliamentary Debates and Questions

Cyber security inquiry launched by Culture, Media and Sport Committee

The Culture, Media and Sport Committee is accepting written submissions for its inquiry on cyber security until 23 November 2015. The inquiry has been launched following the recent Talk Talk hack but is also interested in wider issues relating to companies' responses to the protection of personal data, including the role and importance of encryption, the adequacy of measures for redress and compensation for consumers and the adequacy of supervisory, regulatory and enforcement regimes against cybercrime. Submissions can be made online.

Questions on US Electronic Surveillance

Lord Laird asked what steps the Government is taking to stop "indiscriminate mass surveillance" following the CJEU Safe Harbor judgment and to ensure indiscriminate mass surveillance does not apply to Parliament, Buckingham Palace, the High Court and the Supreme Court. He also asked how the Government has assessed the compatibility of the CJEU judgment with the advice from the Interception of Communications Commissioner.

Baroness Anelay of St. Johns responded by stating that there were "no findings of fact in relation to alleged "indiscriminate mass surveillance". She rejected that the UK was involved in mass surveillance, and highlighted that this had been supported by the Investigatory Powers Tribunal, the Interception Commissioner and the Intelligence and Security Committee. She also stated that national security is an issue for Member States and that the Investigatory Powers Bill will outline oversight of the security services and ensure that powers and safeguards are transparent.

Lord Laird also asked the status of the US PRISM programme. Baroness Anelay stated that this was a US matter.

House of Lords debate the impact of pornography on society

The House of Lords debated the role of pornography in society. Much of the debate surrounded how to protect children from viewing pornography, although some members of the House advocated the need to protect adults from its influence, citing addiction and relationship breakdown as possible harms. Others, particularly Lord Giddens and Baroness Murphy, highlighted that there was a lack of evidence of the harms or otherwise of pornography and Lord Scriven stated that legislating without that evidence of harm would be legislating unnecessarily and could be a risk to free speech. Baroness Howe raised the issue of ISP content filters and was concerned that some ISPs are bypassing the requirement to have opt-out filters and suggested that age-verification measures should be added to the opt-out process.

EU

EU draft copyright framework leaked

The European Commission's draft framework for copyright reform has been leaked. The draft text is due to be officially published on 9 December. The leaked text is not available online, but it has been reported that it rules out full harmonisation of copyright rules across the EU in the short term as it would be too complicated and lengthy to implement currently, although it remains a long term aim. The issue of banning geoblocking to prevent content providers restricting access in other member states is not mentioned in the text. Instead the framework outlines plans for a legislative proposal on content portability and a reassessment of copyright exceptions, particularly regarding text and data mining. It also identifies issues the Commission will consider, including enforcement, with further legislative proposals later in the year a possibility.

European Commission release guidance on data transfer to US

Following the recent CJEU judgment declaring the EU-US Safe Harbor agreement invalid, the European Commission has released guidance on transatlantic data transfers for companies to refer to until a new agreement is negotiated with the US. The guidance suggests either contractual solutions or binding corporate rules as mechanisms to authorise the transfer of personal data from EU member states to the US.

LIBE Committee visit Beijing to discuss cyber security and data privacy law

Members of the Committee on Civil Liberties, Justice and Home Affairs are travelling to China this week as part of a mission to discuss, amongst other issues, cybersecurity, cybercrime, data protection and privacy legislation and their potential impact on the rights of EU citizens. The thematic programme for the visit outlines that there will be a discussion about the framework for data exchange between the EU and China, relating to commercial organisations, police services and intelligence agencies.

International Developments

TPP text published

The full Trans-Pacific Partnership trade deal text has now been published after extensive closed-door discussions. The twelve countries involved in the deal now need to ratify the agreement. This is a yes or no vote and there is no opportunity to propose amendments.

The text has been criticised for its copyright provisions in particular, which leave IP issues open to challenge through the controversial investor-state dispute settlement process and seem to extend strict US copyright laws to the other members of the trade deal. There are further concerns about several provisions which prioritise trade over privacy rights, including the strict limits on the use of data localisation and the weak protection for the transfer of personal data between countries. The deal also fails to adequately safeguard net neutrality.

TPP trade deal: text published online - The Guardian

Facebook amends real names policy

Facebook has changed how it implements its policy on "authentic names" in response to requests by civil liberties organisations including the ACLU and EFF. The policy requires users to use the names by which they are known in real life on their profile. This has caused problems for some users who have been forced to provide evidence of their names in order to continue using the service. Flagging a profile as using a false name has also become a method of harassment. The new policy now allows users to provide more information on their name and to provide non-government ID as evidence. Anyone flagging a profile will now also have to provide context to their report.

EFF has raised concerns about the complexity of the appeals process against profile removal and the security of data sent to Facebook as evidence. They have also called for the real name policy to be removed completely.

ORG Media coverage

See ORG Press Coverage for full details.

2015-11-05 – The Daily Record - Glasgow Council spooks test £1.2m CCTV by spying on folk putting cone on duke: Author: Billy Briggs; Summary: Pol Clement-Smith quoted on a new CCTV system in Glasgow.

2015-11-05 – The Japan Times - Britain seeks greater access to citizens’ online activity: Author: Associated Press; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-03 – The Guardian - May calls for internet companies to store details of website visits: Author: Alan Travis; Summary: Jim Killock quoted on the draft Investigatory Powers Bill

2015-11-04 – The Verge - UK surveillance laws will keep citizens' internet history on file for 12 months: Author: James Vincent; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – The Guardian - Theresa May unveils UK surveillance measures in wake of Snowden claims: Author: Alan Travis, Patrick Wintour and Ewan MacAskill; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – The Express - Watch PORN online? This shocking new UK law might just change that: Author: Aaron Brown; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – Wired - Surveillance bill is a 'breath-taking attack' on internet security: Author: Matt Burgess; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – Alphr - Investigatory Powers Bill: How will the reworked Snoopers' Charter affect you?: Author: Thomas McMullan; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04– Motherboard - The UK Plans to Retain All Citizens' Web History: Author: Joseph Cox; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – Wired - Investigatory Powers Bill: what's in it, and what does it mean?: Author: Matt Burgess; Summary: ORG quoted on the draft Investigatory Powers Bill.

2015-11-04 – The Guardian - May wrong to say surveillance bill creates judicial authorisation for interception, says Liberty – live: Author: Andrew Sparrow; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – The Inquirer - Theresa May delivers onerous Snoopers' Charter surveillance promises: Author: Dave Neal; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – The Wall Street Journal - U.K. Proposal Would Expand Government’s Powers of Surveillance: Author: Jenny Gross and Alexis Flynn; Summary: Jim Killock quoted on the draft Investigatory Powers Bill.

2015-11-04 – Kit Guru - Draft Investigatory Powers Bill will have ISPs record customer data: Author: Jon Martindale; Summary: ORG mentioned in article about the draft Investigatory Powers Bill.

2015-11-04 – Forbes - UK Set For Russia-Style Bulk Surveillance: Author: Emma Woollacott; Summary: Jim Killock quoted on the draft Investigatory Powers Bill

2015-11-04 – Europe Online Magazine - Britain airs controversial law to simplify online data retention: Author: Bill Smith; Summary: Jim Killock quoted about the draft Investigatory Powers Bill.

2015-11-04 – SF Gate - MBritish spying bill gives more access to citizens’ Web activity: Author: Associated Press; Summary: Jim Killock quoted about the draft Investigatory Powers Bill .

2015-11-03 – The Guardian - May calls for internet companies to store details of website visits: Author: Alan Travis; Summary: Jim Killock quoted about the draft Investigatory Powers Bill.

2015-11-03 – The Inquirer - The UK will probably ban encryption for technology companies: Author: Dave Neal; Summary: ORG mentioned in article about the draft Investigatory Powers Bill.

2015-11-01 – Tech Times - Tor Messenger Is An Encrypted Messaging App That Lets You Chat Anonymously: Author: Dave Calpito; Summary: Jim Killock quoted on Tor Messenger system.

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