ORG policy update/2016-w36

This is ORG's Policy Update for the week beginning 05/09/2016.

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Official meetings



The House of Lords Committee has resumed their IPBill debate of this week. The fourth and fifth sittings dealt with Oversight Functions and Bulk Powers.

The fourth day (Monday 5 September) of the Committee stage discussed at length notifications by the Investigatory Powers Commissioner to the subjects being surveilled. The amendment by Lord Paddick and Baroness Hamwee were opposed by Earl Howe who refused their arguments on the grounds that it would also make it mandatory to notify crime perpetrators and terrorists of their surveillance.

It was also clarified by Lord Keen that telecoms operators do not classify as public authority who are responsible for error reporting, despite them carrying out a significant amount of surveillance on behalf of public authorities.

The fifth day (Wednesday 7 September) focused on Bulk Powers and discussion of findings of the Anderson's review. The only amendment answering the recommendations in the Anderson's report was tabled by Lord Rosser. A government amendment is expected to be brought in for the Report stage since time constraints prevented them from doing so at the moment.

Lord Strasburger demanded clarification from the Minister on who is able to use bulk personal datasets since the Anderson's review reported that they are used beyond intelligence agencies. Earl Howe offered a somewhat unsatisfactory response saying that almost anyone has access to bulk personal datasets and used an example of a telephone book. The IPBill does not indicate that bulk personal datasets are a tool available to any agency other than intelligence agencies. Howe promised to seek advice and write to Lord Strasburger on this matter.

The Committee agreed on government amendments regarding the operational purposes of bulk warrants. What remains to be discussed more thoroughly during the Report stage are bulk acquisition warrants being used on Internet connection records and criminal sanctions for misuse of bulk powers.

Privacy International identified what flaws there are to be found within the current draft of the IPBill in regards to bulk powers. Graham Smith points out what other debates Anderson's report points to.

The last Committee sitting will take place on 12 September. The Report stage will be starting on 19 September.

IOCCO annual report

The Interception of Communications Commissioner's Office published their annual report for 2015. The report covers work of IOCCO and has a dedicated section on the work on the IPBill. The report summarises all the review reports and recommendations, and written evidence. The annual report voices disappointment

“that the Government has still not created or made any reference to an oversight Commission in the IP Bill, despite repeatedly giving a commitment to creating “world leading oversight”. The oversight provisions in the IP Bill need to prescribe properly the legal mandate of the “Commission” in order to set the standard for a modern, independent oversight body.”

Overall, the report found that “there is still room for further amendments to enhance safeguards and to increase accountability and transparency”.

IOCCO also revealed in the report that UK police acquired data to identify or determine journalistic sources without seeking judicial approval four times in 2015. All UK law enforcement agencies are required to obtain authorisation when applying for communications data to identify a journalistic source since March 2015. The protection of journalistic sources will be also affected by provisions in the IPBill.

Written question on Digital Single Market

Lord Allen of Kensington submited a question to the Government on what assessment has been made of the risk to the UK economy and British business of the UK being left out of the development of the EU digital single market.

Baroness Neville-Rolfe responded that the UK remains a member of the EU and will continue to play an active part in the development of the Digital Single Market until the formal leaving process has been finalised. In the meantime, she will be working across government to make sure they understand the potential risks for the economy.

Oral question on online hate crime

John Mann asked the Department of Justice what assessment has been made of their contribution to tackling online hate crime.

Phillip Lee MP, the Under-Secretary of State for Justice, responded that the Government published their plan to tackle hate crime 'Action Against Hate' in July 2016.

Mann further enquired whether True Vision, the Internet reporting organisation based in the Secretary of State office's, will remain in the Home Department or will be move to a different department.

Phillip Lee MP responded that he is committed to ensuring that the important work of the organisation continues.

Maria Miller MP raised the issue of anonymity for victims of revenge porn and invited the Minister to consider changing the regulation.

Lee invited Miller to write to him on the issue so he can consider it later.

The Minister also responded to a question on support to women who are suffering online harassment and abuse. He said he is determined to maintain services that support women and men who are subjected to crime.

Oral questions on cybercrime

Jack Dromey MP asked about the levels of cybercrime and their assessment.

Ben Wallace MP responded that the Home Department for Security recorded increased reporting to Action Fraud.

Ed Vaizey MP followed up with a question whether the department will consider a bespoke career path, starting at graduate level, for people entering police force to supply different skills from those the police have been relying on before the growth of digital crime.

Ben Wallace MP said direct recruitment is currently under way to ensure that the police and the National Crime Agency have the necessary skills. 

Stephen Doughty enquired whether the Minister is satisfied with the level of support being given by social media and Internet service providers to police for tackling online radicalisation.

The Minister responded that they get good cooperation from ISPs and multimedia companies.

Written question on cybercrime

Christian Matheson asked the Secretary of State for the Home Department whether trends in the level of cybercrime have been assessed.

Ben Wallace MP, Minister of State for Security, responded that the department has committed to spending £1.9 billion on cyber security over the next five years.

Written question on EU cybercrime and cybersecurity

Diana Johnson MP asked the Secretary of State for Foreign and Commonwealth Affairs, how UK plans to participate in the EU cybersecurity strategy in the future.

Alan Duncan MP responded that as long as UK remains a member of the EU, the government will continue to implement the 2013 EU Cyber Security Strategy.

More concrete characteristics of UK's relationship with the EU on cybersecurity will only be determined by the Brexit negotiations. However, regardless of their outcomes, UK will continue to work on cybersecurity with their partners across Europe.

Other national development

Crown Prosecution Service report on revenge porn

The new report published by the Crown Prosecution Service (CPS) revealed that a total of 206 people have been prosecuted under the new revenge porn law since April 2015.

The law makes sharing of private sexual photographs or films without subject's consent an offence with a maximum prison sentence of two years. The report shows social media (Facebook) as a growing trend connected to revenge porn offences. Despite the positive impact of the legislation had on prosecution of revenge porn, there have been for affording the same level of anonymity to the victims of revenge porn as victims of rape and other serious sexual offences.


CJEU ruling on links to pirated content

The European Court of Justice ruled on posting hyperlinks to pirated copies of copyrighted material. According to the ruling, it is not illegal to post links to such copies if it is done without knowledge that they are unauthorised versions and not for financial gain.

The ruling was given in the case involving pictures commissioned for Playboy magazine. The decision explains that it might be difficult for individuals to identify whether the works are copyright protected on the Internet. However, if links are posted for profit, there is a presumption that posting has been done with full knowledge of the materials being protected.

In this particular case, the court demonstrated that the company linking to pirated copies of Playboy pictures appeared to be aware of their illegal nature and therefore knowingly proceeded to illegally publish them.

Privacy Shield implementation

The new Privacy Shield agreement was adopted by the European Commission on 12 July and came into force a month ago. It has been reported only 103 companies have signed up to the agreement so far.

The Commission confirmed that the privacy policies of 190 other firms that want to sign up are being reviewed and additional 250 companies are in the process of submitting their applications. Out of the bigger tech companies, the only ones already signed up are Microsoft and Salesforce.

The numbers appear to be fairly low, however Max Schrems (responsible for striking down the Safe Harbour agreement) said

“I think the number of sign-ups is actually quite good, given that everyone that really cared put model contracts in place in the last year and it's not a major topic for many of these 5,500."

Věra Jourová, European Justice Commissioner, said she is pleased with the current numbers. Privacy Shield will be undergoing its first appraisal by the EU's data regulators in one year's time.

ORG media coverage

See ORG Press Coverage for full details.

2016-09-06-The Cipher Brief-Surveillance State
Author: Jim Killock
Summary: Jim Killock explores what UK intelligence and security apparatus will likely look like under the new Theresa May government.

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