July 12, 2012 | Jim Killock

Opposing mass data surveillance: the Snooper's Charter

Yesterday, I attended the Joint Committee hearings examining the Communications Data Bill – aka the Snooper’s Charter – on behalf of the Open Rights Group. I joined Dr Gus Hosein of Privacy International, Nick Pickles of Big Brother Watch, and David Davis MP on the panel.

The session was cut short, so we will be going back next week, to share a panel with Liberty and Justice, who will be outlining the civil liberties and human rights case against the Bill.

On Wednesday, Charles Farr of the Office of Security and Counter Terrorism at the Home Office attended with two supporting officials to outline the government’s case. I listened to their case, which was very surprising. As Peter Bradwell at ORG observed, it was if they were discussing a different bill.

Farr claimed that “black boxes” were a small part of the plans. Black boxes would target a small number of sites where co-operation could not be obtained. Mostly the Home Office aimed to co-operate with private companies, including companies overseas.

Those companies – like Google and Facebook – seem to be in the dark, although Farr and Theresa May say they have been briefed.

The problem we have here is that the Home Office has not published a proposal, nor presented evidence of it. Instead, they have published the legislative language surrounding the proposal. The Committee and groups like PI, BBW and ORG are having to reverse engineer what the proposals really are from the words of Charles Farr and the Bill itself.

Normally, a defined proposal would allow us to assess the real technological and civil rights risks. A public consultation would allow us to present counter-evidence and engage in a debate. Though these processes are flawed, we would at least have a firm idea of what we are dealing with.

Similarly, the Joint Committee are teasing out potential issues working back from the face of the Bill. To our mind, any range of possible plans could be enabled by this legislation. The previous Intercept Modernisation Plan could easily be enabled through the powers in the draft legislation.

We need to know why and how has consultation been avoided. We need to see the actual plans, costs, justifications, beyond the Impact Assessment. The Home Office needs to publish plans on which they can fully consult.

Nevertheless, the Committee seems to be doing a good job in very difficult circumstances. They are certainly teasing out many of the potential issues, and current problems with RIPA’s lack of oversight. Gus Hosein yesterday made a compelling case for abandoning “collection” duties, which are absent in all other democratic countries. David Davis demolished the idea that judicial oversight was cumbersome and unnecessary. ORG outlined the proliferation of data which the police are benefiting from: hardly a ‘reduction’ of capability.

ORG, PI and BBW pointed to real evidence in other countries showing reductions in use of retained data, and increases in detection rates. In the Czech Republic, Luridicum Remidium report that detection (in 2010) went up from 37.55% to 38.54% despite a tenfold drop in requests for information. In Germany, the Federal Crime Agency reported that under data retention, a smaller proportion of crimes were resolved.

One question was asked that does seem, on one level, difficult. How do you make sure you have the information on the one or two very serious cases where it is difficult to obtain the data otherwise? David Davis pointed out that having the data doesn’t mean it is used. Often, more data just means more haystacks obscuring the same needle.

Equally, we cannot use “we must have the data just in case” as a starting point. If we did, why not bug every park, every car and every pub? Or demand logs of library borrowings?

The starting point with communications data is that it has been already created for private business purposse, so access is reasonable. Collection duties imposed on ISPs would move us away from that position into increasingly dangerous territory.

One thing that has been very clear to us over the last weeks is that we need a clear movement, gathering public opinion against this Bill. Many MPs do not believe the public is concerned, and others do not think that MPs can be moved away from support once terrorism is mentioned.

That’s what we need to work on. Other organizations will of course play their part, like 38 Degrees, No2ID and Liberty, but ORG can be pivotal in organizing and networking the opposition to this proposal. Can you help?