Open Rights Group wishes to express its sympathy for the victims of the vile and brutal attack in Manchester. We condemn these violent attacks, which seem even more abhorrent when deliberately targeted at children and young people.
We hope that law enforcement and intelligence agencies will help to bring those involved in these attacks to justice and we support their work combating terrorism. We believe that these agencies need powers of surveillance to do this.
However, we also believe that there must be limits to these powers in order to preserve the democratic values of freedom and liberty - the same values that terrorists want to undermine. This is the central challenge of the moment, in our view.
There are many emotions and reactions that flow from this event. Solidarity, the need to comfort as best possible; the value we place in our communities and the human aid that people have given to help people directly affected. But there is also fear, hatred and a desire to do anything that could prevent such an attack from happening again.
The political response to this attack is complicated by the fact that it is has taken place in the middle of an election. Campaigning has been put on hold but politicians cannot help but be aware that their response will affect the outcome of the election - and this could see policies that exploit public fears.
The traditional response in the UK is to first commit to British values, and say that terrorists will never remove these; and then to try to reassert a sense of security and control by showing that security measures will be stepped up.
Often these attempts are highly misleading. Security measures can be helpful, but building a security state will never be enough to stop terrorism. Terrorism needs to be dealt with at source, through changes in politics and society. As long as we have failed states in Libya, Syria and elsewhere, we will not be safe. We do not wish to gloss over the complexity and difficulty of tackling these issues, but changes there are the first step to reducing the threats of terrorism.
Meanwhile, surveillance including mass surveillance appears to be leading to more information than can be effectively processed, with known individuals escaping investigation because they are too numerous for the authorities to pursue them all. In this case, even human resources may face limits, as expansion of staff numbers can lead to bureaucratisation and new bottlenecks. Terrorists can also adapt their behaviour to avoid surveillance technologies, by changing their tech, avoiding it altogether, or simplifying their operations to make them less visible.
This does not mean we should give up, nor does it mean that technology can play no role in surveillance. It does however mean that we should not assume that claims of resources and powers will necessarily result in security.
ORG is concerned that the Government’s use of investigatory powers to ostensibly keep us safe can themselves be exploited by criminals and terrorists.
It is worrying to hear that in the wake of these attacks, the Home Office wants to push ahead with proposals to force companies to weaken the security of their products and services through “Technical Capability Notices” (TCNs). These are notices that can be issued to a company to force them to modify their products and services so that the security agencies can use them to access a target’s communications.
The Government already has these powers on the statute book, as they were outlined in the Investigatory Powers Act, passed last December. To make the powers active, they must pass a regulation that gives more detail about how TCNs could be used.
Recently, the Home Office held a ‘targeted’ consultation about the new regulations. The draft was only sent to a few companies for their response, even though, these powers could affect the digital security of people in the UK and beyond.
As a result, ORG leaked the proposals so that affected businesses and individuals could raise their concerns with the Home Office. Over 1,400 ORG supporters sent their comments to the Home Office and ORG also submitted a response that we published here.
Our core concern is that using TCNs to force companies to limit or bypass encryption or otherwise weaken the security of their products will put all of us at greater risk. Criminals could exploit the same weaknesses. Changes to technology at companies merely need to be ‘feasible’ rather than ‘safe’ or ‘sensible’ for users or providers.
The recent #WannaCry hack demonstrated how a vulnerability discovered by the National Security Agency (NSA) to access their target’s communications was then used by criminals. These are powers involving different technologies but the principle remains the same: Governments should be doing all they can to protect our digital security.
Another concern is that TCNs may be served on companies overseas, including WhatsApp, owned by Facebook. These have assets in the UK and can easily be targeted for compliance. Others such as WhisperSystems who produce Signal have no UK assets. The UK appears to be deliberately walking into an international dispute, where much of the legal debate will be entirely hidden from view, as the notices are served in secret, and it is not clear what appeal routes to public courts really exist. Other governments, from Turkey to China, will take note.
Powers must be proportionate, and agencies should not be given a blank cheque. Justification for and oversight of the use of TCNs and vulnerabilities is inadequate, so the risks cannot be properly assessed in the current legal frameworks. There is no regime for assessing the use of vulnerabilities including ‘zero days’.
We urge politicians to take a detailed and considered look at TCNs and the use of vulnerabilities, to ensure that the consequences of their use can be properly evaluated and challenged.
These will seem like narrow issues compared with Monday’s events. And that is true. The wider issue, however, is that we as a society do not react to these events by emulating our enemies, by treating all citizens as a threat, and gradually removing British values such as the rule of law, due process and personal privacy.