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July 14, 2015 | Jim Killock

RUSI review adds to consensus for reform

The RUSI review offers few surprises, and has turned out to be less a trailblazer, and more an indication of what the security establishment believes the agencies might accept.

Their Panel included three former senior security staff, and RUSI are themselves very close to the UK’s defence and security apparatus. Thus the tone of the report was always likely to address the concerns of GCHQ and the Foreign Office before those of civil society. Martha Lane Fox, Ian Walden and Heather Brooke will have had a tough job to help produce a relatively balanced report that does at least go some way to address wider concerns.

RUSI follows reports from the Independent Reviewer of Terrorism Legislation, David Anderson, and the Intelligence and Security Committee, so makes reference to many of their ideas. The RUSI report does less well than Anderson Report in one very key regard: it does not set out the need for human rights courts to set the boundary between “bulk collection” and “mass surveillance”. It is hard to say that bulk collection should never take place (it might sometime be necessary and proportionate) but it will rarely happen in isolation. Combined with processing and profiling, it is hard to see GCHQ’s activities as anything other than mass surveillance.

The reason that all of the reports have strained to avoid calling out the government on mass surveillance comes in two parts. Firstly, the ISC, Anderson and RUSI are to different extents insider voices. Anderson has been the most independent and critical, but is playing the role of a reviewer, not a human rights court. He has maximised his ability to make constructive criticism, and advance sound ideas of reform, but stepped back from making the most serious challenges, leaving this question to higher powers, in the form of the courts. The ISC published a report which mixes justifications with good ideas for change, but is less critical than Anderson. RUSI falls somewhere between the two.

The important thing to note is that consensus is emerging on many areas, especially around the need for much stronger oversight and clearer laws. All the reports focused on the need to rewrite RIPA, as essentially incomprehensible. Anderson and RUSI talk about merging the fractured Commissioners to ensure that their role is strengthened. All three want better means for individuals to seek redress through the Investigatory Powers Tribunal and to appeal if it rules against them.

Anderson opened up the call for judicial warrants for interception, and RUSI has come some way to accepting this idea. Both RUSI and Anderson back the idea of international treaties to govern data requests (called Mutual Legal Assistance Treaties, or MLATs) as a key mechanism for gaining access to material needed in investigations.

RUSI is silent on the question of new powers of bulk collection and analysis that we are expecting to be proposed for the police in the proposed Investigatory Powers Bill this Autumn. RUSI focuses on technical oversight and improving national police strategy and training.

Theresa May however has indicated she wants the powers she was denied when the Snoopers’ Charter, or Communications Data Bill was dropped. The ISC stopped short of demanding these powers in their report, and Anderson said that any such capabilities needed to be preceded by a clear operational case, which he had not seen. However, after the recent atrocities in Tunisia, the Home Office will likely sense an opportunity to push Labour towards a consensus for new powers, even if they are entirely unrelated and unlikely to help. Labour should simply apply the tests that Anderson has placed in front of them: what problem are the capabilities actually supposed to be dealing with and at what cost?

RUSI’s report no longer has the political clout stemming from its original association with Nick Clegg as Deputy Prime Minister. The benchmark for reform is the Anderson report, as it was commissioned through Parliament, and Labour claim it as their concession for backing the emergency DRIP bill. If we expect the government to seek cross party consensus, then we should be looking to Anderson to persuade Labour and independent-minded Conservatives of the kinds of change they should be looking for.



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July 10, 2015 | Jim Killock

Caspar Bowden

We’d like to express our sorrow at Caspar Bowden’s passing, and to note some of his very remarkable achievements over the last few years. Caspar has been an active member of our Advisory Council since joining it in October 2013 and helped us greatly with our views on surveillance policy, security and European data protection.

Among his contributions to ORG were a series of lectures he gave prior to the PRISM revelations, where he pointed out the gaping holes in US legislation that could allow bulk collection and access to US corporations’ data vaults. At the time, he was pretty much the only person in Europe making these points, cogently and loudly.

Caspar also condemned the holes in European data protection legislation that made US political surveillance impossible to resist. He was consistent in showing the flaws in data transfer rules that would make Europeans’ data rights increasingly impossible to protect. On all these points, Caspar has been setting the agenda, and pushing harder than the Commission or US governments would like. Doing that puts you in a lonely place, and often does not win you friends, but his analysis and assessment of the importance of these points has been shown by events to be correct.

Caspar helped ORG with our work on the Snoopers’ Charter, which is the bastard child of data retention, itself one of his career long fights. He wrote in his chapter on data preservation for our report, explaining how data retention was being combined with collection and analysis:

The Home Office has the Olympic chutzpah to call the apparatus for data-mining all this information a “Filter”, and to justify it in the name of human rights. It says that by connecting up a virtual database (to hunt for arbitrary patterns of suspicion in all the data), they won’t have to build a new central database. But the point is the untrammelled power to hunt through every private life with the tools of military intelligence … It ought to be obvious that continuously recording the pattern of interactions of every online social relationship, and analyzing them with the “Filter”, is simply tyrannical.

Those kinds of observations are what made him an inspiration to campaigners and activists in the digital rights movement.

Caspar, you’ll be missed.



 

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July 09, 2015 | Maxine Chng

DRIPA challenge in court today

The challenge to DRIPA brought by David Davis and Tom Watson was discussed in court today, as the government sought to refer key questions to the EU courts.

Last year, Tom Watson MP and David Davis MP representing Liberty, brought judicial review proceedings to challenge the Data Retention and Investigatory Powers Act (DRIPA). Earlier this year, ORG and PI were granted permission by court to intervene and made points about European law. Initially focusing on a question of compatibility with the European Convention on Human Rights (ECHR), the proceedings now concentrate on DRIPA's conformity with EU law, particularly Article 15 of the ePrivacy Directive.

Generally, the ePrivacy Directive provides for the individual right to confidentiality, erasure and anonymity of one's communication data. Article 15 sets out an exception, whereby Member States can restrict those rights when “necessary, appropriate and proportionate” to safeguard, among others: national security, defence and public security. ORG and PI highlighted in our interveners' submission that the Courts of Justice of the European Union (CJEU) in Digital Rights Ireland (DRI) had already set out the requirements that domestic law must follow in order to comply with Article 15.

Since then however, the government had requested for a reference from the CJEU to clarify how the DRI decision affects UK law. A hearing was held at the Royal Courts of Justice on Thursday morning to determine if the request for reference should indeed be granted.

The government claimed that the CJEU's decision in DRI was in relation to a different legal context, as it was made in reference to the Charter of Fundamental Rights of the EU. On the other hand, the current case tests DRIPA's compatibility with the ECHR or ePrivacy Directive.

Liberty opposed the government's request for a reference, concerned that a reference from the CJEU would only delay the judicial review proceedings. They contend that the relevant principles of EU law are already clear and have been fully considered by the CJEU in DRI. The court agreed and rejected the reference request. A draft judgment is expected to be issued next week.

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June 23, 2015 | Ed Johnson-Williams

Net Neutrality in Europe in danger

Net neutrality is under threat in Europe and we urgently need your help before 29th June!

Net neutrality is the principle that Internet Service Providers should treat all data on the Internet equally. It's about minimising the restrictions on which parts of the Internet you can access. And it's about allowing startups to compete with big Internet firms and supporting innovation in the digital economy.

Shortly before the European Parliament elections last May, MEPs voted with a large majority in favour of net neutrality. The vote was a major step towards protecting the open internet in Europe. But then the European Council - which is made up of the Member states of the European Union - hammered out their version of what net neutrality rules they wanted. And it turns out that their version of net neutrality is not worthy of that name.

The Council's text could allow Internet Service Providers to charge customers and companies extra for receiving and delivering different types of online services. Only those who pay more will have easy access to an audience online. It would also authorise blocking of lawful content. This is completely counter to net neutrality and contradicts the Parliament's position.

The Council and the Parliament have been negotiating the final text of the new net neutrality rules for the last few months. And we've seen the Parliament give in to the Council's demands time and again while the Council has given up almost nothing. The Parliament have even conceded on the definition of net neutrality. The phrase net neutrality isn't even in the most recent working text. The Council has successfully replaced it with a vague "open internet" which suggests there is a "non-open" Internet, which is worrying.

If the Council gets their way then net neutrality in Europe will be under extreme threat. The next negotiations are set for 29th June. Until now MEPs haven't heard a lot from European citizens about why they need to stand up for their previous position in support of net neutrality. They need to hear from us now so they know that this is something European citizens care about.

Can you email and tweet the MEPs who are negotiating on net neutrality? You can choose to contact an MEP from the UK using the 'Filter by country' menu.

EDRi (European Digital Rights) have been doing outstanding work tracking and campaigning on European net neutrality proposals. EDRi campaigns for digital rights in the EU and ORG is one of their members. Find out more about their excellent work on their website.

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June 11, 2015 | Pam Cowburn

Anderson review: "It is time for a clean slate"

The UK's Independent Review of Terrorism Legislation has said, “it is time for a clean slate” when it comes to surveillance law in the UK. In his report published today, David Anderson QC condemned the current legislative framework as, “fragmented, obscure, under constant challenge and variable in the protections that it affords the innocent”.

Anderson was tasked with reviewing surveillance law as a requirement of the Data Retention and Investigatory Powers Act – one of the concessions gained by Labour and the Lib Dems in return for their support in rushing the Bill through Parliament last July.

Anderson, unsurprisingly, does not condemn mass surveillance in principle and endorses bulk collection by the security services, but the report does call for a radical overhaul of how surveillance is regulated.

Here are some of the key points:

Legal reform: Since the Snowden revelations began two years ago, Parliament has further legislated for surveillance through DRIPA, the Counter Terrorism and Security Act 2015 and amendments to the Computer Misuse Act that legitimise hacking by the security services. Anderson's damning verdict that the law, "is variable in the protections that it affords the innocent” can't be ignored. The report says: "A comprehensive and comprehensible new law should be drafted from scratch, replacing the multitude of current powers and providing for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use."

Warrants: Under the current system, warrants for surveillance are signed off by government ministers, who are not independent. Anderson's recommendations that warrants should be signed off by judicial commissioners is a welcome shift away from politicial authorisation but it would be preferable for warrants to go through the courts and be signed by serving judges to help make sure that surveillance is 'necessary and proportionate'.

Snoopers' Charter: Anderson says that extending capabilities through a new Snoopers' Charter should only happen if there is, “a detailed operational case needs to be made out, and a rigorous assessment conducted of the lawfulness, likely effectiveness, intrusiveness and cost of requiring such data to be retained”. So far the Government hasn't made such a case. In addition, it has made a report by Sir Nigel Sheinwald top secret. That report is believed to have suggested that a new international treaty could be a legal alternative to the Snoopers' Charter.  Despite this, the Home Secretary Theresa May today told the House of Commons that the re-drafted Snoopers' Charter would be laid before Parliament in the autumn - although it would be scrutinised by a Joint Commitee.  

It is unlikely that Anderson's review and the Intelligence and Security Committee's Privacy and Security report would have happened were it not for Edward Snowden's revelations. Two years on, there are still many battles to be fought but one thing is certain - the status quo cannot continue. MPs from all parties must act to ensure that the UK has surveillance powers fit for a democracy.  

You can sign our petiton against the Snoopers Charter here.

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May 22, 2015 | Ruth Coustick-Deal

Imagine the web without hyperlinks

ORG is working with an international coalition of over 70 digital rights organisations, from Creative Commons to Thunderclap, to protect our ability to share content. The campaign is called Save the Link.

Our ability to link is under attack, and we need your help to save it!

https://savethelink.org/

We all love linking: passing on funny images, surprising stories, wise blog posts and sharp videos. But there are attacks to all of that on the horizon.

What's the threat?

In December 2014, Google permanently shut down the Spanish version of Google News. [1] They did this because amendments to Spanish intellectual property law imposed a compulsory fee for the use of snippets of text to link to news articles. [2]

In the EU, these same lobbyists have been working with the U.S. Trade Representative’s office to pressure lawmakers to upload the same Spanish link censorship laws to the entire European Union. [3]

These laws will effectively censor summaries of news content, as well as linking to legal content.

Let’s put a stop to this right now: Add your voice to the global network to Save the Link.

Such a plan would affect over 500 million citizens’ ability to use the Internet. Imagine using Twitter and not being able to link to a news article without paying a fee. It would shut down the spread of news. This is just one way copyright is being twisted to censor the Web – but it’s far from the only way. That’s why we are part of a huge network of individuals and organizations committed to stopping these censorship plans, wherever they emerge.

The bottom line is this: every successful scheme to censor links weakens the foundation of the Internet.

Speak out now and tell public officials that we’ll fight to Save the Link.

https://savethelink.org/

This email is part of a global campaign called 'Save the Link' of which ORG are a member.

[1] Google News in Spain
https://support.google.com/news/answer/6140047?hl=es

[2] Spanish Copyright Amendments Will Shakedown News Sites and Censor the Web
https://www.eff.org/deeplinks/2014/11/spanish-copyright-amendments-will-shakedown-news-sites-and-censor-web

[3] An EU-wide ‘Google tax’ in the making?
https://juliareda.eu/2014/10/an-eu-wide-google-tax-in-the-making/

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May 14, 2015 | Ruth Coustick-Deal

We're 3000 strong

In the last few days over 200 people have joined ORG to become of the movement fighting back against Government plans to attack our digital rights. For the first time we have over 3000 members!

On Theresa May’s first day back in office she didn’t wait to re-arrange her desk plants, but instead committed to her favourite piece of legislation: The Snoopers’ Charter. [1] It's a discredited Bill that Parliament said gave insufficient attention to our human rights. It would give the powers of GCHQ to the Police. We don't yet know when it's going to happen, but we do know that we need to be ready for the big announcement.

And this law is just one in a long list of goals the Government have to attack our digital rights:

  • Scrapping the Human Rights Act.
  • Requiring Internet service providers to block websites.
  • Enabling employers to check whether an individual is an extremist.
  • Making every message readable by the state - even when we've encrypted it.
  • We're also worried that they may revive plans for a universally applied block list of extremist sites.
  • And they just announced yet another counter-terrorism bill which is expected to contain more restrictions on free speech, such as to require "extremists" to ask the police for permission to post on the Internet. [2] 

We have some tough fights ahead, including winning over as many Conservative MPs as possible to our side.

Can you join ORG to help us win?
https://www.openrightsgroup.org/join

We might not have the tempering influence of the Lib Dems to keep the Home Office in check:
But this time what we have is you.

In the past few days, 200 people joined ORG or increased their donation when they heard the annoucement.

In 2013 we saw the Snoopers’ Charter declared dead after a year of campaigning. Then earlier this year 4 House of Lords peers tried to sneak it in again by adding 18 pages of amendments to the Counter Terrorism and Security Bill. It was thanks to a quick response by ORG supporters, that it was stopped both times. For the first time ORG has over 3000 members: with all of us working together we can stop it again.

Just this week a group of our supporters met together in London to plan local activism in the fight against the Snoopers’ Charter, and we'll be announcing more actions in a couple of days.

Can you commit £5/month to support our work?
https://www.openrightsgroup.org/join

Thank you,
Ruth

[1] The Independent - Snoopers' charter set to return to law as Theresa May suggests Conservative majority could lead to huge increase in surveillance powers
http://www.independent.co.uk/life-style/gadgets-and-tech/news/snoopers-charter-set-to-return-to-law-as-theresa-may-suggests-conservative-majority-could-lead-to-huge-increase-in-surveillance-powers-10235578.html [2] David Cameron to unveil new limits on extremists' activities in Queen's speech
http://www.theguardian.com/uk-news/2015/may/13/counter-terrorism-bill-extremism-disruption-orders-david-cameron

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May 08, 2015 | Ed Johnson-Williams

This Government will put the Snoopers Charter and more back on the table

Could the threat to our digital rights and the Internet be any greater?

 Against all expectations the Conservatives have won an absolute majority in the General Election. They will be able to propose whichever new laws they like. And if all the Conservative MPs vote together, they will be able to pass whichever laws they like.

Theresa May has already said this morning that she will use this majority to pass a new Snoopers' Charter. The light at the end of the tunnel is that the Conservatives' majority is tiny. Their leadership will have to work incredibly hard to secure a majority for new laws. Every MP's vote will count and this presents a huge opportunity for campaigns like ORG's to influence what happens.

What are the Conservatives likely to try to legislate on now? Their manifesto says that they would:

  • introduce "new communications data legislation" - also known as the Snoopers' Charter,
  • "scrap the Human Rights Act",
  • "require internet service providers to block sites",
  • "enable employers to check whether an individual is an extremist",
  • "requir[e] age verification for access to all sites containing pornographic material" - which is very difficult to implement

And David Cameron has said that every message we send should be readable by the state - even when we've encrypted it.

This is clearly a bad list of policies for digital rights supporters and we're going to fight them every step of the way. The Conservatives have a very small majority so if we work hard enough and persuade enough MPs, we can protect our digital rights and the Internet.

We can do it, but we need your help.

Can you join ORG today and give £5 a month to help us fight for digital rights at this incredibly challenging time?
https://www.openrightsgroup.org/join/

And if you're already a paying supporter, could you consider increasing your monthly donation?
https://www.openrightsgroup.org/join/upgrade-your-membership

Please share this blogpost by email and social media too.

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