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Web surveillance plan divides the coalition

3 April 2012

9:49 AM

3 April 2012

9:49 AM

The government’s under fire from members of both coalition
parties over its plans to extend the state’s investigatory powers to cover new means of communication. Currently, under section 22 of the Regulation of Investigatory Powers Act 2000 (RIPA),
public bodies can obtain communications data without the need of a warrant or any external authorisation. This gives them access to a wide array of information including the location, time, date
and duration of a phone call or the IP address from which an email was sent. Over 100 public bodies — from the Home Office and local councils to the Food Standards Agency and the Charity
Commission — can make use of this power for reasons ranging from national security or crime prevention to public health or assessing tax liability. The government’s proposal —
which will reportedly be included in the Queen’s Speech next month — is to extend this power to include Skype, social networks and online gaming.

And why? In today’s Sun, Theresa May makes the national security/law and
order argument:

‘new technology can also be abused by criminals, paedophiles and terrorists who want to cover their tracks and keep their communication secret… Looking at who a suspect talks to can
lead the police to other criminals. Whole paedophile rings, criminal conspiracies and terrorist plots can then be smashed… We cannot afford to lose this vital law enforcement tool. But
currently online communication by criminals can’t always be tracked. That’s why the Government is proposing to help the police stay one step ahead of the criminals.’

Meanwhile, her fellow Tory MP David Davis provides the counterargument:

‘The new law does not focus on terrorists or criminals. It would instead allow civil servants to monitor every innocent, ordinary person in Britain, and all without a warrant… This
would be a massive, unnecessary extension of the State’s power… Of course governments should use the best tools at their disposal to tackle terrorism. But we can do this under the current
system. If they want to see all this information, they should be willing to put their case before a judge or magistrate.’

And Davis isn’t the only Tory up in arms about the proposal. The Times quotes Jacob Rees-Mogg saying
that ‘The Government ought to remember why it favoured liberty in opposition’ and Dominic Raab warning:

‘Far from making us safer, these plans to privatise “Big Brother” surveillance would expose us to massive fraud because the technology is flawed and there aren’t
proper safeguards in place.’

And then there’s the Lib Dem resistance. Party president Tim Farron tweeted last night that ‘We
didn’t scrap ID cards to back creeping surveillance by other means. State mustn’t be able to trace citizens at will.’ And, in a very thorough article on Liberal Democrat Voice, MP Julian Huppert says:

‘I haven’t seen the details of these proposals — not for want of asking — but it’s clear to me that what we want is more safeguards, not more powers for the
state to keep data.’

He also point out one of the key problems with extending the law in this way: the difficulty of separating data about the communication from its ‘contents’ — which are
excluded from section 22 of RIPA and therefore require a warrant. Huppert says:

‘No expert I’ve ever spoken to can see how this could possibly be done without great expense and without allowing access to the actual message that was sent — which is not
legal without a warrant from the Home Secretary.’

As Justice highlighted in its ‘Freedom from
Suspicion’ report
on RIPA in October, the distinction between data and contents is already blurred, and is becoming increasingly so. It quotes Professor Peter Sommer as pointing out that
‘with Internet technology you have to collect everything and then throw away what the law does not allow you to have or use’. This means that, even those who believe giving public bodies
access to communications data without a warrant is a justifiable breach of civil liberties should consider that this change would, in all likelihood, give them access to the contents of those
communications too.

All of which is to say, this is a proposal the government will have a very tough time getting through Parliament, if it even ends up being included in the Queen’s Speech.

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