Parliament's Joint Committee on the Draft Communications Data Bill has now published its official Call for Evidence: (.pdf 83 KB)
It is interesting that there are 26 Questions, far more than normal for the Parliamentary rubber stamping process that is usual for a Draft Bill:
Most Spy Blog readers will have their own opinions about these "26 Questions (but a bitch ain't one)" and the ones which are missing from this list.
Here are a few points which spring to mind which might stimulate your own Evidence Submissions to the Joint Committee,
N.B. remember to take some precautions (c.f. ht4w.co.uk) if you are an "insider" and do not want to risk tipping off the vested interests who are promoting this Bill, who have the self-authorised power to snoop, in secret, on your Communications Data and that of the Joint Committee, without a warrant, c.f. the immediately previous Spy Blog article
Below are specific questions about the details of the draft Bill. The Joint Committee would appreciate written submissions on any of these questions on which you have evidence to contribute It is not necessary to address every question. The Joint Committee will also welcome other comments related to the draft Bill, even if not directly addressing the questions below.
1. Has the Home Office made it clear what it hopes to achieve through the draft Bill?
The evasive media propaganda from the Home Office , including Theresa May the Home Secretary and the surveillance state éminence grise of repressive surveillance policies Charles Farr (why is he still in a position of influence under the Coalition after his disastrous New Labour policies ?), has contained no technical details whatsoever, so it is certainly not clear exactly what the scheme will or will not apply to.
2. Has the Government made a convincing case for the need for the new powers proposed in the draft Bill?
They are in "Must Be Seen To Be Doing Something (No Matter How Expensive Or Stupid)" mode.
3. How do the proposals in the draft Bill fit within the wider landscape on intrusion into individuals' privacy?
More snooping, no effective counterbalances to prevent abuse by bureaucratic public agencies.
No specific abuse of Communications Data related criminal sanctions, to deter corrupt or evil individuals within such agencies.
4. What lessons can be learnt from the approach of other countries to the collection of communications data?
Plenty of other countries happily work with Judicial warrants for Communications Data, rather than the UK "self-authorisation" approach.
5. Are there any alternative proposals with regard to the technique and cost of obtaining
communications data that the Government could consider?
Data Preservation for specific, narrowly targeted investigations, restricted to Serious Crimes only, rather than massive Data Retention of almost entirely innocent data.
There should be no access to, say, Location Data, whatsoever for petty "general crime" investigations, especially not by non-Police or non-Intelligence agencies.
If, say, a Tax Investigation is serious enough to require Communications Data, then it is serious enough for a joint investigation with the Police i.e. no HMRC staff should have access on their own, like they do now.
6. The draft Bill sits alongside the Data Retention Regulations. How will these two pieces of legislation interrelate? Would it be preferable to have one overarching piece of legislation that governs the retention of communications data?
Please do not try to "policy launder" the repressive UK proposals and inflict them on the other 400 million innocent people throughout the European Union! The EU Data Retention Directive was originally proposed by the then Labour Home Secretary Charles Clarke when the UK held the revolving Chair of the European Commission and then the Government pretended that they had been forced to comply with it, because the EU told them to do so.
7. If it is concluded that the provisions of the draft Bill are essential, are there any other measures that could be scrapped as a quid pro quo to rebalance civil liberties?
They are certainly not essential.
There is a vast amount of repressive legislation brought in mostly by the previous Labour government (but with some old Conservative stuff as well) which must be repealed, regardless of this Communications Data Bill to "rebalance civil liberties".
Almost none of these repeals are in the much delayed and rather weak Protection of Freedoms Bill.
8. Will the proposals in the draft Bill pose a risk that communications service providers see the UK as a less attractive base. What might be the effect on business?
Increased prices to consumers
Vodafone etc. already minimise the tax they pay by not being wholly based in the UK.
This Bill will undermine the efforts of the Treasury and the BIS to attract them to invest in the UK.
9. Is the estimated cost of £1.8bn over 10 years realistic?
Where did this mythical figure come from ?
Draft Communications Data Bill impact assessment (PDF file - 309kb)
Since when has the Home Office, or any Government Department, ever been able to accurately predict costs 10 years into the future ?
Where is the detailed independent Impact Assessment ? The Home Office's Impact Assessment is just deluded wishful thinking.
The Home Office is literally financially innumerate and cannot be trusted
even to supply correct figures for its own accounts, let alone to make reliable estimates for any major IT project whatsoever.
Look at their appalling inability to even guesstimate to the nearest billion pounds, anything to do with their, thankfully defeated, centralised National Identity Database Scheme.
Can anyone actually point to an example of a major IT system which the Home Office has been involved in, which has not been late, over budget and which has actually had a positive outcome on reducing crime etc. rather than just being "Seen To Be Doing Something" as part of the pretence to be "tackling" or "addressing" a problem ?
10.The Home Office suggests the benefits that could be delivered by the enactment of the draft Bill could be worth between £5-6bn. Is this figure realistic?
Where is the detailed independent Impact Assessment ?
The Draft Communications Data Bill privacy impact assessment (PDF file - 516kb) is not detailed and is full of airy fairy hand waving wishful thinking about the alleged "benefits" of the proposals.
The Home Office regularly lies about the alleged financial benefits of its policies.
They really have no clue at all - Serious Crime is still being estimated
as costing the UK economy "between £20 billion to £40 billion a year" a figure which was used to justify the Serious Organised crime Agency and which is exactly the same wildly imprecise one which is being used to justify the replacement for SOCA, the National Crime Agency.
Not only do they lie about such estimates, they wage propaganda smear campaigns against even well researched academic studies which do try to estimate the cost / benefits of their policies (from ID Cards to Drug Policy etc.)
The cost justifications include "tax revenue" (something which the Home Office has no expertise in) and "criminal assets seizures" - something which the Home Office has utterly failed in. Why did the (criminal) Assets Recovery Agency set up by the Home Office have to be disbanded ? Because it was costing more to run and administer than the paltry amount of money that was being seized. How can this be a justification for alleged billions of pounds of "benefits" of the Communications Data Bill ?
11.Are the definitions of communications data and communications service provider appropriate? Do they sensibly define the scope of the powers in the draft Bill?
When the Regulation of Investigatory Power Act 2000 was "debated" (it was not properly scrutinised by Parliament) the politicians were told that Communications Data was "itemised telephone bill" information.
Over the years the deliberately vague RIPA wording was abused, without further Parliamentary debate, to include new forms of Communications Data especially Location Based Services mobile phone data.
Communications Data must be legally defined in the Bill / Act to clearly differentiate between:
a) Subscriber Data for landline telephone, mobile phones and internet service provider accounts - the only sort of Communications Data which, say, Local Authority Trading Standards departments should be allowed to request on their own - anything more serious which might need other Communications Data should involve the Police.
b) Mobile Phone Location Data has 4 levels of intrusiveness
- historical Locations Data where a voice call, SMS text message or internet data was sent or received from
- real time (or near real time) Locations Data where a voice call, SMS text message or internet data was sent or received from
- historical Location Data of the automatic handshakes between a mobile phone handset or other device and the network, typically every 10 minutes or so or when a phone is switched on or off - such data is not instigated by a human, but is automatic collected.
- real time (or near real time) Location Data of the automatic handshakes between a mobile phone handset or other device and the network, typically every 10 minutes or so or when a phone is switched on or off. - such data is not instigated by a human, but is automatically collected.
e.g. The Fire and Rescue or Ambulance services should have real-time mobile phone Location Data access when a 999 call is made for emergencies so that they can respond quickly and can try to detect fake 999 calls. They should not be allowed to see the historical Location Data History of a mobile phone (and very likely that of its owner). There are no conceivable circumstances for them to have access to the real time (or near real time) tracking of a mobile phone device which is not making or receiving a voice or SMS text or internet data call.
The forthcoming European Union eCall plan to put a mobile phone device in every
new vehicle sold in the European Union, which is activated when an airbag goes off in an accident is an example of something which must be covered by this Bill i.e. 999 call responders should have Location Data access when there is an accident, but even the Police should not have immediate real time access to the resultant automatic mobile phone device vehicle location tracking history, without an independent judicial warrant..
Unlike in 2000, when RIPA was "debated", an increasing number od SmartPhones and other devices now include Global Positioning System (GPS) chips within them. These are not necessary for the transmissionor reception of voice, SMS text or internet data calls. However the GPS latitude, longitude, elevation and location tracking history may be periodically upload automatically, with or without the knowledge or active intervention of the user.
The Communications Data Bill should make it absolutely clear as to whether such GPS data is forbidden from being collected, stored and "Filtered" as Communications Data or not, something which it is unclear at the moment.
12.Which public authorities should be able to access communications data under the draft Bill? Should it be possible for the Secretary of State to vary this list by Order?
When RIPA 2000 was first introduced, the number of public bodies was small i.e. mostly the Police and Intelligence Agencies.
There was a vast expansion later on, via Secondary legislation, by Order which , as always, Parliament failed to scrutinise properly. This lead to such stupidities as the Egg Marketing Board being given RIPA powers.
It also lead to the abuses (through ignorance and petty bureaucratic tendencies) by Local Authorities, leading to scandals like the Poole Council using RIPA directed surveillance powers to snoop on innocent families suspected of being school catchment area cheats.
There is every reason to suppose that similar abuses involve disproportionate use of Communications Data powers, but, the Interception of Communications Commisioner's Annual Reports are so censored of any meaningful detail that we cannot be sure.
There must be no Order making powers at all in the Communications Data Bill.
There is a Home Office / Ministry of Justice legislation slot in every Queen's Speech,
so any absolutely necessary amendments (usually involving the renaming of Agencies or Departments) can easily be accomplished through Primary Legislation, with a chance for proper debate and scrutiny and amendment by Parliament, something which almost never happens with hated Secondary Legislation by Order.
13.How robust are the plans to place requirements on communications service providers based overseas? How realistic is it that overseas providers could be pursued for breach of duty?
A few large US companies with subsidiaries in the UK may "voluntarily" comply, provided that there is a competitive "level playing field" i.e. provided that their main rivals also comply.
But why should any Chinese or Russian or Iranian etc. ISPs ever comply ?
USE OF COMMUNICATIONS DATA:
14.Are the circumstances under which communications data can be accessed appropriate and proportional? What kind of crimes should communications data be used to detect?
Make it the same as the RIPA section 1 definition for Interception i.e. Serious Crime only, defined as likely to attract a prison sentence of at least 3 years in prison for a first time offence if convicted.
There are many occasions where access to Communications Data, especially Location Data about a communication is actually more intrusive than the Interception of the contents of the communication, which may be very brief and / or harmless (or coded).
If as is not really clear at the moment, the plan is to use Deep Packet Inspection and Digital Certificate man-in-the-middle attacks on world wide web connections, then since , effectively, Interception is involved, the collection of Communications Data should be treated as such.
15.Is the proposed 12 month period for the retention of data too long or too short?
Far too long.
All the Mobile Phone Communications Data cases which , say, the Metropolitan Police Commissioner cited e.g. the Soham murders, did not require 12 months of Communications Data, only a couple of weeks worth.
The recent murders in Toulouse, France where 4 murders were carried out by a terrorist / petty criminal motorbike assassin, who was tracked down through his Communications Traffic analysis of web server log files of an advert for a motorbike placed by one of his victims also did not require months of Communications Data Retention, only a few days.
That case illustrated the problems with the vast amount of such data. The 576 IP addresses from the web advert log files is not very many, but it took the Police far too long to analyse the data they already had immediate access to, allowing the serial killer, who had already been on their list of possible terrorist suspects for years, to strike again.
This will not be improved in the UK by the Communications Data Bill - automatic Filtering devices will not magically produce actual investigative break throughs without sufficient trained human resources - "finding a needle in a haystack by adding more haystacks" is a strategy which is bound to fail.
16.Applications for accessing communications data will be subject to a series of safeguards including approval by a designated senior officer within the public authority making the request. How should "designated senior officer" be defined? Is this system satisfactory? Are there concerns about compliance with Article 8 ECHR?
The "self authorisation" approach provides no transparency or public accountability tfor Communications Data access.
Keep and improve the idea of a Single Point of Contact with the technical and legal experience to reject disproportionate or multiply repeated or vexatious requests for Communications Data. Have this SPoC pass on the request to an independent Judge for a a proper, narrowly defined Warrant.
Publish this request and / or warrant automatically online as soon as the the need for immediate operational secrecy has expired i.e. as soon as an arrest has been made.
17.Would a warrant system be more appropriate? If you favour a warrant system should this apply to all public authorities including law enforcement agencies? Should a warrant be necessary in all circumstances? And what would the resource implications be?
Yes a warrant signed by an independent Judge (not one signed by the Home Secretary or any other politician or senior Whitehall bureaucrat) which can be challenged in Court if necessary should be required for all Communications Data snooping, including the Police and Intelligence Agencies.
Remember that snooping on Communications Data can be as intrusive or even more intrusive than the actual Interception of the contents of the same Communication.
18.Is the role of the Interception of Communications Commissioner and the Information
They do not provide any proper reassurance to the public with their existing budgets, under resourced budgets, and non-existent or heavily constrained criminal sanctions and a far too cosy relationship with the bureaucratic Whitehall Departments and Agencies and large companies they are supposed to be keeping an eye on.
They fail to do a proper job of in their existing roles, how can adding extra Communications Data Bill roles improve their performance at all ?
Scrap them both and start again with a proper Privacy Commission Department with ample technical and financial resources to deal with lots of individual cases directly affecting the public.
19.Are the arrangements for parliamentary oversight of the powers within the draft Bill satisfactory?
Parliament has proved itself to be useless at scrutinising Secondary Legislation by Order. This is almost never rejected and can never be amended even slightly, so all kinds of evil is smuggled in by the the Executive, without any proper detailed scrutiny or even a cursory basic sanity checking second opinion.
Given the years or so that it took for all of the the Codes of Practice under RIPA to be published, Parliament should insist that any such Codes of Practice be published within a year of the passing of the Bill.
All of the Communications Data Bill should come into force at once, there should be no leeway for the Home Office to dither an not bring bits of it into force for months or years afterwards like they did , much to their discredit, with the Regulation of Investigatory powers Act 2000. If legal powers are not need now, then they should not be in the Bill.
There should be an automatic sunshine clause which repeals any of the parts of the Bill which have not been brought into force after say a year or two at the most.
There will always be a Home Office / Ministry of Justice Primary Legislation every year if minor amendments have to be made but the Internet and Telecommunications are such critical parts of our society and economy, that any further necessary changes in this area deserve their own specific Primary Legislation.
20.Are the penalties appropriate for those communications service providers who fail to comply with with the requirements of the draft Bill?
Why should the Communications Service Providers be penalised for the inevitable technical failings of the mysterious and obsolete even before thay have come into service "Filtering" black box single points of failure ?
Read the small print of your contact with your telecommunications or internet provider - they cannot be reasonably be held to be responsible for Acts of God,, adverse weather , power failures, faulty software upgrades by third party software suppliers etc. etc. for the services they provide. Why should they face penalties under the Communications Data Bill for exactly the same failures which affect the collection of Communications Data snooping ?
21.Are the penalties appropriate for those public authorities that inappropriately request access to communications data? Should failure to adhere to the Code of Practice which is provided for in the draft Bill amount to an offence?
That is the wrong question !
The existing Regulation of Investigatory Powers Act 2000 section 1 on Interception provides for criminal penalties of up to 2 years in prison for unlawful Interception of the content of communications.
There are no criminal sanctions at all for the unlawful collection or access to the possibly equally intrusive Communications Data.
The Communications Data Bill should be amended to include such criminal penalties specifically aimed at Communications data abuse by individuals either within Communications Service Providers or within the Authorised Public Bodies i.e. the Police, Intelligence agencies.
Unlike RIPA section 1 there must be no secrecy provision i.e. up to 2 years in prison for revealing the mere existence of an Intercept warrant.
All Communications Data requests (but obviously not the resultant Communications Data itself) should be published on the web immediately and automatically after the Communications Data is no longer needed for a specific investigation i.e. once an arrest has been made when there is no longer any need for operational secrecy.
That should result in far fewer frivolous requests, less chance of authorised insiders using the system for personal or celebrity stalking or corruption and will highlight attempts at disproportionate mass surveillance "data trawling" and fishing expeditions.
Perhaps then there might be same restoration in public confidence in the Home Office, the Police and Intelligence Agencies etc., all of whom have betrayed the high standards which the public rightly expects of them.
22.Does the technology exist to enable communications service providers to capture communications data reliably, store it safely and separate it from communications content?
Hopefully not - this is a hugely difficult technical problem.
We do not want a Deep Packet Inspection Great Firewall of Britain, which could provide the infrastructure for current or future political repression.
23.How safely can communications data be stored?
Technically, quite safely using strong encryption, which is something which is not mandated in the current Code of Practice.
Code of practice for the acquisition and disclosure of communications data (PDF file - 970kb)
In practice, given the incompetence and corruption which has been shown by individual authorised insiders, even those with the highest security clearances, there is no chance that all such Communications Data will be stored securely, all of the time. There will be leaks and data breaches, in proportion to the amount of the data collected.
24.Are the proposals for the filtering arrangements clear, appropriate and technically feasible?
Until the Home Office clearly publishes a detailed technical specification of exactly which systems e.g. Web email, Twitter, FaceBook, Skype, Voice over IP, Peer to Peer Filesharing, Tor etc. and exactly which security encrypted protocols it is hoping to circumvent through Man-In-The-Middle attacks etc. ist is not possible to definitively answer such a Question.
All our experience with previous complicated Home Office IT systems makes us assume that this will be complete cock up, which will probably introduce previously exploitable vulnerabilities into our Critical National Infrastructure which will be abused by foreign intelligence agencies and criminals.
25.How easy will it be for individuals or organisations to circumvent the measures in the draft Bill ?
Until it is clear exactly which systems and protocols the Communications Data Bill will be applied to, that cannot be answered fully either.
It is not trivial to legally circumvent Communications Data snooping entirely, but it is possible right now, especially if you are a criminal and use stolen credit cards, stolen mobile phones etc.
See also ht4w.co.uk Spy Blog's Technical Hints and Tips for protecting the anonymity of sources for Whistleblowers, Investigative Journalists, Campaign Activists and Political Bloggers etc., who are forced to use some of the same techniques used by political dissidents living under dictatorships and by criminals.
26.Are there concerns about the consequences of decryption?
Strange Question. Decryption by whom, of what ?
Decryption by the Government of the encrypted Communications Data that the black box snooping Filters will collect ?
Decryption by the Government of Intermediate or Root Certificate Authority Digital Certificates to snoop on https:// by default services like Twitter or Google Gmail web email ?
The Deep Packet Inspection infrastructure which can do that can also be used by corrupt insiders to steal money flowing through e-commerce or internet banking or City of London financial trading systems and to snoop on and harass stalking victims etc. Is that really what the Government wants to create ?
You need not address all these questions.
"address" is not the the same as "Fully Answer" or "Solve the Problem"
Hopefully these 26 Questions and our brief notes will inspire you to write your own Evidence Submission to the Joint Committee on the Draft Communications Data Bill.
We will see if their eventual Report is nobbled by the former Whips and politicians with too comfy a relationship with the Intelligence Agencies who are on this Committee.