The Coalition government came to power promising to be proud and passionate defenders of our freedoms. In a letter to voters before the last general election, David Cameron said that it is ‘time to take a stand against the ever-increasing powers of the “big brother state”. In the 2010 Coalition agreement, the Conservatives and Liberal Democrats promised to ‘implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion’ and said that they ‘will end the storage of internet and email records without good reason’.
The message was pretty clear. Gone were the days when the naughty authoritarians in the Labour party would chip away at our freedoms by finding ever more ways to spy on the public.
Just over two years later, the Coalition have reheated plans introduced in 2008 by Labour (who then dropped the plans) for a significant extension of powers to collect and allow access to all sorts of information about our communications online.
This an impressive turnaround. Instead of doing less surveillance, like they said they would, they are proposing they should instead do more. Perhaps the authors of the Coalition agreement were being sarcastic? It can be hard to tell in print sometimes.
The proposed law in question is the draft Communications Data Bill, which give the government more powers to collect and access information about our communications data.
At Open Rights Group we think the proposals add up to a very serious threat to privacy, allowing public bodies and law enforcement to access all sorts of information about who we connect with on Facebook, our LinkedIN network or who we’re calling on Skype.
Law enforcement access to communications data for specific purposes is not wrong in principle. But we don’t believe the generalised collection of communications data about the population by the government and law enforcement bodies is acceptable in a liberal democracy.
There are two key issues here. First, this Bill will lead to the collection of far too much information about everyone. Second, it will give far too many people access to that information.
The government wants the extremely broad power to order any communications provider to collect and disclose ‘communications data’. So that means that businesses like Facebook or Twitter or Google could be asked to store records of everybody’s use of their services. Or Internet Service Providers like BT or TalkTalk could be asked to install devices that will hoover up that data as it flies across their networks and serve it up to law enforcement on request. Either way – lots and lots of information about all of our lives.
‘Communications data’ is the ‘what, when, who, and where’ of a phone call or other communication. It is not the content. So, when I emailed somebody, not what I wrote in the email. Or, my friendship circle on Facebook, rather than the things I say to them. So the Government say they aren’t taking the really juicy stuff. Just the facts about our emails, phone calls or social network use.
But this kind of ‘communications data’ can be incredibly revealing. It can paint a very intimate picture of our lives. Details of social media communications reveal likely political opinions, lifestyle preferences, social circles, habits and patterns of behaviour. Although only the fact that a particular website was accessed is to be recorded, such information can still speak volumes. The fact that someone repeatedly contacted Narcotics Anonymous, or Gaydar, or a political website goes some way to indicate significant aspects of their identity or personality.
By combining email, telephone and web access data, and mobile phone location history, one can deduce a detailed picture of an individual’s movements, habits and thoughts to a greater degree than phone records alone could offer.
For instance, the data could identify a protester who posts to a radical politics site, and their location at any given time. Their favoured contacts, those likely to be politicised and their locations could be identified. The data could in effect be used to monitor political activity, or any activity deemed unusual or deviant, to a finely grained level.
The other issue is the woefully inadequate safeguards over access to this treasure trove of data. For law enforcement purposes, access to the data will simply require designated senior officers at those bodies to believe that it’s “necessary to obtain the data” and that it is “proportionate to what is sought to be achieved.” That effectively means that there will be no external, meaningful and direct oversight of access requests. We believe this will be ripe for abuse and exploitation.
One almost feels lucky that we have the Leveson Inquiry to remind us all that the ability to access personal information will be exploited for a variety of nefarious reasons. There are many ways that the data involved in this Bill could be misused in a manner that would affect whistleblowers, journalists and their sources, legal privilege and activists. The current oversight regime is lax. These are plans to extend it to a much broader and richer data set.
Almost as bad as the Bill itself is the way it was developed and proposed by the Government. There has been no consultation and the Home Office has provided almost no detail about how the powers will work in practice, or about how they estimated the costs and benefits of the Bill.
The Government have not made a compelling and detailed case for the proposals. What we need is a full review and debate about what information is and is not available, to whom, the power and usefulness of that information, any possible harms that may come about from the misuse of it and what collection and access regimes are appropriate.
Questions about the proportionality and necessity of the collection and use of this data for different purposes need to be discussed in a forum that can make democratically legitimate judgements about the trade-offs between the public interest, security and privacy. Forums like Parliament.
Instead the Home Office have fast-forwarded past the boring public debate bit, straight to a happy ending of their own choosing. But it is not for officials in the Home Office to simply make those judgements for us.
In short, the proposals and the process that led to their creation appear to have been built to avoid and withstand public scrutiny, rather than to be subjected to and improved by it.
There is a Joint Committee of MPs and Peers examining the draft Bill at the moment. Their call for evidence has now closed, and they will report in November. You can read more on our website. We are working hard to oppose the Bill, alongside others such as Privacy International, Big Brother Watch, Liberty and 38 Degrees.
There are a few things you can do if you care about this. First, write to your MP. Let them know what you think. One thing that will help above all else is making politicians and the government aware of the public’s feelings about this.
Second, you can join Open Rights Group. We rely on people like you to sustain us financially, but as important, to sustain our grassroots work. Join us and help build the strongest possible citizen movement against illiberal government technology policies. If we do, who knows – maybe governments will be less likely to make extraordinary U-turns on the promises they make before assuming office.