The Investigatory Powers Bill: kiss privacy goodbye

originally published on Medium, March 2016

By Silkie Carlo

If you were a Government hoping to smuggle through the most intrusive, least accountable surveillance regime in any democracy without pesky inconveniences like massive public, press and parliamentary scrutiny, right now would be a good time to do it.

Buried under the sound and fury of pre-referendum in-fighting, on the day before a heavily trailed budget, the Investigatory Powers Bill has its second reading in Parliament tomorrow. MPs will debate powers capable of fundamentally, irreversibly, shifting the relationship between citizen and state — and not in our favour.

But you’d be forgiven for missing the whole thing.

The draft bill’s publication in November was preceded by a formidable PR offensive — journalists invited to GCHQ, spy chiefs giving unprecedented interviews and the Home Secretary trumpeting “unparalleled” transparency and “world-leading” oversight.

Four months on, the picture wasn’t so rosy. The draft bill came in for a mauling from campaigners and tech experts. Pressed to make the operational case for mass surveillance, the Home Office floundered. Three parliamentary committees made more than 100 major recommendations for change. A total rethink was clearly needed.

Not that that’s stopped the Government. With extraordinary nerve and contempt for parliament and public, they published the Bill itself just three weeks later with only a few minor tweaks (note to Theresa May: changing the title of Part 1 from “General Protections” to “General Privacy Protections”, without inserting any actual privacy protections, is not a substantial revision).

And they’re a whole lot less keen to draw attention to it this time. Because, as pre-legislative scrutiny showed, this Bill is fatally flawed. The case simply hasn’t been made for these unbelievably broad, intrusive powers. Suddenly they’re all too keen to rush it through Parliament at breakneck speed and well below the radar. The fewer questions, the better.

But the public deserves to know what is about to be inflicted upon them so they can question. So they can challenge and push for the time this legislation so urgently needs — because, in its current form, it will make us less free and less safe too.

Here’s what the UK looks like if this Bill passes.

The State will be able read billions of our communications every day

The Bill gives intelligence agencies power to capture “external communications” in bulk.

“External” might sound comforting — but the Government can intercept communications every time a UK-based person accesses a website based overseas. That’s posts on social media sites (like Facebook) and emails sent by overseas providers (like Gmail or Hotmail). Oh, and all Google searches.

Spies need a warrant to do this, but these can be so broad they allow spying on whole networks, even entire populations. We think the agencies currently handle 50 billion communications a day. In 2014, this was covered by just 20 warrants.

Our internet history will be stored and open to hundreds of public bodies

Communications companies are already forced to keep our “communications data” for a year — who we talk to, when, where, for how long and with what device. Now they have to store our “internet connection records” too.

This would give a 12-month log of every website you visit, communication software, desktop widget and app you use, system update you download and device you connect to the internet — from cameras to baby monitors.

Hundreds of public bodies will be able to give themselves access — including NHS Trusts, the Gambling Commission and the Food Standards Agency.

The Government claims this will aid law enforcement — but available evidence says not. What it will do is give the state a frighteningly detailed picture of every innocent internet user’s life — where your kids go to school, your health concerns, your political views — and leave our most sensitive data open to identity theft, fraud and blackmail.

But we’ll still have encryption, right?

Wrong. In its mission to leave no online space free from state eyes, the Government is launching an expanded assault on encryption.

Buried deep in the Bill is a clause letting Ministers force telecommunications operators here and overseas to remove encryption from their services, allowing the state to read communications.

“Telecommunications operators” aren’t just Gmail, Facebook, Twitter and the like — they’ll include offices, businesses, law firms, Government departments and university networks.

The Government doesn’t need a judge’s sign-off, and operators must comply — but are banned from revealing they’ve been asked to do so. So if Apple v FBI were to occur in the UK, Apple wouldn’t even be able to disclose it had been served with a notice — let alone challenge it in court.

The Government will legally be able to hack…

Well — when criminals hack, it’s hacking. When the state does, it’s apparently “equipment interference”.

Hacking is much more damaging than “traditional” surveillance. As well as access to highly sensitive information, it gives total control over a device — phones and computers can be turned on or off, cameras or microphones activated and files added or deleted, all without the target knowing they’ve been hacked.

…and they’ll be able to hack in bulk

Bulk hacking is indiscriminate. It lets the state take services and software built to provide security and corrupt them to impose its eyes and ears on every call, text and web click. This could mean converting millions of webcams into covert surveillance cameras. Sounds far-fetched — but GCHQ already did it.

Bulk hacking critically damages the security of complex technologies on which modern society is built. It’s like agencies breaking into and bugging every house, leaving windows broken for others to get in — but without the residents knowing it’s happened.

It’s excessive and destructive, designed to achieve international mass surveillance by any means. Legalising it will gradually eradicate private spaces from modern society while damaging national security — and jeopardising human rights now and for generations to come.

It’s not just our communications — our every detail will be on file

Agencies will be able to acquire “bulk personal datasets” — vast databases held by the public or private sector. This power is almost unlimited. In practice it would involve the collection of expansive, but entirely secret, databases on millions of us — potentially the whole population.

These datasets contain details on religion, ethnic origin, sexuality, political leanings and health problems. They are also linked, producing frighteningly detailed pictures of every individual.

The idea is they can be analysed to flag up people of interest — but identifying those people without evidence of criminality is highly likely to involve discrimination. It’s a capability the Stasi could only have dreamt of.

Say goodbye to a free press

Publishing the draft Bill, Theresa May trumpeted unspecified extra protections for journalists.

There are none. In fact it creates a mechanism to let authorities circumvent the much more rigorous process already in place in the Police and Criminal Evidence Act, which protects the identities of journalists’ sources and communications between them. And, like the rest of us, journalists have no protection from interception, hacking or any bulk powers.

All this — and we’ll be no safer

When politicians start using fear to sell massively important legislation to the people, alarm bells should ring. It usually betrays a lack of anything more substantial to back up their proposals. You know — like evidence.

The state needs targeted spying powers — but that isn’t what this Bill contains. It’s crammed with speculative mass surveillance powers for which no operational case has been made. The Home Office produced reams of “evidence” with the Bill — but these are a mix of the anecdotal and hypothetical. In nearly all examples, reference is made to known terrorists, known suspects, known illegal sites — in other words, targeted surveillance.

In every major terror attack in Europe and the USA since (and including) 9/11, some or all of the culprits have been known to the agencies. Mass surveillance did not and could not have stopped them — focusing on prioritising and acting on intelligence on known suspects might have.

The Government can’t be allowed to smuggle this into law at lightning speed while opposition MPs and newsdesks are diverted by tussles over Brexit and budgets. There is simply too much at stake.

Please take the time to write to your MP and ask them to stop this Bill and rethink. If we fail to fight for our civil liberties now, they may prove incredibly difficult to win back.

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