Home Secretary Theresa May’s new snoopers’ charter (more formally known as the draft Investigatory Powers Bill) is currently being rushed through a joint committee of parliament, which is due to produce a report by 11 February. (Theresa May accused of rushing surveillance bill through back door by Alan Travis, The Guardian, 26 November 2015)
The bill will give legal blessing to the mass surveillance activities that Britain’s intelligence agencies – GCHQ (Government Communications Headquarters), MI5 and MI6 – have been carrying out for well over a decade, while much of the accompanying rhetoric from politicians and media pundits seeks to legitimise a shockingly intrusive level of scrutiny by presenting it as being necessary to ‘protect us all’ from terrorism.
In recent years, various agencies of the bourgeois state have maintained a highly unpopular tangled web of spying programmes, either by exploiting loopholes in outdated laws or by circumventing the law entirely and simply ‘trading intelligence’ with the US (whose monopoly control of the internet gives it unparalleled access to the online activity of internet users the world over).
Undaunted by negative media and public perception, the government is now keen to push through legislation that builds on the foundations put in place by Labour during its last term in office.
How did we get here?
The interception and storage of electronic communications in Britain has a murky and convoluted history. For the past decade and a half, archaic and poorly-defined clauses in laws that were passed before the internet existed have been used to keep surveillance powers beyond even the timid reach of parliamentary scrutiny.
More importantly, such practices have kept official actions out of the public eye. Section 94 of the Telecommunications Act 1984, for example, is used to force mobile phone companies to hand over all our call data. (Investigatory Powers Bill: a force for good – if done right? by Lord Paul Strasburger, The Register, 11 January 2016)
The first incarnation of a modern electronic surveillance law was born when Tony Blair’s Labour government passed the Regulation of Investigatory Powers Act (Ripa) 2000. Ostensibly created to provide ‘oversight and transparency’ around surveillance practices (as the movers of the new bill also claim they are trying to do), the act in reality facilitated the broad interception and storage of physical and digital communications – and gave access to this data to a huge range of public bodies.
Ripa has since been used by council officials for such vital ‘security’ measures as monitoring families – not regarding concerns of child abuse or criminal activity, but, for example, to check if they live within a particular school catchment area – and covertly checking up on fishermen who were suspected of illegally harvesting cockles and clams. (Ripa powers only used by Poole council twice since 2009 after spying outage by Juliette Astrup, Bournemouth Echo, 6 January 2016)
The investigatory powers tribunal established to hear Ripa-related complaints heard 956 cases between 2000 and 2009. Only four were upheld. (Report of the Interception of Communications Commissioner, Investigatory Powers Tribunal, 22 June 2010)
A related law, the Terrorism Act 2000, which also grants police blanket powers in the name of ‘public protection’ was recently used to seize the laptop of a BBC journalist returning from Syria. (Newsnight journalist’s laptop seized by UK police under Terrorism Act by Ben Quinn, The Guardian, 29 October 2015)
In the past, the Conservative party presented itself as being strongly opposed to such all-encompassing snooping. David Cameron stated in June 2009: “Today, we are in danger of living in a control state. Every month, over 1,000 surveillance operations are carried out. The tentacles of the state can even rifle through your bins for juicy information.” (The UK government's web spying plans: a timeline by Katie Scott, Wired, 4 April 2012)
In 2010, the ConDem coalition (to a considerable extent as a result of LibDem pressure) even agreed to end the routine storage of email and internet records that the state’s agencies did not have ‘good reason’ to hold. (Conservative-Liberal Democrat coalition deal, The Guardian, 12 May 2010)
New bill legitimises and extends the status quo
This promise was never fulfilled, and so not much will really change with the passage of the bill into law. The depth and breadth of surveillance in Britain is already mind-bogglingly pervasive and widespread. US agencies routinely collect all kinds of data on British citizens and hand it over to their counterparts in Britain in order to circumvent domestic laws that prohibit such snooping. (GCHQ-NSA intelligence sharing unlawful by Karla Adam, The Washington Post, 6 February 2016)
Programmes such as Dishfire, Muscular and Tempora (revealed in recent years by whistle-blower Edward Snowden) have been unselectively collecting billions of records of phone calls, text messages, emails and website visits for years. (NSA leaks: Dishfire revelations expose the flaws in British laws on surveillance by Heather Brooke, The Guardian, 17 January 2014)
Meanwhile, in Britain, the GCHQ spy centre in Bude, Cornwall, has for years been using mirror arrays (essentially microscopic signal-splitters) to copy data that passes through fibre-optic cables under the sea from Europe and Britain to the USA, and sharing the collected data with the US’s National Security Agency (NSA).
“The sheer scale of the agency’s ambition is reflected in the titles of its two principal components: Mastering the Internet and Global Telecoms Exploitation, aimed at scooping up as much online and telephone traffic as possible. This is all being carried out without any form of public acknowledgement or debate.
“One key innovation has been GCHQ’s ability to tap into and store huge volumes of data drawn from fibre-optic cables for up to 30 days so that it can be sifted and analysed ...
“GCHQ and the NSA are consequently able to access and process vast quantities of communications between entirely innocent people, as well as targeted suspects ...
“Britain's technical capacity to tap into the cables that carry the world's communications – referred to in the documents as special source exploitation – has made GCHQ an intelligence superpower.
“By 2010, two years after the project was first trialled, it was able to boast it had the ‘biggest internet access’ of any member of the Five Eyes electronic eavesdropping alliance, comprising the US, UK, Canada, Australia and New Zealand.
“UK officials could also claim GCHQ ‘produces larger amounts of metadata than NSA’. (Metadata describes basic information on who has been contacting whom, without detailing the content.)
“By May last year, 300 analysts from GCHQ, and 250 from the NSA, had been assigned to sift through the flood of data.
“The Americans were given guidelines for its use, but were told in legal briefings by GCHQ lawyers: ‘We have a light oversight regime compared with the US.’
“When it came to judging the necessity and proportionality of what they were allowed to look for, would-be American users were told it was ‘your call’.
“The Guardian understands that a total of 850,000 NSA employees and US private contractors with top secret clearance had access to GCHQ databases.” (GCHQ taps fibre-optic cables for secret access to world’s communications by Ewen MacAskill, Julian Borger, Nick Hopkins, Nick Davies and James Ball, The Guardian, 21 June 2013)
This huge ongoing surveillance operation has been allowing British spies to monitor some 25 percent of the world’s internet traffic for the last seven years, including whatever originates in Britain and travels to the United States (much more than many of us realise, given the widespread use by Britons of American-based services like Gmail, Amazon, iTunes, Facebook etc). To capture Britain’s internal traffic in a similar way, there needs to be systematic storage by Britain’s domestic ISPs and phone providers – hence the need for this bill.
The ‘safeguards’ Ms May touts in the new bill are not there to protect citizens from the misuse of this mass, intrusive surveillance, but rather to protect the police and various spy agencies from any repercussions of their spying, as a recent Guardian article made clear.
“This bill is characterised by a clear anti-democratic attitude. Those in power are deemed to be good, and are therefore given the benefit of the doubt. ‘Conduct is lawful for all purposes if …’ and ‘A person (whether or not the person so authorised or required) is not to be subject to any civil liability in respect of conduct that …’: these are sections granting immunity to the spies and cops.
“The spies’ surveillance activities are also exempt from legal due process. No questions can be asked that might indicate in any legal proceeding that surveillance or interception has occurred. This is to ensure the general public never learn how real people are affected by surveillance.
“The cost of this exemption is great. It means British prosecutors can’t prosecute terrorists on the best evidence available – the intercepts – which are a key part of any prosecution in serious crime cases worldwide.
“Those without power – eg citizens (or the more accurately named subjects) – are potentially bad, and therefore must be watched and monitored closely and constantly. The safeguards mentioned in the bill are there to benefit the state not the citizen. The criminal sanctions aren’t so much to stop spies or police abusing their powers, but rather to silence critics or potential whistle-blowers.
“That’s clear because there is no public interest exemption in the sweeping gagging orders littered throughout the bill. The safeguards for keeping secure the massive troves of personal data aren’t there so much to protect the public but to stop anyone finding out exactly how big or invasive these troves are or how they were acquired. Again, we know this because there is no public interest exemption.
“While the concerns of the state dominate, those of the citizen are nowhere to be seen. There is almost no mention in the bill of the privacy and democratic costs of mass surveillance, nor of seriously holding the state to account for the use and abuse of its sweeping powers.” (This snooper’s charter makes George Orwell look lacking in vision by Heather Brooke, The Guardian, 8 November 2015)
The snoopers’ charter will also ban programmers and service providers from using any end-to-end encryption that doesn’t include back-door access for the security services. This means that all online and phone communications will essentially be open and could live on for as long as the state has the physical and economic means to store them.
Internet-based messaging services like Facebook Messenger, Apple iMessage and WhatsApp will be required to decrypt all our messages, browsing histories, locations and calls for easy storage and access. The difficulties in keeping so much unencrypted personal data secure from hackers of all kinds is bound to lead to many more data breaches like the one experienced by TalkTalk last year. (Tech firms warn snooper's charter could end strong encryption in Britain by Alex Hern, The Guardian, 9 November 2015)
Keeping people safe?
We’re told that these measures are necessary in order to combat terrorism, organised crime and child abuse, but in the recent Paris attacks, as in numerous other terrorist atrocities, extensive surveillance did not lead to the state being willing or able stop the attackers, despite the fact that they used unencrypted communications and were known to the authorities. (Signs point to unencrypted communications between terror suspects by Dan Froomkin, The Intercept, 18 November 2015)
Some security experts are said to be concerned that the new measures might make the situation significantly more difficult for them. It is perfectly possible that trying to get meaningful information out of such vast mountains of data will prove to be a positive hindrance to any constructive or meaningful anti-terrorist or serious crime operation – unless huge numbers of staff can be hired to sort, analyse, and act on the information collected. (UK mass surveillance ‘totalitarian’ and will ‘cost lives’, warns ex-NSA tech boss by Matt Burgess, Wired, 6 January 2016)
Of course, the holy grail is for all such sifting and sorting to be automated, so that useful and relevant information on an individual that the state is interested in can be accessed at the tap of a button – à la Minority Report and other such Hollywood dystopias.
Making useful sense out of so much data certainly requires huge computing power, but the necessary analytical intelligence is already developed to a large extent. The scenario painted above may go far beyond Amazon recommendations or Google ad-placing, but those types of applications have laid the necessary foundations to bring the dreamed-of automation within reach – at least as far as the imperialist governments are concerned.
Julian Assange has pointed out that, as data costs come down, setting up services to store, collect and analyse citizens’ data is coming within the financial reach of most governments. Indeed, commercial services (eg, VASTech in South Africa) already exist that offer to store a year’s worth of phone data for a country for around $10m. These prices will only come down, and would alleviate the need for data retention by individual service providers. (See The militarisation of Cyberspace by Julian Assange, Cypherpunks: Freedom and the Future of the Internet, 2012)
For now, there is still much argument over who has responsibility for financing the security, storage and processing of so much information. The architects of the snoopers’ charter have been forced to recognise the immense technical and financial effort required for many small and medium-sized service providers to comply with the new requirements, and so the rules will only apply to the largest companies – the ones that would, in theory, be able to introduce the massive infrastructure necessary – albeit with state assistance. (ISPs warn UK snooping law will cost time and lots of money by Jamie Rigg, Engadget, 12 October 2015)
As for the ban on end-to-end encryption, this will certainly affect a large proportion of the population who aren’t particularly knowledgeable in these matters, although a quick search reveals the existence of a sizeable range of open-source solutions that would be impossible to ban without crippling the British internet.
This is not to say that surveillance has never foiled a terror attack, but that the aims of the charter and the actual resources needed to improve such work are distinctly at odds. The measures proposed by the Investigatory Powers Bill will actually function more like CCTV – not as a preventative measure, but as material with which to facilitate an investigation after the fact.
Real reason for the bill
Why, then, is the government trying so hard to push the bill through, giving the parliamentary committee only a few months to sort though a massively complex topic?
The mass storage of personal data will not be successful in preventing crime or terrorist attacks, but it will be useful in gathering detailed information on anyone and everyone the state deems might be posing a threat to the interests of the ruling class. It will have a chilling effect on any journalism that runs counter to the government’s agenda, and could potentially be used to silence or blackmail dissidents or political opponents. It is also bound to lead to increasing levels of censorship as people become warier of expressing nonconformist opinions in the digital space.
The data could also be used to identify networks of people involved, even tangentially, in any kind of anti-capitalist or anti-imperialist movement. These powers will be used to protect the investments, alliances and interests of the ruling class, repressing and silencing opposition.
The recent haste to push through the snoopers’ charter also coincides with the expected introduction of the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the USA in 2016, as a companion to the recently-enacted Trans-Pacific Partnership (TPP) between 11 Pacific Rim countries and the US. TTIP has been described as “the most brazen corporate power grab in American history”. (Chris Hedges, Alternet, 7 November 2015)
Although TTIP has been discussed in the utmost secrecy for years, leaks and the recent release of the terms of the TTP have given us a good idea of its aims, and of the impact it could have.
In line with TTP, TTIP will remove ‘barriers to free trade’, further suppressing the rights of states and workers to make decisions that are in their interests rather than the interest of the finance capitalists. The imperialist necessity of ‘capital uber alles’ will reach a sickening new peak in its destructive trajectory. (See Multinationals backed by the US imperialist government seek to subject the world to their diktat, Lalkar, November 2014)
The one-two blow of TTIP and the snoopers’ charter together represents a very serious assault on the working class. This is not a bill to keep workers safe, but an attempt by the ruling class to keep itself safe from us!
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