The Queen’s Speech will contain legislation on the interception of communications. Should Liberal Democrats (and indeed liberals) be alarmed?
I treat this question with some initial caution because in one respect many liberals have been – rightly – calling for more use of interception by the government for many years. That is in making intercept evidence admissible in court, so that more cases of alleged terrorism and the like can be brought to court , curbing the (claimed) need for legal powers to allow people to be restricted or restrained without a court case happening.
The other reason for treating the question with caution is that much of the media coverage has conflated two different issues: access to communications data and access to message content. Think of a letter that you post. Someone looking at the name and address you’ve written on the envelope and checking the date on the postmark is finding out something about you – who you communicate with and when. But that is of a different degree of intrusion from opening the envelope and looking at what you have actually written. Technically the two are also rather different – looking at an envelope rather than opening it.
Those differences explain why the existing rules for phone calls and the like distinguish between them. Access to content of phone calls, emails and so on (opening the envelope) currently can only be done when judged to be necessary to investigate or prevent serious crimes or in the interests of national security. They need a warrant signed by the Home Secretary.
From what I understand of the government’s plans for the Queen’s Speech, this is not going to change. That is important, but not the whole story.
What is going to change is the access to communications data (looking at the envelope, not opening it). Again, the principle of communications data being available is not new, and it is currently controlled under the Investigation of Regulatory Powers Act, 2000.
That was a pretty controversial Act with Liberal Democrats (and liberals), so the government’s plans to extend RIPA to cover a wider range of communications methods under the same regime needs caution, at best.
What the government will be proposing is to extend the RIPA powers to cover newer forms of communications such as Facebook Chat or Instant Messaging.
RIPA allows communications data to be used by the police, security services and others where it is a necessary and proportionate part of their legal investigations. Superficially that might sound a decent safeguard, but the record of RIPA is not promising – think of the abuse of RIPA by local councils.
That is a serious problem with the government’s plans, even though they do not include (hooray) the Labour scheme of producing one central database of all this communications data. That would have opened up a whole new world of security risks and potentials for abuse.
Liberal Democrats in Whitehall I’ve spoken to are very keen to see the RIPA safeguards improved. So far some changes have been kicked off – such as to those rules that local councils abused. But more will be needed.
In addition, there are technical issues here. One, of major concern to internet service providers, is that whilst the communications data for phone calls and emails has traditionally been held and kept for limited periods of time for their own billing and technical needs, the same does not apply to some of the newer forms of communications.
Here the government’s plans are unclear, as the Gateshead conference motion said that we should be “ensuring that service providers are not mandated by law to collect third-party communications data for non-business purposes by any method”. Yet, the government is wanting to change the law to provide access to such to data and will be offering money to such firms to gather this sort of data. Quite how that can be squared with the conference motion wording is hard to see, unless this will be a voluntary snooping scheme, whose value would then be highly questionable. (There is also the issue of quite how much money would be involved. Estimates so far are that the costs will be large.)
Moreover, there are technical issues around the access. This is where some of the debates get very technical, but to give a rough analogy many online communications are like a postcard. That is, if you are allowed to look at the postcard to see the name and address of the recipient, you can also thereby see the content by moving your eyes only fractionally to the left. In other words, access to the communications data opens up access to message content.
People such as Liberal Democrat MP Julian Huppert, and the party conference in Gateshead, have been very clear in their views that communications data should only be available if done in a way that does not make the message content available. Is that technically possible? Technical experts outside government say ‘no’, but the government seems to think it can be done. It is certainly true that GCHQ and the like have many advanced, expert techniques but it is hard to see at this point how this technical hurdle will be resolved, if indeed it can be.
In other words, on the likely most sensitive issue the details are shrouded in a fog of uncertainty. What is clear is that the details of what will be done are in some major respects a mix of uncertain and still up for debate.
However, what the Home Office proposes is not the same as what Parliament will legislate. No matter how flawed the initial proposal put to Parliament by Theresa May are, they put the RIPA rules on the table – giving the opportunity to get them changed to meet what a liberal approach should be – as little intrusion as possible, only for the most serious of offences and with rigorous, independently verified safeguards.
UPDATE: See also Why so many Liberal Democrats are angry
* Mark Pack is Party President and is the editor of Liberal Democrat Newswire.
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31 Comments
As a “technical expert”, it certainly is possible to show communication data without the content. But it should not be ISPs that collect this data, it’s not their prerogative to do show and costs will be passed onto customers.
If the government want a feed of Facebook data then they should be approaching Facebook for that.
Actually I don’t think the analogy with posting a letter does stand. Unless you write your return address on the outside nobody knows where it has come from except from a particular post box. Though I recognise that the monopoly of postal services created for a long time on both sides of the Atlantic were at least partly to do with ensuring the communication technology of the day went through a state agency that could snoop if it wanted to.
I think intercept evidence is materially different. It would (or ought to) involve a court order to monitor traffic on a particular communication channel identified with a particular individual or group under probable cause type suspicion.
These are both a far cry from the desired “full spectrum” monitoring they want which is just part of Proudhon’s 1851 prescient characterisation of government:
The unelected who run our country have always wanting these sort of spying powers and one day, given the right sort of patsy politicians in elected office they will get them. If it happens under a “Liberal Democrat” assisted government, then the party will have lost the right to use either word in its title.
We are liberals, for goodness sake; what on Earth are we doing even talking about letting something like this through? As far as I am aware, we would be letting the State know who we call, when, where from (in the case of mobiles), who we text, what webpages we visit, who we email, what we do on facebook (the list goes on) without even a warrant. I just don’t trust the State to treat this information properly; how many stories do we need to hear of sensitive data left on trains, put on CDs and bunged into the post, and so on?
Just read our manifesto, the Tory manifesto and the Coalition Agreement; all three are totally opposed to this. It’s time not to think that a little tweak here or there is enough; it’s time to turn to the Tories and simply say “no”.
Actually I think the better analogy is having a personal spook following you around noting who you speak to or visit (and yes, ANPR is a problem here too). They may not be able to hear what you say or see what you do, but are just one step away from “Lives of Others” type capability.
“We will implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion.”
Although the reporting of the new proposals may be inaccurate, there’s little doubt that if existing RIPA powers were extended to newer forms of communication it would represent a violation of the above clause of the Coalition Agreement, which we must stick to – as Richard Morris rightly says (http://www.newstatesman.com/blogs/the-staggers/2012/04/lib-dem-members-civil-clegg), “Nothing else will do.”
I understand what you’re trying to say Mark in respect to not automatically conflating the ability of the state to access information for investigative purposes and totalitarianism… but I just think its pretty darn clear that allowing access to who we are communicating and what websites we visit WITHOUT A WARRANT is crossing a line.
I was absolutely appalled when I saw Nick Clegg’s comments on the matter today. I assumed that this must have been Theresa May going out on a limb or something but apparently it has some form of Lib Dem ministerial approval. I think at the very minimum a warrant should be required in order for authorities to access information regarding who we communicate with. Justifying it on the basis that RIPA already allows the authorities access to that information in relation to other mediums without a warrent is not enought. I, and I imagine most Lib Dems, would like to see those warrantless parts of RIPA scrapped.
In short: what is the point in the ‘Freedom Bill’ and our commitment to civil liberties if we let something like this go through? I’ve probably been more supportive of the coalition to date than most Lib Dem members but for me this absolutely crosses a line. I simply cannot understand how ANY Lib Dem could possibly justify this.
Here is a genuine Liberal and liberal cause when we must distance ourselves from this further erosion of Civil Liberties. Otherwise our opposition to Labour’s failed attempt to intrude in this way and our campaign against Identity Cards and a national data base will be seen as worthless. NOW is the time for essential liberal values to be promoted.
I am sometimes ridiculed on other sites for my slavish loyalty to the party line but I think I do have to draw a line at this one. The crucial points are the extensions of snooping to new areas & the ability to monitor our communications in real time. How would we even know that content wasnt also being monitored ? We arent going to take GCHQ s word are we ?
This needs to be killed, if we have to kick it into the long grass to save tory embarrasement fine, as long as it isnt in the queens speech.
What is ‘Liberal’ or ‘Democratic’ about supporting the erosion of civil liberties?
Several commenters here have made a point I was going to make in my original comment (at 1.09pm)… I too have been a supporter of this Coalition and have promoted its achievements, but this really does cross a line. Whilst I opposed the NHS reforms, they did not offend my political principles (they were just stupid), but this is absolute core liberal stuff here. I would be very angry with the party if it did not oppose this totally… and the party doesn’t have that many supporters left.
Warrantless interception of communications is wrong and illiberal. End of. This is a red line for me – if it’s crossed, I’m resigning. So are a lot of other people I know.
Surely the key issue is whether a warrant is required. can’t see a problem if it is, big problem if it isnt
Foregone Conclusion and Simon – spot on.
Civil liberties are not really absolutes, Bad peple like bombers want to take them away, so the question seems to be one of minimization – what level of snooping will minimize our loss of civil liberties?
I have no idea. I suppose it depends on how useful the information would be, how well it would be used, how secure it would be, how long it would be kept, and how easy it might be for bad people to access it.
The present system of warrants provides judicial oversight which can reduce (though not eliminate) abuse, and would surely be as effective for social media as for other communications?
I think the best explanation as to why this is bad is to extend the letter analogy to cover the proposed changes (after all I work in the Industry and I’m on council of the Internet Services Providers Association so I should know a bit about this).
Today – A LEO has the right to ask an ISP if they’ve seen a communication from X, if the ISP has seen (and written down) that information for any reason (and hasn’t yet thrown it away) then they are obliged to tell the LEO what they’ve seen. Since in most cases this is just the outside of the envelope the amount of data that the LEO can have is fairly limited. There is no warrant required for this because under RIPA it was decided that communications data was fair game. If the LEO wants anything more they have to get a warrant issued by the appropriate authority and then they can install their little black (like flight recorders they aren’t actually black) box and intercept the data for the suspect(s) and for the time that warrant allows.
Future – ISP will be expected to open all letter (to make sure there are no letters hidden inside) have a quick read of the contents and then write what the LEOs have told them to record. Depending on the version of the document you’ve seen (there are a few versions flying around) the ISP then has to put this data into a database and allow a LEO to inspect it whenever they want (without the ISP knowing they’ve looked) or ship it to a third party (probably GCHQ) who will look after the data for the LEOs until they need it. Technically no warrant will be required because at no point does the LEO do the looking inside of the the envelope its the ISP.
Of course if you’re up to no good you just change the language you use in the letter and the person reading it can’t understand it anymore and discards it pointless until the LEOs come back with a new list of languages you have to learn and process.
Happy to provide a full technical version if anyone wants it 🙂
This is a clear moment for the Lib Dems in government to show they are different from Labour and Tories in that they will not be seduced into an erosion of civil liberties for the convenience of the security forces. I agree with many of the above contributors, this is a red line issue.
Anyway, how on earth do the government think they can get the ‘technicalities’ of this issue across. For recent successes on getting ‘technicalities’ over to the public we have the simplification of tax allowance for pensioners (Granny Tax), the rationalisation of VAT on hot food (Pasty Tax) and sensible precautions in case of petrol strike (mass fuel panic). So shall we write the headlines now? The Snoopers Charter.? The Big Brother Bill? Stasi Britain? Take your pick.
Let me echo Foregone Conclusion, Warrantless interception of communications is wrong and illiberal.
Every time time they mention terrorists and paedophile gangs think about how eagerly a judge or the home office would issue a warrant. in that case, there would be no need for these powers.
While there’s uncertainty over what might be in these forthcoming proposals, it is absolutely certain that Lib Dem communications on this issue have failed badly.
This is a core issue of grave concern to a large number of Lib Dem activists and supporters. We are at the start of a local election campaign. The last thing we should be doing is demoralising those activists and supporters even further than they have already been.
The way the party has handled its communications on this issue has been terrible. (The proposals themselves might also turn out to be terrible – we’ll see.) Senior Lib Dems needed to be front and centre yesterday and today, standing up for party policy and for liberalism. But they were nowhere. This is, at best, an astonishing failure of political communication.
If Derren Brown can stalk someone for two weeks and then ask them three simple questions to calculate how much cash they are carrying in their wallet (to the penny) without a warant, then government is wasting a huge amount of effort and political capital by following up moves to allow such intrusions with a series of bad questions.
All official information gathering exercises require a direct purpose to be legitimated – trawling pointlessly through a bureaucratic fog will land them on the rocks.
This is a red line issue, end of – if senior Liberal Democrat politicians seemingly have nothing to say on this, then I’m really struggling to find any reason to defend them anymore.
Whoever is supposed to be in charge of Liberal Democrat communications deserves the sack.
At least 50% of the various pundits on TV yesterday thought it had to be an April Fool. No government would be that stupid……. well again..!!
I can’t say I’m surprised by any of this – indeed I predicted it here on LDV shortly after the 2010 election, when Lib Dems were in a veritable frenzy over civil liberties. I pointed out then that high talk about civil liberties is so much easier when in opposition, but that parties tend to behave very differently once they have been in government a couple of years. It happened to Labour and now it looks like happening to you. Lib Dems will be slaughtered if this goes through, and in my view they will have brought it upon themselves by ramping up the anti-“authoritarian” rhetoric in such an irresponsible way over the past ten years. What goes around, comes around.
BCM: “what is the point in the ‘Freedom Bill’ and our commitment to civil liberties if we let something like this go through?”
Don’t be such a cynic – the Freedom Bill will allow you to park your car on somebody else’s private property without comeback, and get married late at night. I don’t know about you but those freedoms will enhance my life immeasurably.
As other have said, this is a red line for me (the NHS came close and I’m still unhappy about it, but it’s not a matter of principle like this.).
Any interception of communication, even if only the envelop and not the content, without a warrant is a no go.
We sign up on this, I’m out of the door since it means we’re no longer Liberals.
@Stuart Mitchell
“It happened to Labour and now it looks like happening to you. Lib Dems will be slaughtered if this goes through, and in my view they will have brought it upon themselves by ramping up the anti-”authoritarian” rhetoric in such an irresponsible way over the past ten years.”
The key difference would appear to be that, if your post is anything to go by, the rank and file of the Labour party never actually give a shit about civil liberties in any terms other than whether or not it made for good political positioning, whereas we do.
Alix
So what are you going to do about it seeing all your party’s representatives seem to be okay with it?
From the Liberal Democrat constitution:
“10.2 An election for the Leader shall be called upon:
…(f) the receipt by the President of a requisition submitted by at least 75 Local
Parties (including for this purpose, the Specified Associated Organisation or
Organisations representing youth and/or students) following the decision of a
quorate general meeting;”
I wonder how many local parties the leadership will piss off with this legislation?
@Alix
No, it’s the coalition who treat this as an opportunity for political positioning.
28-day detention is the classic example. The coalition scrapped it – but with the bizarre proviso that legislation would exist in limbo, ready to be brought back immediately should the government deem it desirable. They’ve basically scrapped it and kept it at the same time. I fail to see how anybody can be impressed by that.
Anyone round here read Orwell’s 1984?
As a Tory and a Coalition supporter, I oppose this policy 100% and I hope people from all parties can join together and defeat it. The Lib Dems missed the chance to get the terrible NHS bill dropped, but this should be the new mission. Get this policy dropped and I’m confident many voters will thank you for it (and many of us Tories will be on side because this is yet another disaster!!!)
Even if content is not accessed, knowing someone apparently straight is accessing a gay contact facility or someone is regularly e-mailing a person in Greenpeace or the Occupy movement will be of great interest to many if the someone is in a position of power, influence , fame or sensitivity.
Simon McG’s point about warrants is good, but the issue is not only whether a warrant is required, but also the criteria. In the second case, for example, would a judge accept similar information as evidence that a serious crime might be committed?
tom jones: Getting these things turned round needs action from conservatives as well. I fear that if the Tories are convinced that a measure will be damaging only to the Liberal Democrats they’ll push as hard as they can for it, and see any damage to the Lib Dems as a bonus.