A Bill which is slipping through the House of Lords will allow MI5 access to all our online communications, says John Naughton. It could mean we're all guilty until proven innocent. So why don't we care more?
When you wake on Thursday 5 October next, you will find yourself living in a different country. An ancient bulwark of English law - the principle that someone is presumed innocent until proven guilty - will have been overturned. And that is just for starters. From that date also the police and security services will enjoy sweeping powers to snoop on your email traffic and web use without let or hindrance from the Commissioner for Data Protection.
Every UK internet service provider (ISP) will have to install a black box which monitors all the data-traffic passing through its computers, hard-wired to a special centre currently being installed in MI5's London headquarters. This new mass surveillance facility is called the Government Technical Assistance Centre (GTAC). Who said Jack Straw had no sense of humour?
The Regulation of Investigatory Powers (RIP) Bill which is now before the Lords gives the Home Secretary powers of interception and surveillance which would be the envy of the most draconian regime. In addition to encroaching on civil liberties, the same Bill will also drive hordes of e-commerce companies from Britain to countries like Ireland where their encryption keys - extended pin numbers allowing users to decipher jumbled data - will be protected from government prying. An administration which complains continually about making Britain 'the most e-friendly country in the world' by 2002 is busily making sure that exactly the opposite happens.
How has this extraordinary state of affairs come about? Is it another manifestation of the cock-up theory of history, or are there more sinister forces at work? The answer is a bit of both. For some time, it has been obvious to Ministers and civil servants that British law needed updating to cope with the internet. In an era when online trading becomes ubiquitous, for example, some way has to be found of making 'digital signatures' legally valid. Accordingly, a special Cabinet Office unit headed by Professor Jim Norton set to work to devise a new legislative framework for the emerging world of e-commerce and online communications. The main result of his labour was the Electronic Commerce Bill.
As that Bill went through its Parliamentary hoops, it became clear that some parts of it - mainly the sections dealing with data encryption, interception and surveillance - were so deeply flawed that they threatened to sink the Bill. Given the Government's desire to make headway on the e-commerce front, the problematic sections were eventually jettisoned and the Electronic Commerce Bill became law in 1999.
It was a smart decision, but it left unresolved the problem of what to do about the encryption stuff. The DTI, smarting from its bruising at the hands of the computer scientists who had comprehensively shredded the original encryption proposals, wanted nothing more to do with it. Accordingly the poisoned chalice passed to the Home Office, which knows little of business and even less about the internet, but is endlessly attentive to the needs of the police, the security services and the Byzantine imperatives of official secrecy. The RIP Bill is the fruit of that secretive bureaucratic milieu.
The official rationale for the legislation is that it is required to bring UK law into conformance with the European Convention on Human Rights. In the end, this will have to be tested in the courts, but Straw's confidence is not shared by the Commons Trade & Industry Select Committee which last October recommended that the Government publish a detailed analysis to substantiate its confidence that the Bill does not contravene the Convention. This the Government has so far declined to do.
The Bill has four main parts. The first deals with the interception of communications. the second covers 'surveillance and covert human intelligence sources'. The third tackles encryption and the fourth covers the 'scrutiny of investigatory powers and of the functions of the intelligence services'. Parts I to III propose massive extensions of the state's powers to spy on its citizens while the fourth suggests a regulatory regime which seems laughably inadequate to anyone familiar with internet technology. All sections of the Bill have been heavily criticised by external experts and a small number of committed MPs, but the legislation has passed through its Commons scrutiny with its central provisions intact.
Part I gives the Home Secretary the power to issue a warrant requiring ISPs to intercept the communications of one or more of their subscribers. The problem is that the internet is not like the telephone system - where it is technically feasible to tap into a particular individual's communications link. In order to monitor a person's internet traffic, you have to tap into all the traffic running through his or her ISP. As a result, the expectation is that Part I of the Bill will be implemented using so-called 'passive monitoring': ISPs will be required to install a 'black box' which will monitor all their data traffic and pass it to the GTAC centre.
The news that henceforth all UK internet traffic will find its way to MI5 does not seem to have yet reached MPs, most of whom don't understand the technology and assume that the Home Office must know what it is doing. Defenders of the Bill point out that MI5 can only legally read the content of communications for which specific warrants exist, which is true. But they fail to notice that the Bill affords no such protection to the pattern of one's internet connections.
In other words, while MI5 may need a warrant actually to read your email, many other people will have essentially unregulated access to logs of the websites you access, the pages you download, the addresses of those with whom you exchange email, the discussion groups to which you belong and the chat rooms you frequent - in short, a comprehensive record of what you do online and with whom. It will be interesting to see how this squares with the European Convention's requirements about privacy.
It is Part III of the Bill, however, which is most likely to contravene the Convention. Section 46 gives the Home Secretary the power to compel the surrender of keys used to encrypt communications data. Failure to comply carries a prison sentence of two years. If someone cannot comply because they have lost or forgotten the key then they have to prove that to the satisfaction of a court. In other words, the burden of proof is shifted from the prosecution to the defence - one is presumed guilty until proved innocent. And how do you prove that you have forgotten something?
Even more oppressive is the Bill's creation of a secondary offence - revealing that you have been required to supply, or supplied, a decryption key - which carries an even stiffer penalty. Under the terms of the Bill, for example, the police could arrive at 4am and demand that you produce such a key. If you were unable to comply and were taken in for questioning, it would be a criminal offence punishable by five years' imprisonment to explain to your family why you were being dragged off.
Civil liberties campaigners are predictably opposed to the RIP Bill. But it is also widely opposed by the business community. Even Professor Norton, the architect of the Government's e-commerce legislation, describes the proposals as 'a classic own goal' that will undermine the aim of making Britain a centre for e-commerce. Encryption is central to e-business, and many companies have contractual agreements with clients for whom they hold cryptographic keys. Under the RIP Bill they would be banned from revealing that they had surrendered a key and thereby compromised the client's security.
'This is a clear case,' says Norton, 'of the futility of government treating internet policy as a national issue when what is needed is international agreement. A UK firm which handed over the key of a multinational client would be vulnerable to a compensation claim in an overseas court for compromising that client's global security. US businesses are not happy about that liability and will opt to work in countries like Ireland.'
The most astonishing thing about Straw's pre-emptive strike on civil liberties and e-commerce is that, to date, there has been almost no public discussion of it. The Ministers driving his Bill through Parliament concede that the powers they seek are sweeping, but argue that they can be trusted to apply them reasonably and that in any case the powers are commensurate with the threat from online criminals, terrorists, paedophiles and pornographers. In the absence of proper safeguards, the first argument is absurd.
As far as the second is concerned, nobody has yet produced any convincing empirical evidence that the supposed threats are more than the fantasies of security services and hysterical projections of some newspapers. The internet undoubtedly provides a conduit for criminal conversations and porno graphic transactions. But then so does the telephone system and the Royal Mail, and yet nobody proposes tapping every phone in the land or scanning every letter. A terrifying erosion in our liberties is being planned, yet the threat is largely ignored.
Could it be that this collective passivity is because, for most citizens, the liberties that are being eroded lie in the future rather than the present? Most people do not currently encrypt their email, even though an unencrypted email is as vulnerable to snooping as an ordinary postcard. But in five years' encryption will have become a necessity.
Human nature being what it is, people will lose or forget their decryption keys - and some will find themselves attempting to convince a judge that they are not paedophiles feigning amnesia to qualify for a shorter sentence. Will they then remember Burke's warning that for evil to triumph it is necessary only for good men to do nothing? And will they wonder why they had not been more alarmed on the morning of 5 October 2000?
Most countries impose no restrictions on the use of encryption by their citizens. The exceptions tend to be authoritarian regimes such as those in Russia and China.
IRELAND: New e-commerce Bill makes it illegal for government to access commercial cryptographic keys.
FRANCE: The government has recently announced a new policy of totally relaxing controls on domestic use of encryption.
US: No domestic controls on use of cryptography, though Washington looks enviously at the UK RIP bill.
GERMANY: Has long been the European leader in opposing restrictions on citizens' use of encryption.
John Naughton (email@example.com) is an academic and the (London) Observer's Internet columnist.
© Copyright Guardian Media Group plc. 2000
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