Nick Pickles of BigBrotherWatch has done a good job of analysis of the letter signed by Home Secretary Theresa May and Justice Secretary Kenneth Clarke, sent via the Tory Whips to Conservative MPs, regarding the Communications Capability Development Programme enhanced snooping plans.
Minister's letter fails to answer key questions
The text of the letter is published by the ConservativeHome blog:
It really is shocking how little detailed grasp of the technological and social impact Government Ministers and MPs seem to have.
The Special Political Advisors / spin doctors who draughted this letter seem to have deliberately omitted key features of the both the Communications Data Development Programme and of the Green Paper on Justice in this briefing letter to MPs.
HOUSE OF COMMONS
4 April 2012
There has been a lot of press coverage in recent days about two of our key policies to maximise public protection: on communications data capability and the Justice and Security Green Paper. We are committed to maintaining national security and protecting the public in the face of changing circumstances whilst continuing to honour our commitment to protect civil liberties.
1. Communications data capability
The need to act
Communications data - information such as who called whom and at what time - is vital to law enforcement, especially when dealing with organised crime gangs, paedophile rings and terrorist groups. It has played a role in every major Security Service counter-terrorism operation and in 95 per cent of all serious organised crime investigations. Communications data can and is regularly used by the Crown Prosecution Service as evidence in court.
But communications technology is changing fast, and criminals and terrorists are increasingly moving away from landline and mobile telephones to communications on the internet, including voice over internet services, like Skype, and instant messaging services. Data from these technologies is not as accessible as data from older communications systems which means the police and Security Service are finding it increasingly hard to investigate very serious criminality and terrorism. We estimate that we are now only able to access some 75% of the total communications data generated in this country, compared with 90% in 2006. Given the pace of technological change, the rate of degradation could increase, making our future capability very uncertain.
We estimate that we are now only able to access some 75% of the total communications data generated in this country, compared with 90% in 2006.
Politicians may be easily fooled by statistics, but we are not.
Theresa May and the Home Office need to publish the actual evidence and assumptions on which they have based these figures.
One place where these figures should have been available from, but they are not, is from the censored Annual Report of the Interception of Communications Commissioner.
That is why, in the Government's Strategic Defence and Security Review, published in 2010, we said we would "introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain data and to intercept communications within the appropriate legal framework."
We therefore propose to require internet companies to collect and store certain additional information, like who an individual has contacted and when, which they may not collect at present. The information will show the context - but not the content - of communications. So we will have for internet-based communications what we already have for mobile and landline telephone calls.
It is simply not technologically possible to obtain the "certain additional information, like who an individual has contacted and when" from social networking websites like Facebook or Twitter, without Intercepting the Content of these web based services
Safeguarding civil liberties
When we published the Defence and Security Review, we also made clear that we would "put in place the necessary regulations and safeguards to ensure that our response to this technology is compatible with the Government's approach to information storage and civil liberties." In seeking to ensure our law enforcement agencies continue to retain capabilities to protect us from harm, civil liberties will be respected and protected.
The data will be stored by the industry to enhanced standards which we shall set and which will be overseen by the Information Commissioner. The data will be available only to designated senior officers, on a case-by-case basis, authorised under the Regulation of Investigatory Powers Act (RIPA), and the process will be overseen by the Interception of Communications Commissioner. It will be available only if it is necessary and proportionate to a criminal investigation.
If sufficiently "juicy" or "newsworthy", such material has been handed over for free or sold to politically favoured media journalists or sold corruptly to private investigators / information traders , many of whom are former police or intelligence agency employees.
It is also sent, without any effective safeguards whatsoever, to foreign governments.
The majority of the data will be retrospective not real time (an exception might be the tracking of a communications device during a terrorist operation or kidnapping) and will be used as part of an investigation to identify key facts, including as evidence in courts.The police and other agencies will have no new powers or capabilities to intercept and read emails or telephone calls and existing arrangements for interception will not be changed. We envisage no increase in the amount of interception as a result of this legislation.
So what ? The new proposals have nothing to do with the existing system of email and phone interception.
The new proposals will try to extend this existing flawed RIPA regime to social media like FaceBook and Twitter, to Voice over IP telephony, video conferencing and chat like Skype orthe various Instant Messaging protocols, to search engine searches like Google and to Peer to Peer filesharing like Bittorrent
The impression being given is that this snooping will only be available for terrorism or serious crime investigations, but the exisiting RIPA allows Communications Data to be grabbed for much less serious alleged crimes as well.
Differences with Labour's proposals
Despite what has been claimed by some, this is very different to the scheme proposed by the last government. They wanted to build a Big Brother database with all communications data held in one place by government. Under our proposals, there will be no government database and the data recorded will be strictly limited and regulated and will be destroyed after a year.
The data will not be stored by the police or government but by communications service providers who already store some of this data for their own business purposes and under the EU Data Retention Directive. They will be paid by government for this service. But the costs incurred are a fraction of those we would face if we had to try to find an alternative way of developing the very significant evidence that this data provides us; indeed there is no like-for-like alternative.
Labour's original proposals were for a centralised database, which they then changed to a distributed database held by the Communications Service Providers, after their Intercept Modernisation Programme had been ridiculed by everyone who was expected to make it work in practice.
The Conservative / Liberal Democrat Government's vague plans for Communications Data Development programme sound identical in practice to those discredited Labour fantasies.
We have already made changes to limit who can access communications, and how they can access it, and we intend to make further changes in future. Local authorities will now have to get a magistrate's approval to see communications data and they will not be permitted to see more than simple data, such as subscriber to a mobile phone.
There are some clauses in the so called Protection of Freedoms Bill, which is still not on the statute books, over a year after it was introduced.
It is therefore a lie to claim that they have "already" done anything or that "Local authorities will now have to get a magistrate's approval" - these legal powers have not yet been been passed into law, let alone commenced !
We intend to ensure that all departments who can get access to any data will only be able to do so under one legal framework, set out in RIPA.
The previous Labour government lied about doing this as well.
Instead they let the arrogant Department for Social Security / Department for Work and Pensions abuse their "legacy" powers i.e. Section 109B of the Social Security Administration Act 1992 (as amended by the Social Security Fraud Act 2001) passed after RIPA, to grab Communications Data for free, without having to pay the nominal processing fee of around £15 to £25 pounds for a targeted Name and Address Subscriber request form British Telecom etc. and without having to undergo any RIPA training or to submit to even the cursory RIPA Interception of Communications Commissioner oversight scheme.
The importance of forcing junior bureaucrats to actually get their bosses and accounts departments to sanction the auditable expenditure of public money, when they make such Communications Data snooping requests cannot be overemphasised. It is effectively the only mechanism which prevents excessive demands for "all Communications Data" in a certain geographic area or during a certain time period from being demanded, over and over again by inexperienced or lazy or corrupt investigators.
As soon as data is slurped "in bulk, in real time" into secret, unaccountable databases for "data mining", then the risks of corruption, abuse and false positives ruining the lives of innocent people, at great expense, without actually catching any more criminals as a result, increases dramatically.
Access to communications data will be overseen by the Interception of Communications Commissioner. So this is not, as some have tried to suggest, a transfer of power from the judiciary to the state.
There is currently no judicial involvement at all (the secretive Interception of Communications Commissioner and the Intelligence Services Commissioner are both retired senior Judges, but they do not approve or decline any Interception warrants (rubber stamped by a Secretary of State or an anonymous senior civil servant)
The police and Security Service will not be able to intercept the content of calls and emails, except as now when it is necessary and proportionate as part of an investigation relating to serious crime or national security, and only when they have obtained a warrant signed by a Secretary of State.
A balanced approach
For the first time in more than a decade, we have a government that respects civil liberties.
The previous Labour control freak government used to claim that they also "respected civil liberties", but they literally used Orwellian newspeak to redefine the meaning of such words.
It is up to the Coalition government to prove through action, not just words, that they are really different from their Labour predecessors.
We have abolished ID cards, cut back government databases and limited pre-charge detention. But we must not allow the internet to become an unpoliced space, with criminals
free to go about their business with abandon.
The Government's Strategic Defence and Security Review - in which we announced our intention to update communications data capability in October 2010 - can be found here.
Green Paper on Justice and Security
The Government also faces a problem with challenges to executive decisions, for example when it refuses British citizenship or excludes from the UK an individual believed to be involved in activities which threaten national security. These decisions are made on the basis of sensitive intelligence. In judicial reviews of such decisions, again, there is no statutory basis for closed material procedures to be available to the court. This means the Government is unable to fight the case and may have to allow British citizenship to an individual believed to be engaged in terrorism-related activity, for example, because the courts have no secure forum to handle the appeal process.
How many times has such a refusal of British citizenship ever happened ?
There is no problem if there is some actual prima facie hard evidence, of actual terrorist activity against British interests.
If all there is is "intelligence" consisting of unfounded rumours, gossip, anonymous denunciations, false positive identifications etc. then this should rightly be ignored by a Court , just like Hearsay "evidence" for exactly the same common sense reasons.
The recent MI5 investigation into Ekaterina Zatuliveter, showed how incompetent and superficial such "investigations" can be.
That case also shows that there already is a "secure forum to handle the appeal process" "national security" and Immigration and British citizenship executive decisions - the Special Immigrations Appeals Commission (SIAC)
These examples illustrate the compelling case for changing the current rules so that these sorts of cases can be properly heard in a Closed Material Proceeding (CMP) by a judge, where a judgment can be reached on the basis of all
The circumstances in which a CMP would be triggered would be exceptional and rare. They will not apply at all to criminal proceedings and would only apply in compensation cases, or other civil cases based on highly sensitive intelligence material.
The proposals in the Green paper also attempt to "nobble" the Inquests into deaths caused by the Police or by UK or Foreign Military forces, especially by USA "friendly fire".
The Daily Mail is claiming today, via some anonymous Whitehall briefing, that this aspect of the Green Paper, which is not mentioned in this letter, may perhaps be dropped:
Climbdown on secret inquests: Victory for the Mail's open justice campaign
Alongside these proposals to extend judicial scrutiny over Government actions, we also want to give Parliament greater powers of scrutiny by increasing the status, remit and powers of the Intelligence and Security Committee. One option in the Green Paper is for the ISC to be made a statutory Committee of Parliament, to allow it to hold public evidence essions and to give it the power to require information from the security and intelligence agencies.
Spy Blog has been following the inadequate scrutiny provided by the Intelligence and Security Committee for years.
The overall effect is that the Security Service will be more accountable to Parliament and to the courts than at present and that more sensitive evidence will be considered by courts than is possible now.
The Green Paper can be found here.
We will listen to those who have made suggestions as we develop our plans. If you require any more information, please do get in touch with our PPSs Edward Timpson MP and Ben Wallace MP.
Theresa May Kenneth Clarke
Where is the important topic of Intercept as Evidence for use by either the prosecution or defence in Court (currently forbidden by the Regulation of Investigatory Powers Act 2000 section 17 exclusion of matters from legal proceedings), which is entirely relevant to both the CCDP and CMP proposals ?