comms data bill index submission 22 august 12

7/31/2019 Comms Data Bill Index Submission 22 August 12

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Written Evidence to the Joint Committee on the Draft Communications Data Bill

Submitted by Index on Censorship

1. Introduction

The Communications Data Bill as currently drafted would directly undermine both the right toprivacy and the right to freedom of expression by making surveillance and storage of UKcitizens communications data the norm. These rights are enshrined in Articles 8 and 10 of theHuman Rights Act 1998 and in the European Convention on Human Rights and in the UniversalDeclaration of Human Rights. The UNDR explicitly states that: No one shall be subjected toarbitrary interference with his privacy, family, home or correspondence.

Collection and filtering of communications data across the whole British population would notonly represent an unacceptable breach of privacy but would also undermine freedom ofexpression. Index on Censorshipas one of the worlds leading freedom of expressionorganisations has monitored censorship and surveillance around the world for forty years. Thegoals of widespread monitoring, information-collection and storage, and surveillance of a whole

population are aims that are normally found only in authoritarian and totalitarian states, such asIran and China, not in democracies who are bound, through their accession to the human rightsconventions mentioned above, and through their commitments to democracy and freedom, onlyto limit free expression where it is necessary on clear grounds of national security and publicorder and to impose any limits in a proportionate and limited manner.

Population-wide collection and filtering of communications data is neither necessary norproportionate. Monitoring and surveillance of this kind impacts directly and in a chilling manneron freedom of expression, inhibiting and restricting individuals in how they receive, share andimpart information and encouraging self-censorship. No other democracy has gone as far as thegovernment proposes in this bill that the UK should go. As well as representing a majorundermining of privacy and freedom of expression in the UK, this bill, if it became law, would be

a direct encouragement and justification for authoritarian regimes to monitor in detail their entirepopulations online as well as off. It would make it difficult, if not impossible, for the UK tochallenge these regimes on their censorship and surveillance of their populations. It is alsoremarkable that, in a memorandum attached to the draft bill on the compatibility of the bill withthe European Convention on Human Rights, the government sees fit to focus only on the rightto privacy and makes no mention of the potentially chilling and damaging impacts of the bill onfreedom of expression.

The declared purpose of this bill is to tackle crime and to ensure national security. This type ofin-depth monitoring of the entire population has at no point before been used or introduced asan appropriate crime-prevention or security-promoting tool in the UK. It would represent areversal of the presumption of innocence and an unwarranted intrusion into the privacy of the

British population.

Furthermore, the fact that new technology makes such population-wide data collection, filteringand monitoring possible is not a justification for using the technology in that manner. Such datacollection would represent a major step-change in the amount of information available onindividual citizens and is not, as has been claimed, simply a step to ensure information alreadyavailable offline is also available from online sources. The distinction between subscriber, useand traffic data and data content is also a misleading one. The range of data that would becollected as communications datawould enable a detailed picture of individuals habits,


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activities, interests, and opinions to be built up going well beyond any population-wideaccumulation of data that has happened until now in the UK.

2. Rights of the individualReversing the presumption of innocence:The bill proposes the storage of vast swathes of

data, to be used by authorities as and when relevant. This is justified by the suggestion, forexample, that police investigating crimes will need to be able to access communications sent bycriminals when investigating crimes retrospectively. However, in its population-wide scope, itcarries an alarming undercurrent, enshrining the assumption that because some of us may becriminals, all should be treated as criminals. This is a reversal of the presumption of innocenceand is at odds with British ideas on democracy, pitting as it does the state against the citizen.

Undermining rights:Privacy has long been considered an essential element of the right tofreedom of expression. It is self-evident that monitoring of speech or written communication isliable to chill free expression. This bill is not consistent with the UKs commitment to humanrights, including the fundamental rights to privacy and to freedom of expression. This bill wouldrather establish the type of relationship between governments and individuals that Index on

Censorship has witnessed in its work defending free expression for dissidents from the darkdays of the Soviet bloc to our work today in countries such as Azerbaijan and Belarus.

The mass retention of individual data through the Data Retention Directive has been found to beunconstitutional by courts in Germany, Romania and the Czech Republic, and non-compliantwith Article 8 of the ECHR. As the Czech Supreme Court found:

One of the ECHRs basic requirements, developed by an interpretation of the condition of thelegal basis for government interference with private life, is the predictability and availability ofsuch a legal basis. The reason for this is the legitimate and logical requirement for individuals tobe acquainted in advance with the circumstances in which the State may, exceptionally, interferewith their private lives, so that they can adjust their behaviour in order to avoid such interference.The blanket nature of the retention of traffic and location data, however, limits, and evenexcludes, such a possibility.

The court noted that obligation to retain traffic and location data constituted a serious breach ofprivacy as it would virtually exclude the existence of uncontrolled and unmonitoredtelecommunications while the data couldbe used to determine the opinions, health status orsexual orientation of a person. This draft bill goes beyond the already too wide powers in theData Retention Directive and in RIPA.

This widespread data capture also goes against the spirit of UK national security legislation todate. In 1963, Lord Denning stated:

the Security Services are to be used for one purpose and one purpose only, the defence of

the Realm.Most people in this country would, I am sure wholeheartedly support this principle for it would beintolerable to us to have anything in the nature of a Gestapo or Secret Police to snoop into all thatwe doeven at the behest of a Minister or a Government department

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Undermining anonymity and whistle-blowing:Anonymity is also a key component ofindividual freedom of expression as necessary in democracies as in authoritarian states and

1Hugo Young and Cathy Massiter, 20/20 Vision: MI5's Official Secrets (C4 1985)


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an inability to express views or share information anonymously can chill free expression andeven put individuals at risk of harm. These points also apply to whistle-blowers speaking out onmatters of public interest. The law as it stands is not sufficient to protect whistle-blowers, thepublic interest defence in the Official Secrets Act was removed in 1989; there is no publicinterest defence in RIPA nor the Computer Misuse Act. Those speaking out to prevent crime, ormalfeasance in public office, need to be protected. The draft bill will make it difficult for

journalists to encourage whistle-blowers to speak out especially about the activities of stateagencies as these agencies will be able to build a picture of the behaviour of the journalistusing their phone records, email traffic, and location using mobile phone base-stationtriangulation or GPS. The chill on freedom of expression would be significant.

Exposing individuals to harm:Another concern is the possibility that data collected under thedraft Bill could be passed over to states which breach international human rights standards. Asimilar recent example of this happening was the handing over of sensitive information by thePolish and Lithuanian authorities which led to the prosecution of human rights defender (andNobel prize nominee) Ales Bialiatski who now languishes in a Belarusian jail. The state mayalso decide for politically expediency, or in the case of an emergency, to suspend or ignore itshuman rights obligations. In this instance, it is not inconceivable to imagine data captured by

universal collection to be handed over to governments that do not respect universal humanrights.

Even if the government and public authorities with access to the data collected handle it in asecure manner, the data will be at risk of being stolen, sold, deliberately hacked into not least byauthoritarian governments, and/or demanded by other governments as part of their law-enforcement activities. If the provisions of the bill for collecting data on non-UK residents goesahead, this will also open up the strong likelihood of agencies in other countries demandingaccess to that data in particular.

There are no balancing legislative actions that could take away the deep undermining of therights to privacy and free expression that the draft bill implies. Nor are there any serious

methods whereby individuals can seek redress against inappropriate accessing of theirindividual data.

3. TechnologyThe government claims that new legislation is needed to keep up with technologicaldevelopments but the range of data and the detailed picture of individuals views, habits, andactivities that can be built up from it goes well beyond existing practices. In fact, the new andextensive detail the technology can provide precisely represents a major new problem whichenables and encourages proposals such as those in this bill with their intrusive ability toundermine privacy and free expression. As Index on Censorship has pointed out, mobile phonetechnology can now pinpoint a persons location to within 2.5m, and large amounts of ourpersonal and private correspondence, communications and information-gathering and sharing

now take place online. Though the government insists it is only monitoring data traffic and notcontent, it is very easy to build up a picture of someones life with this data. It should beincumbent on the government, in the face of the intrusive powers of these new technologies andapplications, to actively support peoples privacy in their communications and to ensure theirright to free expression, rather than hasten their erosion.

The current bill reflects an elision of ease with necessity: we see, in the governmentsproposals, the ease with which comprehensive data can be retained being translated, falsely,into an imperative. A similar impulse lay behind the prime ministers frankly dangerous


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suggestion that social networks could be shut down during the riots of 2011. These issues arenot technological, but ethical and political. They are about human rights and about the essenceof our democracy.

4. Reach

There are two further issues of deep concern about the reach of the bill, in addition to the intentto capture data on the entire population. Firstly, the definition of data is very broad indeed, andsecondly, there is a lack of clarity on which authorities are allowed to access filtered data. Onthe issue of data the bill defines this as any communication via any communication network,including postal services. As explained above, the enormous range of activities thatcommunications data now reflect, means even data traffic details rather than data contentallows an in-depth picture to be built up of individuals in a deeply intrusive way. The bill as itstands also does not identify exactly who among public authorities will be able to accessfiltered data. The filtered data proposed by the bill is also problematic, leaving the door open forthe collection of vast amounts of arbitrary data, fishing for data, and failing to address thecrossover between data and content. The suggestion that HMRC may be one of the coreauthorities able to access data also suggests a remit that will rapidly go well beyond any limited,

proportionate activities that may be necessary for focused criminal or security investigations.

The government should limit and strictly define what kind of data is accessible, for whatpurpose, and to whom. Such limited data should only be collected on a small proportion of thepopulation not on the entire population.

5. Democratic oversightThere is currently no judicial oversight proposed for the processes sanctioned in the bill. It isvital that there is not unlimited access by authorities who are on designated access lists. Giventhe intrusive nature of the data collected, the process must be subject to judicial oversight in allcases for all authorities.

It is of deep concern that the bill concentrates immense and ill-defined powers in the hands ofthe Home Secretary. As the bill is currently written, the Home Secretary could enormously andrapidly extend the reach of the bill, without either consultation or transparency. The HomeOffices memorandum on delegated powers states:

The clause 1 power is required in order to provide the flexibility necessary to ensure the availability ofcommunications data against the backdrop of a continuously evolving communications environment.Communications services are volatile and change rapidly in response to commercial drivers and othertechnological innovations. Services are increasingly delivered by a variety of commercial and technicalrelationships which means that communications data is fragmented and dispersed amongst numerouscompanies. No single solution or implementation strategy will therefore be capable of responding to allfuture technological developments or market innovations, or of satisfying the range of operationalrequirements of the law enforcement and intelligence agencies and other public authorities. Anysustainable solution will need to be capable of accommodating a range of different implementationmodels over time in order to ensure the availability of communications data.

It is unacceptable to instil such flexibility into a law which is about garnering private informationfrom peoples everyday lives. The potential for mission creep or plain abuse of this power is alltoo evident. Even as the bill stands now, the Home Secretary would have the power to issueorders to CSPs in secret.


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Appropriate democratic oversight means transparency not secrecy must be enshrined in anysuch bill. Furthermore, any adjustment in the intent or scope of the powers granted the HomeSecretary in this bill must be subject to democratic parliamentary scrutiny and oversight.

6. Setting a precedentAs our lives are ever more reliant on digital network communication, it has become easier and

easier to store data and carry out surveillance. The UK must be conscious of the internationalexample it sets as a democratic country. Enabling this bill, giving enormous snooping powers togovernment without judicial and parliamentary oversight, would undermine the UKs ability tocriticise less- or un-democratic regimes. It would embolden those regimes and be used as

justification in their own surveillance and censorship of their citizens. Bad regulations are oftencopied, the UKs Regulation of Investigatory Powers Act (RIPA) 2000 which has led to over 3million authorisations was similar to Russias controversial SORM legislation of the same year.In current international debates about internet governance, we also see authoritarian states atthe forefront of demands for top-down regulation of the internet that their motivations aredriven by control and censorship is clear. The decisions the UK Parliament takes on this bill willimpact on human rights both in the UK and beyond, not least in authoritarian states.

This evidence was written by Kirsty Hughes (CEO), Padraig Reidy (News editor) andMichael Harris (Head of Advocacy), Index on Censorship.

comms data bill index submission 22 august 12

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