Finally, a grown-up debate about communications surveillance
Twelve years after the Regulation of Investigatory Powers Act (RIPA) was passed by the UK Parliament, permitting the interception of communications without a judicial warrant and allowing the police to self-authorise access to communications metadata, some parts of this dangerous law are finally being properly scrutinised. This isn't an intentional review, but rather a by-product of a joint parliamentary committee's interrogation of the draft Communications Data Bill, the Home Office's latest scheme for mass retention of communications and online activity in the UK. After hearing evidence from politicians, civil servants, industy and civil society about current surveillance practices in Britain, the Joint Committee were particularly damning about the RIPA regime in their final report, published yesterday. They wrote:
The language of RIPA is out of date and should not be used as the basis of new legislation. The Bill should be re-drafted with new definitions of communications data. The challenge will lie in creating definitions that will stand the test of time. There should be an urgent consultation with industry on changing the definitions and making them relevant to the year 2012."
In other words, back to the drawing board for the Home Office. We have welcomed many other aspects of the report, such as their forthright dismissal of the government's claims about costs and benefits as "fanciful and misleading", but we particularly applaud the Joint Committee's perspicacity in seeing that the Bill, predicated as it is on the definitions and assumptions of RIPA, is a house built on sand.
We've attempted to discuss this issue with the Home Office countless times. We attempted to discuss it with them in the late 1990s, before RIPA was signed into law. We tried again when the new Bill appeared on the horizon at the beginning of the year. Yet our requests for meetings were repeatedly rebuffed, and when we finally did pin the Home Office down, our concerns about encryption, jurisdictional issues and the challenges of separating traffic data from content were dismissed out of hand. Even when we relay industry concerns - concerns that are based on far greater technical expertise and experience than the government has ever managed to muster - the lack of interest is palpable. It seems the Home Office is too busy coming up with melodramatic case studies that ostensibly support the case for nationwide data retention and hurling wildly inappropriate accusations at anyone who dares to question its dubious logic.
This behaviour produces immature, ill-informed policy debate and, ultimately, bad policy. The Joint Parliamentary Committee chastised the Home Office for its failure to undertake a proper consultation process on the Bill, and both the Joint Committee and the Intelligence and Security Committee have called for a new conversation about the draft Communications Data Bill, and by extension, about RIPA. We are eager to start a more rational conversation. Over the past few months, we have been consulting with advisors and experts in communications surveillance across the world, including stakeholders from academia, civil society, industry and the legal community. We have drafted a set of principles for lawful access to communications (currently in draft form and open to public consultation) in an effort to reach international agreement on how law enforcement can obtain sufficient access to prevent and solve crime without unwarranted breaches of the right to privacy.
We are ready to discuss what it means to monitor and intercept communications today. What qualifies as 'communications metadata'? How can we justify policies of nationwide data retention when the communications infrastructure is global? How can we approach targeted communications surveillance when so much information is available? What does it mean for surveillance, and for society, that the most intimate details of our personal lives are readily available in electronic form?
We are ready and willing to discuss and resolve these questions. Let's see if the Home Office is capable of rising to the challenge.