A brief commentary on the “Data Retention and Investigatory Powers Bill” (2014)

15 July 2014

One of the rare delights of living and working as a security and privacy researcher in the UK is the bi-yearly schedule of surveillance legislation. Despite being often defeated, like the Phoenix, they only spring back to life at the slightest opportunity. This time round is no different: the PM has announced that secret all party negotiations reached consensus on an emergency bill enabling data retention (after it was deemed illiberal at a European level). It is meant to complete its journey through parliament this week, making an analysis all the more pressing.

First of all, it is important to appreciate that the bill fills the gap left by the traffic data retention directive’s (Directive 2006/24/EC) demise, when it was ruled invalid by the Court of Justice of the European Union. In theory, it should enable the same regime of data retention to continue without addressing in the slightest the civil liberties concerns that lead to the demise of the directive. There is however a problem: traffic data retention makes sense if it is widely implemented. There is no point in services in the UK retaining data, if US services or German services do not — the “bad guys” or anyone who values their privacy, would simply move their operations there.

Partly to deal with the possible lack of data retention abroad, the bill has provisions for the extraterritorial application of some powers, to force retention of interception of traffic. Which means that if you have some presence in the UK you may be asked nicely to retain data or provide wiretaps to UK law-enforcement or spooks. In fact even if you do not you may be asked anyways, and in extremis a public notice may be sufficient to force you to retain certain types of data. It is absolutely not clear to me what this means for foreign providers or technology companies.

The bill gives wide powers to the secretary of state to ask operators to retain any “relevant communications” data he/she wishes — where “relevant” points to the types of data mentioned in the Data Retention Directive (2009). They may impose specific conditions, and also decide to compensate operators for their trouble. One key limitation is that the retention period should not exceed 12 months.

For a blast from the past, a quick reminder of how “communications data” is defined in RIPA — which this bill piggy-backs on:

(4) In this Chapter “communications data” means any of the following—

(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;

(b) any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person—

(i) of any postal service or telecommunications service; or

(ii) in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system;

(c) any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.

Back in 2000 this definition was just about sane. At the time you could have email (content = body, comms = headers, in relation = subscriber information) or web requests to public resources, or IRC or usenet — none of which had much data on users. Today, what exactly is meant by category (c) “held or obtained, in relation to persons to whom he provides the service” is rather all encompassing. I am told this means “subscriber information”, ie. the credit card that pays for the email account. But, why not other data that is not explicitly the content of communications? What about your full facebook profile? It is after all the equivalent of “subscriber data”? Why not your OK Cupid profile, with the answers to all questions about your kinky preferences? They are input into a form like other subscriber data, and there is no question OK Cupid does provide a communication service. What is the limit? By perpetuating the fiction that contents of communications are protected by warrant, all other items are now susceptible game for access as communications data.

An interesting detail is that the bill somewhat changes the definition of a telecommunication service to include any service facilitating messaging (communications), or involved in the in “creation, management, or storage of communications transmitted, or that may be transmitted”. I assume this includes relays like Tor, but also cloud storage services that may contain emails, webmail, facebook chat, on-line game chat and the like. Interestingly it also includes all their infrastructure providers, transit providers, storage providers, etc. If a notice comes their way, they will have to help intercept.

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