UK Draft IP Bill: Who is a telecommunications operator?

7 November 2015

The recently unveiled UK Draft IP Bill imposes all sorts of obligations on telecommunications operators, including obligations to collaborate with warrants to facilitate surveillance, hack, notices to retain data, handing it out in bulk, and even obligations to implement bag doors, as well as gagging orders. Despite their centrality, it is surprisingly difficult to clearly understand who exactly is a “telecommunication operator”, and therefore on whom these obligations apply.

The scope of the legislation would be vastly different if it only applies to traditional telecommunication companies that control physical infrastructure, such as BT or cable companies, versus more widely to any internet service that allows messaging in any form, such as google chat, facebook, whatsapp and tinder (or any other dating app). What if it also applied to general purpose software and hardware companies, or free software projects? As ever, it is unwise to rely on the explanatory notes, or the announcements of politicians to elucidate this question — they have no legal validity. So I turn to the legislation itself, to try to get some insights.

S.193 provides definitions, and specifically S.193(8) to S.193(14) defines telecommunication operators, public and private, telecommunication services and finally telecommunication systems. We will take them in turn. I am always surprised how obscure, subtle, and wide-ranging, such definitions are.

S.193(10) Defines a telecommunications operator as being one of two things: they either offer a telecommunications “service” to persons in the UK; or they control or provide a telecommunication “system” which is at least in part in the UK, or controlled from the UK. Note the choice of subtle difference between a “service” and a “system“, as well as “offer“, “provide” versus “control“.

S.193(11) defined what a telecommunications service is: it is anything that provides, accesses, or facilitates the use of a telecommunication system. Helpfully, it points out that a service may be using a system provided by someone else: presumably this is intended to label as operators those providing services over infrastructure, logical or physical, provided by others; or software and hardware provided by others.

There is a further clarification in S.193(12): something is a telecommunications service if it is involved in the facilitation of the creation, management or storage of communications transmitted by a telecommunication system. Particularly troubling is the mention of “creation”: it might be used to argue that client side applications do facilitate the creation of communications (and their storage), and therefore are a telecommunication service. Their provision thus makes potential creators of software and apps, and for sure those providing web-mail and instant messaging services, telecommunication operators.

Finally, S.193(13) defines as a telecommunications system a system that in any way transmits communications using electric or electromagnetic energy including the communication apparatus (machinery) that is used to do this. The definition is very wide ranging, and includes all communications, except postal (which are dealt separately), and all telecommunication equipment in use.

I am not a lawyer (but neither are most MPs — only about 15% are legally trained).

My reading of the telecommunications operator definition is that it encompasses everyone that is somehow related to communications: their creation, management, storage, transmissions, processing, routing, etc. In my view this covers internet services and phone apps that allow private messaging at least: social network, instant messaging applications, dating websites, on-line games, etc. Of course it also covers trivially traditional telephony, mobile or fixed, Internet Service Providers and cable providers.

It is less clear whether only messaging and internet services, or also suppliers or hardware and software, are covered by this definition. For example, one could argue that a software vendor “provides a telecommunications system (S.193(10)(b))”, if by system we mean the software used to facilitate transmissions. In fact the definition of “system” includes the “apparatus comprised in it” (S.193(13)), namely software and hardware. Following that argument, software and hardware vendors of general computing equipment may be considered telecommunications operators — when their kit is used in the context of telecommunications. If I consider this argument reasonable, probably judges in secret courts, secretaries of state, and judicial commissioners may be convinced.

This ambiguity has far reaching consequences: if an enacted Investigatory Powers Bill, is interpreted to cover suppliers of communications software and hardware, then they may be coerced by notice to provide “interception capabilities” — government backdoors — into their software and hardware and further facilitate “interference warrants” — hacking —  against the customers of their products. Operating system manufacturers, and even processor manufacturers may not be safe from this legislation which will discredit any assertion they make about the security of their products in an international market.


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