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.
5 November 2015
I laughed out loud when I saw the calls from Andrew Parker, the head of MI5, for a mature debate on surveillance, in particular in relation to the draft investigatory Powers Bill (via Paul Bernal). My reading of the IP Bill is that it will result in, and perhaps intends, closing for ever the democratic debate about what constitutes acceptable state surveillance.
Gagging orders for targeted warrants: interception, equipment interference and communications data. S.43(1-7) impose a gag order in relation to the existence or any other aspects of an interception warrant, except for seeking legal advice. S.44(2)(a) makes it an offense to disclose anything about such a warrant, with a penalty of up to 12 months in jail and / or a fine. Similar provisions exist for “equipment interference”: S.102 makes it an offense for a telecommunication provider disclose anything about a warrant for hacking someone! Similar secrecy provisions apply to notices for handling out communication data (S.66).
These prohibitions may make sense in the context of operational needs for secrecy — such as during investigations. But what about when the warrant expires? What about either interception or equipment interference against subjects, organizations, or others that does not lead to any criminal or other conviction — namely against innocent people and associations? What is the imperative for keeping those secret? The imperative is simply to keep the debate about the surveillance capabilities, the uses of warrants, the selection of targets for surveillance, the prevalence of surveillance, and the techniques used and their proportionality secret — namely to avoid even the possibility of a mature debate in the future.
Gagging orders for retention notices. The previous warrants and notices clearly applied, at least for some time, to operations against specific targets. More interestingly, secrecy is also required when it comes to issued retention notices: S.77, makes disclosing such a notice a civil offence.
What this means is that the secretary of state may issue notices for operators to keep some communication data, but these operators are not allowed to tell anyone! This despite the significant public policy interest on the matter, that has in fact led to numerous challenges against such policies, and the eventual legal challenge of the EU Data Retention Regulation in the European Court of Justice. Of course this may lead to nonsensical outcomes: I could build a service, and deploy it in the UK or elsewhere (remember extra-territoriality S.79) only to be told that a retention notice exists covering my service — which was previously unknown to me due to secrecy, and that I cannot discuss or challenge politically openly due to the same secrecy.
This is in contrast with, for example, the Data Retention directive that provided a strict list of services and categories of data that were to be retained, in the text of the directive — not in secret. Even those provisions were found to not be proportional, so go figure what the gagging order in the IP Bill is. This provision clearly aims to make the IP Bill the last, if any, political discussion on retention, its proportionality, necessity or legitimacy in a democratic society. Once it becomes law, the gagging orders will hide what is retained at all.
Gagging orders for bulk interception and interference. Given the audacity of enabling bulk interception and bulk interference, while maintaining the IP Bill is not about mass surveillance, it is no surprise that gagging orders are also imposed on those asked to facilitate it: S.120(b) states that disclosures should not be made about the existence or facilitation of bulk interception, and S.148 prohibits disclosure of a bulk interference warrant — making it illegal to even discuss that mass hacking might be taking place! Those apply to overseas operators too.
Gagging orders for bulk communications data collection. Bulk acquisition follows the pattern, and a special offence is created in relation to disclosing anything about to it in S.133. Again, this goes way beyond protecting specific operation, since the acquisition is performed in bulk, and cannot betray any specifics. The secrecy order protects the capability to access in bulk certain categories of communication data, which in effect means shielding it from any proper scrutiny as related to its necessity, or appropriateness in the future,or any debate on that matter.
Gagging orders in relation to implementing surveillance capabilities & back doors. Finally, gagging orders apply to “technical capability notices” (as well as “national security notices” — the joker card in this legislation allowing to impose any requirement at all). In S.190(8) specified that such notices should not be disclosed.
This should put to rest any romantics — and there are few, but some, in the midst of computer security and cryptography experts — that think that we will have some kind of debate about the type of back doors; or that we can build privacy-friendly back doors; or that somehow when a new technology presents itself we will have a debate about how strong the privacy it provides should. There will be none of this: secret backdoor notices (I mean “technical capability notices”) will be issued, and enterprising geek that wants to open a debate about them will either know nothing about them, or be breaking the law. There will be no debate about what kind of back doors, of when they should be used — all will be happening in total secrecy.
Keeping surveillance evidence out of courts, and the defense’s hands. S.42(1-4) of the Draft IP Bill prevents anyone involved in interception from ever mentioning it took place as part of any legal proceedings. Note that this section is absolute: it does not have exceptions, for example in relation to the public interest: such as the ability to discuss the benefit or downsides of part interception activities; no exception for talking about this to MPs, or other democratic representatives; or even to exculpate anyone who otherwise would be wrongfully found guilty. Similar provisions (S.120(a)) keep the fruits of bulk interception out of courts.
Secret hearings in secret tribunals and commissioners. There exist provisions from RIPA for secret hearings and appeals in front of secret tribunals. There are also provisions for the commissioners looking at what is doing on. These are so weak, so removed from democratic practice, and so alien to concepts of the rule of law and democratic rule — let alone nonsensical — that I am not going to discuss them further.
In conclusion. For sure the Investigatory Powers Bill future proofs surveillance capabilities: mostly against future democratic scrutiny. Once it becomes law, its “technology” neutral provision can be applied to intercept, collect, back door, hack, even in bulk, while making it illegal to even discover, and as a result discuss or make policy about, interferences with private life the state is up to. The gagging provisions are a clear example that calls for a mature debate around surveillance are mere rhetoric, the securocrats want one last discussion before making any discussion about surveillance simply impossible.