Surveillance* Needs a Status Update
“My government intends to bring forward measures to maintain the ability of the law enforcement* and intelligence agencies* to access vital communications data under strict safeguards* to protect the public, subject to scrutiny* of draft clauses.” — The Queen’s Speech, 2012
There, peeking out amongst the 19 bills announced during the Queen’s Speech a few days ago, was the worst kept secret in current discussions of legislative reform on the issue of intrusive* surveillance: also called the Draft Communications Data Bill.
Whilst the details of the bill are not yet complete, the idea is to allow competent institutions — the police and intelligence agencies, but also possibly other Whitehall departments and local Government, to have real-time access to internet communications meta-data. That is, knowledge of the existence rather than the content of our emails, Facebook messages, tweets, etc. This is presumably based on the proposition that knowing how pieces of communication collectively form networks can pay dividends for security, whilst also being less intrusive than prying* into their contents.
It is also called, by anyone who doesn’t like it, the “Snooper’s* Charter.” Privacy and civil liberty groups like Big Brother Watch and Liberty, and politicians like David Davis, have condemned the bill as illiberal, intrusive and indiscriminate*. The largest upswell of opposition has so far focussed on the fact that, if such surveillance is to be real-time, it cannot be subject to a prior warrant by either magistrate or minister. However, under the current law that governs this kind of intercept, the Regulation of Investigatory Powers Act 2000 (or RIPA), this kind of communications meta-data can already be collected for a wide number of reasons (say, the collection of tax), by a wide number of bodies (say, the Environment Agency) on the internal authorisation of a senior member of that agency. How this will change under the new bill is not clear, but it seems unlikely that the bill steps over a dark Orwellian threshold, as suggested by its critics.
Getting bogged down* in a debate about the difference between the existence and content of a message misses the point somewhat. Nearly everyone accepts that the government will sometimes need to access information intrusively. What they expect is that this is done in an accountable*, proportionate and necessary way. And this is the clincher*: RIPA, the body of law that is supposed to guarantee this, is 12 years old, and was drafted well before social media began to fundamentally change how we communicate with each other. From private Facebook messages to semi-public wall posts to public tweets, many different forms of social media interaction simply don’t “fit” into the structure of current law.
At its heart, RIPA has a spatial conception about what is public and private, and therefore what is intrusive or not. It is legally more intrusive to record a conversation in someone’s home than the same conversation in a public space. These ways of thinking about privacy cannot be readily applied to social media, and confusion often results. In 2010 a court in California exempted a defendant from turning over his “private” Facebook and Myspace messages whilst in the same year a court in New York delivered the opposite verdict. As social media becomes an increasingly important way that we communicate with each other (and also a significant subject of intelligence collection), it clearly makes sense for the government to adapt its capabilities to this new frontier lest it abdicate its most fundamental duty: to protect its citizens.
Earlier this month Demos* published #Intelligence. Written by myself, Demos’ Jamie Bartlett and the former Director of Government Communications Headquarters (GCHQ) Sir David Omand, it is a blueprint for the ethical and effective collection of social media intelligence (shorthand: SOCMINT*) by the state, in the interest of public security and safety. It is possible, we argue, for social media intelligence to both make a decisive contribution to public safety and security, and to do so in a way that is based on human rights and the associated principles of accountability, proportionality and necessity.
There are, broadly speaking, two types of social media intelligence. The first we call “non-intrusive open source.” A lot of information is freely available, in the public domain, and willingly put there by people. It is right that governments should be able to access this—in the same way companies or universities can.
But there is another type too. When the government begins to exercise the state-specific powers of breaking through people’s privacy settings to collect social media information to fulfil the state-specific responsibilities of security and safety, this is intrusive SOCMINT. It is this kind of collection which worries people, and needs to be based on clear rules. A framework that guarantees that the public is protected from the possible misuse or abuse of these powers must be animated by six principles:
1) There must be sufficient, sustainable* cause;
2) There must be integrity of motive;
3) The methods used must be proportionate and necessary;
4) There must be right authority, validated* by external oversight;
5) Recourse* to secret intelligence must be a last resort if more open sources can be used; and
6) There must be a reasonable prospect of success.
The furore over the current draft bill has shown no signs of dying down. Indeed, as further details flesh out the bones of this draft bill in the following weeks — especially cost, access, retention and use — my bet is the debate will become more polarised and intense. Now, more than ever, the government needs to lay out a clearly articulated strategy for how the harm of intrusive surveillance of social media (and the internet more broadly) can be recognised, balanced and managed. I hope the draft bill does just this.
Source: Prospect Magazine of May 22, 2012 by Carl Miller
* surveillance - Überwachung, Kontrolle
* law enforcement - Gesetzesvollzug
* intelligence agencies - Geheimdienste
* safeguards - Sicherheitsmaßnahmen
* scrutiny - Kontrolle, Untersuchung
* intrusive - auf-, zudringlich
* to pry into - in etw. hineinschnüffeln
* snooper - Schnüffler
* indiscriminate - willkürlich
* to be bogged down - nicht weiterkommen
* accountable - verantwortlich
* clincher - entscheidendes Argument
* Demos - Demos is a think-tank focused on power and politics. Our unique approach challenges the traditional, 'ivory tower' model of policymaking by giving a voice to people and communities. Website: http://www.demos.co.uk/
‘Open-source, non-intrusive SOCMINT’ which would not be used to identify individuals or as a means of criminal investigation and should not puncture the privacy wishes of any user. It can be conducted on a similar basis to non-state actors, such as universities and commercial companies. This might include such activity as openly crowd sourcing information through Twitter or Facebook to gain situational awareness in the event of public disorder or gauging general levels of community tension.
‘Intrusive or surveillance SOCMINT’ which is the exercise of state-specific powers of access intended to result in the identification of individuals and access to private information. This could range from collecting publicly available data about specific individuals to intercepting and reading personal communications. This access needs to be governed by an ethical and legal framework, which maintains an association between harm, privacy, authorisation, agency and cause, such as limits on the number of agencies permitted to undertake it depending on the degree of intrusion.
* validated - bestätigt
* sustainable - sustantiell
* recourse - Rückgriff
1. What are the aims of the new bill and why do opponents renounce them?
2. Why is the existing old law no longer sufficient for Britain?
3. What are the two types of social media intelligence mentioned in the text and which of the two is more controversial?
4. Critically comment on the six principles which are laid down at the end of the text in order to prevent misuse or abuse of the state's power in exercising the future law?
5. What is the author's view on the bill concerned? Substantiate your comment going into detail of his argumentation.