SCN: Brits

[Steve]

x-no-archive: yes

=======================

A Bill which is slipping through the House of Lords will allow MI5 
access to all our online communications, says John Naughton. It 
could mean we're all guilty until proven innocent. So why don't we 
care more?  

(London Observer)---When you wake on Thursday 5 October next, 
you will find yourself living in a different country. An ancient bulwark 
of English law - the principle that someone is presumed innocent 
until proven guilty - will have been overturned. And that is just for 
starters. From that date also the police and security services will 
enjoy sweeping powers to snoop on your email traffic and web use 
without let or hindrance from the Commissioner for Data Protection.  

Every UK internet service provider (ISP) will have to install a black 
box which monitors all the data-traffic passing through its 
computers, hard-wired to a special centre currently being installed in 
MI5's London headquarters. This new mass surveillance facility is 
called the Government Technical Assistance Centre (GTAC). Who 
said Jack Straw had no sense of humour?  

The Regulation of Investigatory Powers (RIP) Bill which is now 
before the Lords gives the Home Secretary powers of interception 
and surveillance which would be the envy of the most draconian 
regime. In addition to encroaching on civil liberties, the same Bill 
will also drive hordes of e-commerce companies from Britain to 
countries like Ireland where their encryption keys - extended pin 
numbers allowing users to decipher jumbled data - will be protected 
from government prying. An administration which complains 
continually about making Britain 'the most e-friendly country in the 
world' by 2002 is busily making sure that exactly the opposite 
happens.  

How has this extraordinary state of affairs come about? Is it another 
manifestation of the cock-up theory of history, or are there more 
sinister forces at work? The answer is a bit of both. For some time, it 
has been obvious to Ministers and civil servants that British law 
needed updating to cope with the internet. In an era when online 
trading becomes ubiquitous, for example, some way has to be found 
of making 'digital signatures' legally valid. Accordingly, a special 
Cabinet Office unit headed by Professor Jim Norton set to work to 
devise a new legislative framework for the emerging world of e-
commerce and online communications. The main result of his labour 
was the Electronic Commerce Bill.  

As that Bill went through its Parliamentary hoops, it became clear 
that some parts of it - mainly the sections dealing with data 
encryption, interception and surveillance - were so deeply flawed 
that they threatened to sink the Bill. Given the Government's desire 
to make headway on the e-commerce front, the problematic sections 
were eventually jettisoned and the Electronic Commerce Bill 
became law in 1999.  

It was a smart decision, but it left unresolved the problem of what to 
do about the encryption stuff. The DTI, smarting from its bruising at 
the hands of the computer scientists who had comprehensively 
shredded the original encryption proposals, wanted nothing more to 
do with it. Accordingly the poisoned chalice passed to the Home 
Office, which knows little of business and even less about the 
internet, but is endlessly attentive to the needs of the police, the 
security services and the Byzantine imperatives of official secrecy. 
The RIP Bill is the fruit of that secretive bureaucratic milieu.  

The official rationale for the legislation is that it is required to bring 
UK law into conformance with the European Convention on Human 
Rights. In the end, this will have to be tested in the courts, but 
Straw's confidence is not shared by the Commons Trade & Industry 
Select Committee which last October recommended that the 
Government publish a detailed analysis to substantiate its 
confidence that the Bill does not contravene the Convention. This 
the Government has so far declined to do.  

The Bill has four main parts. The first deals with the interception of 
communications. the second covers 'surveillance and covert human 
intelligence sources'. The third tackles encryption and the fourth 
covers the 'scrutiny of investigatory powers and of the functions of 
the intelligence services'. Parts I to III propose massive extensions 
of the state's powers to spy on its citizens while the fourth suggests 
a regulatory regime which seems laughably inadequate to anyone 
familiar with internet technology. All sections of the Bill have been 
heavily criticised by external experts and a small number of 
committed MPs, but the legislation has passed through its 
Commons scrutiny with its central provisions intact.  

Part I gives the Home Secretary the power to issue a warrant 
requiring ISPs to intercept the communications of one or more of 
their subscribers. The problem is that the internet is not like the 
telephone system - where it is technically feasible to tap into a 
particular individual's communications link. In order to monitor a 
person's internet traffic, you have to tap into all the traffic running 
through his or her ISP. As a result, the expectation is that Part I of 
the Bill will be implemented using so-called 'passive monitoring': 
ISPs will be required to install a 'black box' which will monitor all 
their data traffic and pass it to the GTAC centre.  

The news that henceforth all UK internet traffic will find its way to 
MI5 does not seem to have yet reached MPs, most of whom don't 
understand the technology and assume that the Home Office must 
know what it is doing. Defenders of the Bill point out that MI5 can 
only legally read the content of communications for which specific 
warrants exist, which is true. But they fail to notice that the Bill 
affords no such protection to the pattern of one's internet 
connections.  

In other words, while MI5 may need a warrant actually to read your 
email, many other people will have essentially unregulated access 
to logs of the websites you access, the pages you download, the 
addresses of those with whom you exchange email, the discussion 
groups to which you belong and the chat rooms you frequent - in 
short, a comprehensive record of what you do online and with whom. 
It will be interesting to see how this squares with the European 
Convention's requirements about privacy.  

It is Part III of the Bill, however, which is most likely to contravene 
the Convention. Section 46 gives the Home Secretary the power to 
compel the surrender of keys used to encrypt communications data. 
Failure to comply carries a prison sentence of two years. If someone 
cannot comply because they have lost or forgotten the key then they 
have to prove that to the satisfaction of a court. In other words, the 
burden of proof is shifted from the prosecution to the defence - one 
is presumed guilty until proved innocent. And how do you prove that 
you have forgotten something?  

Even more oppressive is the Bill's creation of a secondary offence - 
revealing that you have been required to supply, or supplied, a 
decryption key - which carries an even stiffer penalty. Under the 
terms of the Bill, for example, the police could arrive at 4am and 
demand that you produce such a key. If you were unable to comply 
and were taken in for questioning, it would be a criminal offence 
punishable by five years' imprisonment to explain to your family 
why you were being dragged off.  

Civil liberties campaigners are predictably opposed to the RIP Bill. 
But it is also widely opposed by the business community. Even 
Professor Norton, the architect of the Government's e-commerce 
legislation, describes the proposals as 'a classic own goal' that will 
undermine the aim of making Britain a centre for e-commerce. 
Encryption is central to e-business, and many companies have 
contractual agreements with clients for whom they hold 
cryptographic keys. Under the RIP Bill they would be banned from 
revealing that they had surrendered a key and thereby compromised 
the client's security.  

'This is a clear case,' says Norton, 'of the futility of government 
treating internet policy as a national issue when what is needed is 
international agreement. A UK firm which handed over the key of a 
multinational client would be vulnerable to a compensation claim in 
an overseas court for compromising that client's global security. US 
businesses are not happy about that liability and will opt to work in 
countries like Ireland.'  

The most astonishing thing about Straw's pre-emptive strike on civil 
liberties and e-commerce is that, to date, there has been almost no 
public discussion of it. The Ministers driving his Bill through 
Parliament concede that the powers they seek are sweeping, but 
argue that they can be trusted to apply them reasonably and that in 
any case the powers are commensurate with the threat from online 
criminals, terrorists, paedophiles and pornographers. In the 
absence of proper safeguards, the first argument is absurd.  

As far as the second is concerned, nobody has yet produced any 
convincing empirical evidence that the supposed threats are more 
than the fantasies of security services and hysterical projections of 
some newspapers. The internet undoubtedly provides a conduit for 
criminal conversations and porno graphic transactions. But then so 
does the telephone system and the Royal Mail, and yet nobody 
proposes tapping every phone in the land or scanning every letter. A 
terrifying erosion in our liberties is being planned, yet the threat is 
largely ignored.  

Could it be that this collective passivity is because, for most 
citizens, the liberties that are being eroded lie in the future rather 
than the present? Most people do not currently encrypt their email, 
even though an unencrypted email is as vulnerable to snooping as 
an ordinary postcard. But in five years' encryption will have become 
a necessity.  

Human nature being what it is, people will lose or forget their 
decryption keys - and some will find themselves attempting to 
convince a judge that they are not paedophiles feigning amnesia to 
qualify for a shorter sentence. Will they then remember Burke's 
warning that for evil to triumph it is necessary only for good men to 
do nothing? And will they wonder why they had not been more 
alarmed on the morning of 5 October 2000?  

Copyright 2000 Guardian Newspapers Limited





* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
==== Messages posted on this list are also available on the web at: ====
* * * * * * *     http://www.scn.org/volunteers/scn-l/     * * * * * * *