It can be hard to navigate the surveillance debate. On the one hand, whilstblower revalations, notably those from Edward Snowden, have revealed the way in which states are accumulating collection of mass communications data, creating new regimes of deeply intrusive algorithmic surveillance, and unsettling the balance of power between citizens, officials and overseers in politics and the media. On the other, as recent events in Paris, London, the US and right across the world have brought into sharp focus, there are very real threats to the life and liberty posed by non-state terrorist actors – and meeting the risks posed must surely involve the security services.
Fortunately, rather than the common pattern of rushed legislative proposals after terrorist attacks, after the attacks in Paris, the UK has kept to the planned timetable for debate of the proposed Investigatory Powers Bill.
The Bill primarily works to put on a legal footing many of the actions that surveillance agencies have already been engaged in when it comes to bulk data collection and bulk hacking of services (equipment interference, and obtaining data). But the Bill also proposes a number of further extensions of powers, including provisions to mandate storage of ‘Internet Connection Records’ – branded as creating a ‘snoopers charter’ in media debates because of the potential for law enforcement and other government agencies to gain access to this detailed information in individuals web browsing histories.
Page 33 of the draft includes a handy ‘Investigatory Powers at a Glance’ table, setting out who will have access to Communications Data, powers of Interception and Bulk Datasets – and what the access and oversight processes might be.
Reading through the case for new powers put in the pre-amble to the Bill it is important to critically unpack the claims made for new powers. For example, point 47 notes that “From a sample of 6025 referrals to the Child Exploitation and Online Protection Command (CEOP) of the NCA, 862 (14%) cannot be progressed”. The document extrapolates from this “a minimum of 862 suspected paedophiles, involved in the distribution of indecent imagery of children, who cannot be identified without this legislation.”, yet this is premised on the proposed storage of Internet Connection Records being a ‘magic bullet’ to secure investigation of all these suspects. In reality – the number may be much lower.
Yet, getting drawn into a calculus of costs and benefits, trading off the benefits of the protection of one group, with the harms of surveillance to another group, is a tricky business, and unlikely to create a well reasoned surveillance debate. We’re generally not very good at calculating as a society where risks are involved. And there will always be polarisation between those who weight apparently opposing goods (security/liberty?) particularly highly.
The alternative to this cost/benefit calculus is to develop a response based on principles. Principles we can check against evidence, but clear guiding principles none-the-less.
Here’s my first attempt at four principles to consider in exploring how to response to the Investigatory Powers Bill:
(1) Data minimisation without suspicion. We should collect and store the minimum possible amount of data about individuals where there is no reason to suspect the threat of harm to others, or of serious crime.
This point builds upon both principles and pragmatism. Individuals should be innocent until proven guilty, and space for individual freedom of thought and action respected. Equally, surveillance services need more signal, not more noise.
When it comes to address terrorism, creating an environment in which whole communities feel subject to mass surveilance is an entirely counterproductive strategy: undermining rather than promoting the liberal values we must work to protect.
(2) Data maximisation with suspicion. Where there is suspicion of individuals posing a threat, or of serious crime, then proportionate surveillance is justified, and should be pursued.
As far as I understand, few disagree with targetted surveillance. Unlike mass surveillance, targetted approachs can be intelligence rather than algorithmically led, and more tightly connect information collection, analysis and consideration of actions that can be taken against those who pose threats to society.
(3) Strong scrutiny. Sustained independent oversight of secret services is hard to achieve – but is vital to ensure tagetted surveillance capabilities are used responsibly, and to balance the power this gives to those who weild them.
The current Investigatory Powers Bill includes notable scrutiny loopholes, in which once issued, a Warrant can be modified to include new targets without new review and oversight.
(4) A safe Internet. Bulk efforts to undermine encyption and Internet security are extremely risky. Our societies rely upon a robust Internet, and it is important for governments to be working to make the network stronger for all.
Of course, putting principles into practive involves trade offs. But identifying principles is an important starting point to a deeper debate.
Do these principles work for you? I’ll be reflecting more on whether they capture enough to provide a route through the debate, and what their implications are for responding to the Investigatory Powers Bill in the coming months.
(P.S. If you care about the future of the Investigatory Powers Bill in the UK, and you are not already a member of the Open Rights Group – do consider joining to support their work as one of very few dedicated groups focussing on promoting digital freedoms in this debate.
Disclosure: I’m a member of the ORG Advisory Council)