Government surveillance plan in turmoil

The government underestimated the cost and legal implications of its snooping plans

There have been several conflicting reports on the government’s interception modernisation programme this week, ranging from “UK web snooping plans: Full steam ahead” to “Legislation to access texts and emails on hold”.

The confusion over the progress of plans to tighten law enforcement agencies’ power to monitor communications has arisen for two reasons.

First, although the government has said it wants to press ahead with the plans, it will not introduce them before the next election. And second, the government is still not sure what it actually wants to do.

Last week Home Office minister David Hanson said in a letter to parliament: “The rapidly changing communications environment means the existing capability of the police, the security and intelligence agencies and other public authorities is declining.”

In short, communications are moving online and the disorganised nature of the internet is making it hard to identify relevant information.

Currently, EU law requires phone and internet companies to keep communications data for a year. This approach ensures that data is available, but it is fragmented and law enforcement needs the data to be held in one place for it to be useful.

It was these concerns over fragmentation that prompted last summer’s announcement proposing the creation of a £12bn database recording all web and phone communications in the UK.

Creating a clean database for communication records would make it easily searchable for patterns, thereby enabling police enquiries.

It is likely that communication service providers (CSPs) ­ phone and internet companies ­ leaked the story to the press after it emerged that the burden of information collection would fall on them. The issue was forced into the open earlier than the government would have liked and there was an outcry from the media and privacy campaigners.

As a result, the government watered down the plans this year and announced a consultation on them. Instead of building a database of communications, it would require internet and phone companies to provide data of their own communications as well as those that had passed over their network and make them available to law enforcement agencies in an organised and searchable form.

According to Peter Sommer, who wrote a paper on the proposed regulations for the London School of Economics (LSE), the consultation revealed this to be a much harder task than was initially presumed.

“The thinking behind the consultation was poor. They got a wish list from intelligence services and tried to implement it,” he said. “But the cost implications and required changes to the law were greater than they had realised.”

Requiring CSPs to organise data at a time when they are already under pressure to roll out broadband nationally is a big ask and will require considerable time and effort, according to Sommer.

A further problem concerns the legality of the proposals. The Home Office has always insisted it is only interested in data about the details of the communications rather than their content, as the content of messages is not admissible as evidence in court, whereas the detail of the communications is.

But with the internet age throwing up instant messaging and web-based emails, this distinction no longer applies, potentially lumbering judges with difficulties in interpreting the difference, and meaning a large amount of material collected by CSPs could be rendered useless in court.

“When you start applying 1990 definitions to modern communications, things become tricky legally,” said Sommer.

Other countries don’t have the distinction between content and communications data and a potential solution would be to go back to the Regulation of Investigatory Powers Act ­ which governs the surveillance of communications ­ and amend it to make the content of communications admissible.

This would further stall the programme’s progress and, given that the Conservatives have voiced objections, the move could stymie it altogether.

Further problems for government on RIPA

The Regulation of Investigatory Powers Act (RIPA) has been in the headlines for other reasons this week. In the wake of a court case instigated by a mother claiming her local council used the law to check she lived within her child’s school’s catchment area, the government has promised to amend it. The law was originally intended for the investigation of serious crimes such as terrorism but local authorities have been using it for minor offences.

Home secretary Alan Johnson said: “The public willingly accepts that in their efforts to bring criminals to justice, the police should be able to locate people using their mobile phone records. But they will not accept such powers being used to spy on people who put out their rubbish on the wrong day, or let their dogs foul the streets, because this is clearly not proportionate.”