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[FYI] (Fwd) Observer 4/6/2000: "Your privacy ends here"
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- From: "Axel H Horns" <firstname.lastname@example.org>
- Date: Sun, 4 Jun 2000 11:22:40 +0100
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From: "Caspar Bowden" <firstname.lastname@example.org>
To: "FIPR News Archive \(E-mail\)" <email@example.com>,
"FIPR-AC \(E-mail\)" <firstname.lastname@example.org>,
"Ukcrypto \(E-mail\)" <email@example.com>
Subject: Observer 4/6/2000: "Your privacy ends here"
Date sent: Sun, 4 Jun 2000 00:56:41 +0100
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Your privacy ends here
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
Free speech on the net: special report
Sunday June 4, 2000
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
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
'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
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?
Rest of the world
Most countries impose no restrictions on the use of encryption by
their citizens. The exceptions tend to be authoritarian regimes such
as those in Russia and China.
IRELAND: New e-commerce Bill makes it illegal for government to
access commercial cryptographic keys.
FRANCE: The government has recently announced a new policy of totally
relaxing controls on domestic use of encryption.
US: No domestic controls on use of cryptography, though Washington
looks enviously at the UK RIP bill.
GERMANY: Has long been the European leader in opposing restrictions
on citizens' use of encryption.
Over the coming weeks The Observer will print a series of articles
and opinion pieces on the proposed RIP Bill. If you wish to voice
your opinion online you can do so at www.observer.co.uk. To find out
more about the Bill see www.fipr.org/rip/
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