What we talk about when we (can’t) talk about mass surveillance

As the UK's draft Investigatory Powers Bill makes its way towards being made law, we need to say something now. If we are not careful, when we do open our mouths, a jail cell may be waiting. 

Nik Williams
13 November 2015

Amer Ghazzal/Demotix. Some rights reservedThere is much to absorb in the over 300 pages of the draft Investigatory Powers bill. When paired with the reams and reams of comment and analysis that have followed, it is easy to be overwhelmed. For a piece of legislation as contentious as this, you cannot help thinking that this was part of the government’s plan; an attempt to bury controversial aspects within broader, more headline worthy, points of contention.

A key example of this is the prevalence of gag orders that are scattered throughout the bill but have garnered relatively little attention and debate.

 This is an attempt to bury controversial aspects within broader, more headline worthy, points of contention.

As outlined by Glyn Moody in Ars Technica, Section 189 of the bill relates to "technical capability notice" and gives the home secretary the power to impose an obligation to operators that only she needs to consider "reasonable to do so." Moody and George Danezis, an associate professor in security and privacy engineering at University College London, identify this as a key passage relating to the government’s goal of obliging technological companies to both build backdoors in their platforms and decrypt data on request. These are two key policies that look to both bypass and weaken end-to-end encryption, practices central to the full and secure functioning of many online platforms that we take for granted. But it gets far worse.

Enforcing these notices and holding them up to public debate or scrutiny has swiftly been lifted out of the public domain, as gagging orders make this practice punishable by both fines and potential imprisonment. As Danezis outlines:

Secret backdoor notices (I mean “technical capability notices”) will be issued, and [an] enterprising geek that wants to open a debate about them will either know nothing about them, or be breaking the law. There will be no debate about what kind of back doors, of when they should be used — all will be happening in total secrecy.”

Millions of users may be opening themselves up to a vulnerable system without knowing the threats they may be exposed to.

But this is not limited to section 189. Moody identifies similar gag orders relating to: “Interception (Section 43(1-7)); 'equipment interference' (hacking—Section 148); and retaining communications data (Section 77). Gag orders would also be in place for bulk communications data collection (Section 133).”

If we take section 189 alone, this would suggest that we are to use platforms without the knowledge that they have been co-opted by the state for its intelligence gathering procedures. This may make sense from GCHQ’s narrow view; by giving the public the knowledge of and then choice to avoid compromised platforms, we would be limiting the data we can capture. But as Tim Cook, Apple’s Chief Executive outlined this week, “any backdoor is a backdoor for everyone. Everybody wants to crack down on terrorists…Opening a backdoor can have very dire consequences.” So millions of users may be opening themselves up to a vulnerable system without knowing the threats they may be exposed to. 

freedom of expres.jpg

Freedom of Expression/ Flickr. Some rights reserved.Aside from the gag orders, this appears to be emblematic of the government’s broader approach to skewing the nature of debate around mass surveillance. The draft bill moves to legalise many of the revelations made public by Edward Snowden instead of addressing the concerns these powers represent.

George Monbiot highlighted this approach in a tweet posted last Wednesday: “Instead of stopping #surveillance abuses revealed by Edward Snowden’s revelations, Theresa May is legalising them.” The revelations and the limited public debate it started in the UK have proved useful; identifying to the state what they can cement in legislation, while at the same time moving to clamp down on the very forum that has made it possible.

“Because for the past 200 years we haven’t had a Stasi or a Gestapo, we are intellectually lazy about it, so it’s an uphill battle.” These are the words of former shadow home secretary David Davis, but without the public demanding stronger judicial oversight or limiting some of the more invasive aspects of the bill, the government can continue to frame the terms of the debate, and put in place procedures such as the gag orders that give them a legal footing to do so.

 But it goes further than just this. The gag orders represent an attempt by the government to extend this framing beyond the drafting process to limit future debate or attempts to blow the whistle. Without a strong evidence base to contest the actions of the state, opposition will remain fragmented and inexact, unable to demonstrate the damage surveillance measures may have on our ability to communicate, our civil liberties or the suitability of the UK for new tech industries.

Gag orders represent a severe chilling of our freedom of expression.

Gag orders represent a severe chilling of our freedom of expression, limiting the ability of the citizenry to challenge the rulings that are systemically eroding our privacy in the name of national security. Whether we know if the platforms we use on a daily basis have been co-opted by the state and are, as a result, more vulnerable, is looking at a battle already lost.

Our intellectual laziness may have got us this far; it may have ennobled the government but it does not need to define us, nor does it need to continue. But as the draft Investigatory Powers Bill starts the process towards being made a law, we need to say something now, because if we are not careful, when we do open our mouths, a jail cell may be waiting. 

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