There’s already been a lot of commentary on the government's attempt to railroad through the Data Retention and Investigatory Powers Bill, known to its opponents as DRIP. According to the government, DRIP represents a simple piece of emergency legislation designed to preserve powers which are about to lapse. To its opponents, it represents a genuine threat to privacy. But which is it?
Does DRIP extend the government's powers or not?
The key question with DRIP is whether or not its clauses represent a simple reaffirmation of existing powers, or an extension of RIPA. As David Allen Green has cogently argued, over half of the text of the bill is devoted to amendments to RIPA rather than reaffirming the data retention regime. The clauses which deal with RIPA – 3, 4 and 5 – all amend it ways which the government claim are “clarifications” but which Green (and I) both think go well beyond that, into the area of new or extended powers.
Clause 3 feels like the work of the Liberal Democrats, “clarifying” the ability of the government to intercept communication on the basis of “economic well-being”. Few would object to this, but – as Green points out – this is not something that requires emergency legislation or, I'd argue, should form any part of a bill which isn't going to be scrutinised.
Clause 4, on the other hand, is pretty noxious: it extends the scope of RIPA to any company providing services to UK citizens, even if they (and their data) are based abroad. As Green points out, this is more than a simple clarification or cosmetic change, and therefore shouldn't be in an emergency bill.
What does Clause 5 do?
In the grand tradition of leaving the worst till last – when hopefully scrutineers will have tired eyes and fogged brains – Clause 5 is possibly the one which is the most despicable. It focuses on the meaning, in RIPA, of “Telecommunications Service”, and extends that definition way beyond the original bill.
At present, RIPA defines “telecommunications service” thus:
“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service).
The DRIP Bill will add this:
For the purposes of the definition of telecommunications service in subsection (1), the cases in which a service is to be taken to consist in the provision of access to, and of facilities for making use of, a telecommunication system include any case where a service consists in or includes facilitating the creation, management or storage of communications transmitted, or that may be transmitted, by means of such a system.
Why the change? The government insists this is primarily to clarify that the bill includes services like webmail. However, read more loosely it could include the entire contents of your Dropbox, or Google Drive, or anything else which “facilitating the creation, management of storage of communications”. Is sharing a document from Google Drive “communications”? With the boundaries between file storage and email blurring, you can bet it will be interpreted that way.
It also, of course, definitely includes the likes of Facebook and Twitter, cementing the intelligence services view that such services are fair game without any additional warrant. I'll come back to that in a minute.
Evidently, this goes well beyond simply clarifying what RIPA means: it's a clear extension of the scope of the law, and as such it shouldn't be part of an emergency bill even if you accept the government's argument that such a bill is necessary. The principle that granting intelligence services additional powers should only be done with the full scrutiny of Parliament and its committees except in the direst national emergency is one which is incredibly important, because without it democracy itself effectively ceases to function. This is particularly true when the measures have the backing of all the parties, because it's not like we can simply blame the government in vote in a party with clean hands.
External communications and RIPA
It's also worth remembering the government itself rarely understands the full implications of its own legislation, particularly in the fields of technology and security. There's two reasons for this. First, government ministers only occasionally have more than a layman's interest in technology. Today, you might find MPs who are brilliant users of Twitter, but finding one that understands the nuances of global TCP/IP routing is much harder.
That's not itself a problem, but unfortunately the experts ministers consult on technical matters tend to be fairly useless too. When you have a government which consistently believes the promises of the likes of Capita about what technology can achieve, the independent advice it is seeking clearly doesn't amount to much.
The second issue is the role of the security services. Security services are, by designed, both cautious and prone to high levels of suspicion. When dealing with external threats, this is actually a positive factor: protecting a country's citizens is a great responsibility, and you want organisations to do it with extreme caution and rigour.
However, this naturally leads security organisations to request more and more access to data, “just in case” something important might be missed. Again, demanding this is in itself not a negative thing. The job of an intelligence agency is to make sure it doesn't miss vital intelligence, not to make judgement calls over whether a specific tool oversteps the mark and leads to violations of individual privacy.
That is the job of the law, and creating a clear and well-written legal framework is the job of the politicians. And unfortunately, as we've seen, even with vast amounts of scrutiny, politicians are fully capable of making bad law which opens the doors to surveillance which the general public would find unconscionable.
Remember the recently revelation that the spooks regard services like Facebook and Twitter as fair game for interception, without an individual warrant? This happened because the last government allowed the warrantless interception of any “external communications” – a message sent or received outside the UK. Stand.org highlighted this at the time – and even, I am told, warned several newspaper editors about its implications – without much in the way of an outcry. The only MP to pick up on the issue during the bill's passage through Parliament was Richard Allan, who persistently questioned ministers about it.
Charles Clarke's answers to Allan are revealing, not only for their evasiveness masquerading as openness but also for their lack of foresight about technology. Clarke persistently comes back to the point that an individual warrant would be required in any case where either the recipient or sender of a message was in the UK, clearly understanding RIPA as intended to cover messaging services following an email-like, person-to-person model. The notion of a service like Facebook, where “the recipient” is much less clear but where there is an expectation of privacy and where everyone who reads a post may be in the UK, clearly wasn't thought about.
Did Clarke intend this all along? Did Parliament intend to give security services carte blanche to look through every kind of communication that UK citizens send without a warrant? I doubt it. The notion that politicians sit around toasting marshmallows while plotting to get nebulous rules they can exploit through Parliament is wide of the mark. They're not a sinister cabal.
Perhaps, though, this is the intention of the Clause 5 amendment: to clearly enshrine in law the spooks' right to intercept every Facebook post you make without a warrant. Perhaps that's what the government means when it says these clauses “clarify” existing powers. But if it is, then surely that's exactly the kind of thing which deserves full and proper scrutiny and debate in Parliament.
It is clear from Hansard that Parliament was thinking of email-like person-to-person communications when it passed RIPA, despite Allan and Stand.org's warnings. Now, having seen the hole in the phrasing and run through it with the enthusiasm of a Brazilian football fan fleeing a semi-final, the spooks have come to rely on the ability to intercept everything you and I post on Instagram. And rather than say “actually, that's not what we intended with RIPA, you can stop doing it please” the government is simply handing them the full legal power without a proper debate.
Fast law makes bad law
If a law can go through the amount of scrutiny that RIPA originally attracted and still end up badly-framed and grant wider powers than Parliament intended, just how bad can a law which has almost no scrutiny be? I'll leave that for you to consider, but the fact is that fast law makes for bad law.
The exception is fast law which is extremely narrow, but, as we've seen, that isn't the case here. DRIP goes beyond preserving the existing requirement on telecoms companies to retain data and into the realm of “clarifying” – which really means enhancing – RIPA. Not satisfied with doing something which, while objectionable, could at least be justified as preserving the status quo, the government is seeking to sneak in additional clauses which add more powers.
Does the government really intend that Clause 5 can be used to allow the spooks to trawl through any UK citizen's Dropbox? Probably not. But that's kind of the point: laws which are rushed through like DRIP are, inevitably, going to contain roughly-drafted clauses and definitions which are too broad, or too narrow, or just don't make sense. If this was a normal law, affecting, say, motoring, it's bad enough. When it deals with the rights of citizens to private life AND national security, it's incredibly bad.
If the government were to withdraw clauses four and five of DRIP, I could understand it as an emergency measure needed to retain existing powers. That both the Liberal Democrats – who, remember, argued they could act as a brake on the illiberal tendencies of the Tories – and Labour have been suckered into supporting the bill is a shocking display of their inability to properly scrutinise legislation. If they can fail to see the obvious additional powers in a two page bill, how much are they missing in larger, more complex legislation? Or are they so blinded by the magic words “national security” and stern-faced briefings from MI6 that they find it impossible to say “hang on a minute…”