Category Archives: Politics

Untangling DRIP

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…”

Why I don’t trust Glenn Greenwald

Willard Foxton, writing for The Telegraph, on Glenn Greenwald and the creepy cult that surrounds him:

I’m sure Mr Greenwald sees himself as a crusader for justice. It’s exactly that commitment to a cause that makes me wonder if he came across a document exonerating the Obama administration in this scandal, would he throw up his hands and say “Sorry guys, we have to forget about this one”? Or would he quietly bin it, because it doesn’t fit with what he believes as an activist? Journalism isn’t just about writing good copy, it’s about actually finding the truth, and accepting that sometimes it won’t be a truth you like.

This is exactly the problem I have with Greenwald. I don’t trust him not to simply ignore anything he comes across which doesn’t fit with his narrative.

Selective publication of documents only works if the journalist handling them can be trusted to publish the truth of what he finds. That’s incompatible with the idea of “activists journalist” that Greenwald espouses – because an activist, by definition, is batting for one side rather than another.  There’s not a chance he would print “a truth he doesn’t like”.

Privacy will die, but not because of corporations or governments: Because of you

Edward Snowden used his alternative Christmas message to highlight the death of privacy, and he’s right that privacy as we’ve all known it will die. But he’s wrong to focus on what governments are doing. Governments aren’t the ones that are going to kill privacy.

Neither are corporations the ones to blame. Google, Amazon and the like will know more about us than any company has ever known about its customers, but they aren’t the ones who will kill privacy.

No: the ones responsible for the death of privacy will be you and me.

What happens when the technology of surveillance - surreptitious cameras, tiny drones,  spyware – becomes available to every individual on the planet? What happens when every parent can follow their children’s activities 24/7, online and offline?

History tells us that technology starts off expensive and big, the domain of governments and corporations, and ends up small and cheap, available to every individual. Surveillance tech is going to follow the same pattern. And that, not corporations and governments, will be what kills privacy.

The end point of surveillance

A starting point:

The federal government is making progress on developing a surveillance system that would pair computers with video cameras to scan crowds and automatically identify people by their faces, according to newly disclosed documents and interviews with researchers working on the project.

(via Facial Scanning Is Making Gains in Surveillance – NYTimes.com)

There are very few technical limits connected to surveillance. If a government wanted to, it could monitor every electronic communication you have. It could recognise your face, your car, your clothes and follow you around the physical world. It could recognise every person you meet, track every transaction you make. None of this is rocket science, and within ten years it will be available to every government on the planet. [1]

Turning away from technical capabilities isn’t going to work. Some government, somewhere, is going to do it and gain a huge advantage over others. They won’t limit themselves to surveilling their own people: any way they can hack into the systems used by others will be used, because knowing what the citizens of other countries are up to is a massive advantage too.

Knowledge is power.


  1. And ten years after that, it will be available to every individual on the planet.  ↩

Obama is playing a smart game with Syria

It strikes me that Obama is playing a very smart game with his decision to ask Congress for the authorisation to act against Syria. If he can get the backing of a Republican-controlled Congress, he can play the “America is unified” card.

That makes his position much stronger with other countries. He will have not only (as he sees it ) a moral mandate, but also a democratic one. And where David Cameron lost because the people's representatives weren't behind him, Obama would have that backing.

And if he loses? To my mind, he's in something of a no-lose situation. If he loses the vote, he can simply blame the Republicans.

On the Republican obsession with Obamacare

Jon Favreau ponders why the Republicans are still obsessed with Obamacare:

“But today, the anti-government zealots who have taken over the once-proud Republican Party feel they must burn our village to save it. They are actively trying to prevent Americans who have been too poor or sick to get health insurance from knowing that all three branches of their democratically elected government have passed and upheld a law that will finally allow them to see a doctor without going broke.”

The Republican Party: once-great, now batshit-insane.

Something doesn’t add up in the lastest Washington Post PRISM story

The Washington Post has released additional slides from the PRISM deck, which it has annotated and which have resurrected the “equipment installed at company premises” claim. Some – notably Glenn Greenwald – have claimed this proves the “direct access to company databases” claim from the original story has been verified, despite the vociferous denials of all the companies involved.

But does it? Dig a little deeper, and I think it becomes clear that the WaPo hasn’t got the story it thinks it has.

First, there’s nothing in the released slides themselves which directly corroborates the “installed at company premises” claim, which exists only in the annotations that the reporter, Barton Gellman, has added to the slides. Here’s how the process is described by Gellman:

The search request, known as a “tasking,” can be sent to multiple sources — for example, to a private company and to an NSA access point that taps into the Internet’s main gateway switches. A tasking for Google, Yahoo, Microsoft, Apple and other providers is routed to equipment installed at each company. This equipment, maintained by the FBI, passes the NSA request to a private company’s system.

The slides themselves, though, make no mention of much of this. In particular, there’s no reference to company premises in anything on the slides. 

Given that the slides don’t say that equipment is installed at the company, where has this point come from? I think there’s three options:

  1. It’s featured in other, as-yet unreleased slides.
  2. It comes from verbal or written testimony from Edward Snowden or another intelligence source.
  3. It’s an interpretation of something in the released slides.

The first option is possible, but I think we can rule it out. If there was a clear, unambiguous statement that the FBI had equipment installed in company premises on another slide, I can’t see why the WaPo wouldn’t publish that slide, even if it had to do so in heavily redacted form. So that leaves us with the other options.

Is the WaPo relying on unknown third-party sources? If it was, I can’t see why it wouldn’t add an “intelligences sources confirmed…” in the story. It would be a stronger story for it, so why not say? If, on the other hand, it’s Snowden, I can understand why it might avoid naming him as the source. Snowden’s direct testimony has proved to be occasionally exaggerated and sometimes even unreliable – but the WaPo could use “a source familiar with the whole presentation” instead of naming him, which would again strengthen the story.

At this point, I think the onus is on the WaPo be a little transparent and clear this up. If there’s additional evidence, show it – or at least note you’re relying on it.

Which leaves us with the third option: interpretation. And I think this is where WaPo has, at the very least, produced something that’s an epic muddle. The muddle occurs around the box labelled “FBI Data Intercept Technology Unit (DITU)”.

A DITU sounds like a piece of technology. It sounds like the kind of thing that you would install somewhere to do intercepts, and, given the way the diagram is structured, you might well surmise that it was installed on company premises.

 

But it’s not. In fact, the Data Intercept Technology Unit isn’t a piece of technology, something which would sit at the premises of a company. In fact, it’s a department of the FBI, formed several years ago, tasked with data interception of the “packet sniffing” variety (it even has its own Challenge Coin). It’s known to use a suite of packet inspection tools which allow it, from TCP/IP data, to recreate emails, IM, images, web pages and more. Essentially, it specialises in snooping tools which let you find out what someone is doing online without having access to the original servers. Essentially, it will tap data at the ISP level, rather than the server level.

The annotation on the second new is where the waters get really muddy. In a note attached to the box for the DITU, Barton adds:

From the FBI’s interception unit on the premises of private companies… [my emphasis]

Does Gellman think that DITU is the “interception unit”? I emailed him to ask, and initially he confirmed that the “interception unit” referred to in the annotation was the DITU – which would be a fairly major error. However, when I pointed out that this made no sense, he clarified, claiming that by “interception unit” he was referring to the organisation within the FBI, not the equipment. All clear on that?

WaPo DITU

This, though, makes the annotations even more puzzling. Why would you use the phrase “interception unit on the premises” to refer to the organisation within the FBI? Clearly, the organisation isn’t on the premises – the equipment (supposedly) is.

The other option is that Gellman is using “interception unit” to mean both the DITU and the equipment, which would be – at the very least – pretty poor writing. So what exactly does Gellman mean? Perhaps understandably, he declined to answer further questions.

None of this means that the WaPo doesn’t have a story. We now know that the FBI’s DITU can be tasked by the NSA to conduct live surveillance on the data of identified (and 51%-certain-foreign) targets. The NSA can also request data from previous FBI DITU surveillance. These specifics weren’t known before, so Gellman and the WaPo should get credit for a scoop.

But it isn’t the scoop they think it is, because the slides don’t confirm either the direct server access that Greenwald is crowing about or the presence of on-premise equipment at Google, Apple, and the rest. There’s simply nothing in the slide which states that equipment is on-site, and there’s no alternative source for this claim. There’s no way I can see to interpret anything on the slides as putting that “interception unit” inside the premises, accessing data on demand without any company oversight. 

A more likely scenario, particularly given the DITU’s heritage as data tappers, is that the equipment taps into Internet backbones – something that’s supported by one of the original slides, which referred to how much of the world’s comms data flowed through the US. Why bother with a slide like that if you’re tapping directly into Google’s servers?

The WaPo story isn’t proof of mass warrantless surveillance of US citizens, or (as it stands) of in-house equipment at Google, Apple, Microsoft and the rest. Unless it has more evidence which hasn’t been published that explicitly shows this, not much new controversial information has been added to what we know about the NSA and its activities.

The problem with Glenn Greenwald

Jonathan Chait describes the litigators methodology of Glenn Greenwald:

You take a side, assume the other side is lying, and prosecute your side full tilt. It’s not your job to account for evidence that undermines your case — it’s your adversary’s job to point that out.

Bingo. My own encounters with Greenwald, in the comments to various blogs about the likelihood of Julian Assange being extradited from Sweden, have seen him follow exactly the same pattern: simply ignore any point which refutes something you claim.

This legal adversarial model makes for good justice, but bad politics.