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Tuesday, March 01, 2016 

Envy, America and civil liberties.

They do things differently in America.  There, various gullible fools and paid shills (surely highly principled and privacy conscious individuals? Ed.) have been protesting outside the FBI building against the demand that Apple break the encryption on the recovered iPhone of one of the San Bernardinho attackers.  Both sides, it's fair to say, are chancing their arm: the FBI hasn't provided the slightest of evidence that Syed Rizwan Farook's phone contains anything they won't have already accessed or found from all the other material they've seized, much less a link to possibly imagined accomplices. Their real aim seems to be to strike a blow against the movement towards encryption post-Snowden, and they've done so by biding their time, waiting for a highly unrepresentative hard case where they've figured the public will (mostly) be on their side.

Apple for their part, far from making a principled stand, have decided this is yet another issue on which they can draw a line between themselves and the "opposition", despite sharing all the rest of their values. Masters of marketing as they are, continuing to succeed in presenting their products as highly aspirational and exclusive despite every other person having one, this time they figure they can occupy the moral high ground and further ingratiate themselves with the tech-obsessive, civil libertarian crowd. They're doing this through an astroturf campaign that presents a tax avoiding, cheap Chinese labour using corporation as far superior to a government, but still, right?

Had say the FBI been more set on keeping tabs on actual extremists than entrapping innocents, they might have had more chance of preventing San Bernardinho.  Likewise, it seems a bit rich of Apple to pretend to care about privacy and the implications of the FBI's order considering just how easy they made it to "hack" into iClouds, even if Apple is nowhere near hypocritical on such matters as Facebook and Google are, making their money almost solely through the monetisation of the data we share with them.

This said, the FBI vs Apple battle has a glamour and definable quality to it that the opponents of the Investigatory Powers Bill would kill for.  In a fight where the opposition is arguing about something intangible, and when a majority of the British public have long been prepared to give up a little privacy/liberty in return for the promise of more security, the Home Office knows the odds are stacked in its favour.  That confidence can be seen in the changes made to the now published bill since the draft was made available in November: advised by an unusually assertive Intelligence and Security Committee to make more clear the privacy protections, the Home Office has done so by inserting "privacy" into a single heading.  The actual wording underneath is identical.

The news release sent out last night was clear about how seriously the various reviews by the ISC, David Anderson and the bill's own joint committee had been taken, as well as all the other submissions from interested parties, and how changes had been made accordingly.  Strangely then, the bill seems barely distinguishable from the draft version.  What is new is that since November the police seem to have realised they weren't being allowed to join the data intercepting party, and so now they too will be allowed to hack in certain circumstances, as well as access internet connection records (ICRs) across the board, rather than just those relating to "illegal websites" and communication services.

According to the Home Office, that this power wasn't included in the draft was merely an oversight, as the police are already getting their hack on.  Regardless, it helps with the example of how retained ICRs could be used, like in the case of "Amy" detailed in the operational case (PDF).  Amy is 15, and impressionable.  One morning she disappears: her parents ring her mobile but it is switched off.  Luckily, the police via an ICR request discover the use of a particular messaging app, along with social media.  They contact those providers, and discover she contacted a particular individual, who less fortunately was using a false name.  But wait!  He did register an account with a genuine mobile phone number, which the police make communications data requests for, and discover he had contacted a hotel chain on.  A live booking is found, the police descend, and Amy is saved from a slavering 40-year-old with previous child exploitation convictions!

If this seems more than a little fatuous, then it and the other examples of how the new powers could be used similarly don't explain why ICRs need to be retained for 12 months, as all relate to immediate, live investigations.  The majority of the examples cited involve child sexual exploitation, or how more suspected paedophiles could be identified if only ICRs with their additional detail were retained.  It's fine to argue this would be the case, but it simply doesn't follow that prosecutions would be the result: that would require further police resources, which are not being provided, and also that additional evidence would be discovered as a result, as an IP address accessing a website at a particular time isn't enough on its own.

Where the government has deigned to provide more substantial evidence to back its arguments is on bulk interception (PDF), which is odd as it isn't quite as controversial as the retention of ICRs.  This raises just as many questions as it answers, however: bulk interception we're informed has "played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014".  Indeed, the case studies provided claim that bulk interception found the liquid bomb plotters; the 2007 beheading plot group; and played a key role in the disruption of the plot to attack the London Stock Exchange among other targets in 2010.  These are fairly remarkable admissions, if that is they're accurate.  One wonders if there aren't some police officers or informers who'd be more than a little miffed if they were aware of just how much emphasis is being put on bulk interception when previously no such claims have been made.  Is this a sudden burst of openness, an attempt to at least try to meet the requests of the reviewers or something more sinister?

While some of the privacy protections have then been ever so slightly tightened, and the government has also published the codes of practice, the fundamentally objectionable intention of retaining data on every single one of us, accessible without a warrant to the police and other state bodies excluding local authorities remains.  These are powers not deemed necessary anywhere else in the world, with little in the way of safeguards to ensure they are not abused, or indeed any true reassurance that the bulk interception powers obtained and operated without debate until the Snowden revelations have not been misused.  Having rushed through the draft process, with the reviewing bodies working overtime to get their recommendations heard, the government now wants to rush through the parliamentary stage in similar fashion.  They are doing so against the drumbeat of the EU referendum, knowing little other than the Budget is going to garner attention between now and June the 23rd.  They at the same time smartly made clear today that freedom of information will not be getting restricted, delighting journalists, while also claiming to have strengthened hacks' protections from cops snooping on their sources.  Wish that both sides could lose as I do in America, you can't been help envy how at the very least the casual loss of privacy and rise of surveillance prompts debate and protest.  Here?  Nothing except whimpers from the usual suspects.

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