While the promotion of gaffe-prone walking haystack Boris Johnson to the post of Foreign Secretary has prompted much lulz, one of newly-minted PM Theresa May’s smarter moves was to offer David Davis the job of Brexit Secretary.
This new position will see the keenly pro-Leave Davis occupied with extricating the UK from the European Union - potentially leaving him with little to no time to halt the progress of the Investigatory Powers Bill (IP Bill).
As well as an ardent supporter of Brexit, Davis has been an implacable opponent of May’s Communications Data Bill, the original ‘Snoopers’ Charter’ and precursor to the current IP Bill.
Davis has even gone so far as to join forces with Labour deputy leader Tom Watson to raise a legal challenge to the current Data Retention and Investigatory Powers Act (DRIPA) in, of all places, the European Court of Justice (ECJ).
Time is running out for DRIPA, which has a sunset clause built in. This means it’ll expire at the end of the year, unless it's superseded by a new set of laws. Enter the IP Bill, that’s now just few steps away from achieving Royal Assent.
RIPA it up and start again
The surveillance powers of the UK’s security services are currently governed by DRIPA, which means that ISPs and mobile networks like BT, Virgin Media, Sky, EE and O2 are required to keep a record of their subscriber’s Internet use and phone records for up to a year.
Upon request, ISPs and networks must make this information available to security services.
This kind of surveillance is typically referred to as bulk collection; everything retained en masse and sifted through later as and when the cops need it.
Last November, Theresa May as Home Secretary admitted that the British public’s communications data (who spoke to who and when) had been collected in bulk for years, in secret, which prompted much gnashing of teeth. People don’t tend to like it when they find out they’ve been spied on for over a decade.
Indeed, it was because of the revelations of Edward Snowden, described as a “traitor” by Liam Fox (recently appointed to the post of Trade Secretary) that the ECJ ruled the UK’s spying regime incompatible with European Law; the previous RIPA rules were kicked to the kerb by Brussels back in 2014, hence the rushing through of the temporary DRIPA laws - UK policymakers wanted to keep the current rules in place while newer, ostensibly tighter rules are drawn up and debated.
The IP Bill will retain bulk capability and then some; while it might be easy peasy for you to mask your browsing habits by using something like Tor, the Bill contains a provision to force the: “removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data.” In other words, it looks like the Government wants to ban encryption, of any kind to boot.
Tales from the Encrypt-keepers
Davis has criticised past versions of the IP Bill as “ill-defined,” and employing language that’s deliberately designed to confuse. It’s only until this week that Lords have zeroed in on some of the whiffy wording, tabling amendments to limit Government power to erode encryption. Despite this, the possibility of encryption backdoors being built into services like WhatsApp still lingers - as it does in Russia and Brazil.
SC Magazine’s Max Metzger quotes Earl Howe, House of Lords Deputy Leader and Minister of State for Defence, saying: “I have to say that they are irresponsible proposals, which would remove the Government's ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies.”
Metzger’s done a good job of lining up a series of experts, CEOs and professors who all roundly say that what Howe’s after is a nice idea on paper, but technically impossible to deliver. Even Lib Dem peer Lord Strasburger said: “The Government is wrong to think that we can have the strong encryption with no back doors which e-commerce and many other services rely on and at the same time permit the security services to have a way to decrypt secure communications.”
Then again, it’s not terribly fashionable to rely on facts or experts these days, so reason may fall on deaf ears.
Davis has maintained in the past that the IP Bill or “or something like it” is necessary for security bods to do their job in the 21st Century.
“It replaces 66-plus other statutory mechanisms, so, in the interests of transparency, we need something to put in their place,” Davis said in March. “But it grants sweeping powers with insufficient safeguards and not enough consideration of privacy.”
Davis and other Commons MPs can’t do anything until the Bill enters its final stage before getting its Royal rubber stamp, where both houses get to consider any last minute amendments. Few other new members of the cabinet have voted against bulk retention and the voting records; cabinet newbies Liam Fox, Priti Patel (Secretary of State for International Development) and the new Home Secretary Amber Rudd didn’t even bother turning up for the last two Commons votes on the IP Bill.
May wants Article 50 triggered as soon as possible and Davis’s new job literally has Brexit written all over it. He is unlikely to have time for anything else.
“Surveillance” by Quinn Dombrowski is licensed under CC BY 2.0.