Cameron and Clegg’s cynical surveillance trick
Note: David Allen Green has done a blog on the contents of the bill for the FT (reg required). He is a lawyer. I am not a lawyer. So in the grand scheme of things it may wise to check his out if you want more detail about the nitty gritty of the bill.
David Cameron is very good at press conferences. He doesn't do them with any of the shameless Etonian swagger of his PMQs performances. He comes across as eminently reasonable. Yesterday, as he explained why emergency legislation was needed to protect the British public from paedophiles, terrorists and organised criminals, one felt like agreeing with him.
Nick Clegg stood beside him wearing the same pained expression he's had for four years, like a father who can't afford to buy his son a toy he really wants. They were running to stand still, Clegg said. The legislation would merely reinstate the law as it stood before the European courts struck it down. And actually, he had managed to secure plenty of new safeguards on British surveillance rules, so it was a net win.
But then the legislation was published and things looked rather different. There is a gulf between the description Cameron and Clegg gave us yesterday and what was in the bill in black and white. It's like booking a hotel on a website with soft-focus photos of the beach, only to get there and find a dog crapping in your hotel room.
For a start, Clegg's safeguards are nowhere to be found.
The two-year sunset clause he promised, whereby the legislation would die and require a further parliamentary debate, is meaningless.
Look at the current behaviour of the government to assess how reliable its future honour will be. The government is completely ignoring the point of principle behind the European Court of Justice, ruling which criticised a "wide-ranging and particularly serious interference" with our privacy. The debate has not been 'how do we correct such a damning assessment of our actions'. It has been 'how do we make sure this doesn't get in the way'. It demonstrates a point long made by civil libertarians: It’s easy to give up a freedom, but very hard to get it back.
Clegg's other promises, including a privacy and civil liberties oversight board and annual transparency reports, may be effective or they may be toothless. We don't know. At the moment they are nothing but promises. And we have precious little reason to have faith in him.
What we do know is that the content of the data retention and investigatory powers bill, which was published yesterday, bears little resemblance to what Clegg and Cameron were talking about at that press conference. If the government really wanted to just keep its current powers ticking over and prevent internet service providers destroying their records, they needed a two clause bill – a cut-and-paste job whacking what previously relied on an EU directive into national law.
The bill goes much further than that. Look at clause 1 (3):
"The secretary of state may by regulations make further provision about the retention of relevant communications data."
It's very broad. The aim here could be to make further legislation unnecessary. Any further extensions of government power could be carried out using a statutory instrument. It would be easier to challenge but perhaps lawyers thought it was worth sticking in there in case it became useful later.
The Regulation of Investigatory Powers Act (Ripa) the cornerstone of the UK's surveillance programme, makes a rather sudden appearance in the bill. More than that, it takes the whole thing over, like an over-the-top actor chewing up the scenery in someone else's movie.
But the changes to Ripa do not go in the direction Clegg would have had you believe. Quite the opposite. This mostly pernicious piece of law now has international reach. Firms outside the UK offering internet services here, like Facebook, must now accept UK interception requests. There are significant civil and criminal liabilities in the event of non-compliance.
There is also a change to the definition of "telecommunications service" which I could barely read without falling into a stupor.
Here it is in full, in case you can make any sense of it:
"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."
The explanatory notes assure us this merely refers to "companies who provide internet-based services, such as webmail". But that's a promise in an area where promises must increasingly be considered unreliable. Nothing in that passage indicates such a limited interpretation.
Ripa has no business appearing in this bill at all. Its very presence instantly disqualifies what Cameron and Clegg were saying yesterday.
Of course, they could have written the bill in Mayan and illustrated each clause with hieroglyphics. It wouldn’t have made any difference. It is being railroaded into the statute book next week. An imaginary threat has been cooked up, potentially rebellious ministers have been bought off with promises about the future, a secret deal has been done behind closed doors and now MPs will be whipped into doing what they're told.
It's the same cynical, listless, irresponsible process which took place during New Labour's time in office. And Miliband's participation in it does not suggest anything would change if Labour gets back into power. The idea parliamentary democracy provides a check on state power sometimes seems hopelessly naive.
