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The Snoopers Charter and Apple
The unfolding drama of the San Bernardino iPhone and the 174 NYC Phones has brought many column inches and much serious and more than occasionally, flawed opinions to the fore.
Passionate debate has raged and the 'bigger picture' has always been touted, talking of the outlawing of end to end encryption. Our slackroom has been split by opinion and conjecture on the possible outcomes and whether precedent is being set or not and on and on.
The Problem
The real problem has been two fold.
Firstly, the micro details have been used to grind the macro effect. People are taking a small iPhone case and using it in the wider encryption debate and trying to fit the square pegs that are used in that into the round holes that is the wider debate. This is the main key of the divisive discussion in our own slackroom with people continually looking to hold up the larger argument using relatively small and futile facts. This has also been the MO of Apple and the FBI in their handbagging over this phone. What that causes is the use of emotive terms and the polarisation of opinions with few moderates being allowed to have an opinion and logically argue the merits of each side.
Secondly, the arguments that pervade have a tendency to forget the legal process which underpins the proceedings at San Bernardino and NYC and also would pertain to our own legal system. They are also forgetting the isolation of these issues and then to separately recognise where the broader issues are served.
The Snoopers Charter
Enter The Snoopers Charter in the UK...the end game of government and the reason that I have been banging on and on and on about the respect of the judiciary and the avoidance of marginalising their influence on the process of oversight in the US System, because we have already lost it In a great many instances here in the UK.
The Draft Communications Bill (the correct title) will be laid before parliament this year and will broadly expand the powers for enforcement bodies like Police, Security Services, Revenue & Customs and Ministry of Defence. The Regulation of Investigatory Powers Act (RIPA) will also be heavily amended by the bill expanding the opportunity for 'requests for information' for the enforcing authorities.
In essence, the DCB will require all ISPs to hold data on all users internet habits for a 12 month period. All phone operators will also maintain records of all mobile phone activity and communications and the movements of those devices via inbuilt GPS modules.
The justification of this legislation is that in the past year alone requests for individual access to information have become too numerous and the data load of that information has increased 10 fold in the same period making it impossible to keep. Especially when ISPs are not mandated by law to hold these records (currently they are only required to hold contact data for email and phone/messaging). This has resulted in an overall decline in request compliance of around 45%-60% against the total data available (or not).
RIPA
The current RIPA requirements do not require the need for judicial oversight as it is. Requests for warrants and information are already dealt with by the Home Secretary, The Cabinet Secretary for Justice or in many cases Senior Officers within the enforcing authorities but this will change and eventually this will allow Senior Officers to authorise and allocate information searches on a month by month basis to the investigating officers in any particular case. Justification must be provided and recording of access will no doubt form the basis of the oversight that will ensue but in essence the data will become 'open to an investigation' much more easily and not on a single request for single item basis as it currently is.
Benefits
Speed of access to information will be increased and in critical cases may be almost instantaneous when there is threat to life or imminent risk through terrorism etc.
At the moment many criminal groups can easily hide behind encrypted and key locked devices and even with requests for information hitting around 30,000 per year the pace of information in very real circumstances can cause delays and open risks and allow serious criminals to slip through the net.
The really good news, is that your enforcing authorities are highly unlikely to care about your porn surfing habits unless it's of an extreme nature and likely illegal. Also the messages to your illicit lover are unlikely to gain authority from Senior Officers and return to your spouse.
Drawbacks
In essence this process could provide for a huge database of detailed information about you.
Online banking would be able to be stored and all communications, in detail, would also be held. This would be the 'glittering prize' for any hacker group or criminal syndicate who are interested in obtaining such details to empty accounts
As with all groups, enforcing authorities are not free of a small section of people who have a moral fibre not dissimilar from the very people that they are looking to 'catch' and the issues of the sale of information to the press in recent years will leave many people feeling that this is a reach too far in terms of loss of privacy.
Bearing in mind also that this will almost certainly ensure that access to information can be by political parties who hold government, there is a risk that those who are vocal in their opposition or in some way subversive could be easily silenced through leaks of information and
secrets to which they would rather the press did not have access.
Apple
Where do Apple stand on this?
Is Tim coming to the UK to fight our corner? Will Tim refuse to allow Apple to sell iPhones to the UK if unbreakable end to end encryption is effectively outlawed? Will Tim stand in the dock and defend our rights? Or is he only interested in the issues facing the American Market and Americans?
My View
Personally I'm torn.
The access granted without judicial oversight undoes all the faith I had in the doctrine of the checks and balances I understood and respected. The separation of Government, Legislature and Judiciary and their balance of power over each other has been under constant erosion with alarming speed for the last 20 years. The effect of judiciary on government is at its weakest in history and that's not a good thing.
However, I do understand the frustration of the sheer volume of data that is generated and which may hold either, outright evidence of horrific wrong doing or, tangible leads for security services to follow and the possible prevention of terrible attacks on society.
I'm also not in favour of the unlockable box. At any point in our lives, we are all open to the scrutiny of our state when there is reasonable suspicion of wrong doing available. I just wish that my digital life wasn't open to those enforcing without a 'Gamekeeper' offering some protection
Ewen
Author
Ewen Rankin