Original URL: http://www.theregister.co.uk/2012/12/11/draft_communications_data_bill_joint_committee_report/

Parliament: Snoop Charter plan 'too sweeping', 'misleading', 'suspicious'

'Goes much further than it need or should'

By Kelly Fiveash

Posted in Law, 11th December 2012 05:55 GMT

Theresa May's communications data draft bill is far too broad and needs to be slimmed down, concluded MPs and peers who have spent many months scrutinising the Home Secretary's lambasted plans to massively increase the surveillance of online activity in the UK.

The joint committee, chaired by Lord Blencathra, said:

Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft bill is too sweeping, and goes much further than it need or should.

We believe that, with the benefit of fuller consultation with CSPs [communications service providers] than has so far taken place, the government will be able to devise a more proportionate measure than the present draft bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less.

A 101-page report published by the committee this morning highlighted many shortcomings in May's draft bill, which was tabled in June this year.

Among other things, it noted that there appeared to be a lack of ability among cops to make "effective use" of the data that is already available and recommends that this matter be addressed as a "priority". The report added that no fresh law would be required for this but that additional costs would be involved.

The committee said that more consultation was needed among technical experts, police bodies, public authorities and civil liberties groups and that those talks should be shaped around a "narrower, more clearly defined set of proposals on definitions." It also recommended that the bill should make it clear exactly why a gap in surveillance needs to be filled.

The peers and MPs said:

It is acknowledged on all sides that the volume of communications data now available is vastly greater than what was available when RIPA [the Regulation of Investigatory Powers Act 2000] was passed. The much quoted [Home Office] figure of a 25 per cent communications data gap purports to relate to data which might in theory be available, but currently is not.

The 25 per cent figure is, no doubt unintentionally, both misleading and unhelpful.

The report also warned that communication service providers needed reassurances about the retention of data as laid out in May's draft bill. It said:

"Even though many of them [CSPs] are prepared to cooperate on a voluntary basis, they should also be told what obligations might be imposed on them. For many, their willingness to cooperate voluntarily will be reinforced if there is a statutory basis for the requirement."

The report called on Clause 1 of the draft bill [PDF] to be rewritten with a "much narrower scope, so that the Secretary of State may make orders subject to Parliamentary approval enabling her to issue notices only to address specific data gaps as need arises."

The Home Office wanted to keep clause 1 wide, May has argued, to "future proof" the law to allow for access to new types of data that may emerge. The committee dismissed that suggestion, however, and said:

"We do not accept that this is a good reason to grant the Secretary of State such wide powers now. We do not think Parliament should grant powers that are required only on the precautionary principle. There should be a current and pressing need for them."

The report noted that the Home Secretary may in future need the power to require the retention of other data types, but it urged caution in how any law relating to that need might be introduced.

"Parliament and government both need to accept that legislation that covers the internet and other modern technologies may need revisiting and updating regularly," the committee said.

The MPs and peers recommended that this might be done via an order subject to the super-affirmative procedure to guarantee greater parliamentary scrutiny than a standard affirmative order, which is currently proposed in the bill. If the committee's method is adopted by the Home Office the process could take anything up to nine months to be scrutinised by those sitting in the Lords and the Commons.

The report questioned whether that clause should allow notices that require CSPs to retain web logs up to the first "/". The politicos and peers said such a plan posed a "fundamental question" about the draft bill and added that parliamentarians needed to debate that issue further.

'Unacceptable risks to the privacy of individuals'

Civil liberties groups have expressed concern about the notion of spooks and cops being granted access to web logs that might be considered a "highly intrusive form of communications data", the joint committee noted. It has been suggested that such access could give rise to "unacceptable risks to the privacy of individuals".

The MPs and peers want to strengthen the safeguards detailed in the draft bill and said:

We acknowledge that storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people's interests or activities could be drawn. Parliament will have to decide where the balance between these opposing considerations should be struck.

The technical feasibility and cost effectiveness of CSPs retaining web logs only on certain types of web services was also brought into question in the report with a recommendation that the Home Office examined such a plan.

Alarm bells were sounded over those overseas providers who refuse to comply with retention notices laid out by security agencies in the UK, which would - under the current plan - lead to Blighty-based CSPs having to keep "third party data traversing their networks". Telcos are said to be "very nervous about these provisions."

The report said:

"The Home Office has given an oral commitment to UK CSPs that the Home Secretary will invoke the third party provisions only after the original data holder has been approached and all other avenues have been exhausted. The Home Office has also given a commitment that no CSPs will be asked to store or decrypt encrypted third party data."

The committee urged: "These commitments should be given statutory force."

On the topic of who should be granted access to comms data, the report points out that 10 permitted purposes are listed on the bill and says that Clause 9(7) allowing the Secretary of State to add further permitted purposes by order "should be deleted".

The politicos said that the language of RIPA was outdated and should not be used as the basis on a new law on monitoring the web activity of British citizens.

The report noted "the challenge will lie in creating definitions that will stand the test of time." It advised further confabs with the tech industry to determine the right terminology for the bill.

It went on to say that May's draft law was "particularly problematic" when it comes to subscriber and traffic data definitions.

The report said:

"Currently the definition of subscriber data could be read to cover all sorts of data that social networks and other services keep on their customers which can be highly personal and is not traditionally thought of as communications data."

Concern was also expressed by the committee about the lack of definition for the word "content" within the draft bill.

"Although it may not be possible to define content clearly beyond the fact that it is the 'what' of a communication, it is nevertheless important that the content should be expressly excluded from all categories of communications data."

Meanwhile, the committee recommended that the single point of contact (SPOC) authorisation process for accessing comms data "should be enshrined in primary legislation." It called on the creation of a SPOC service modelled on the National Anti-Fraud Network service, which advises local authorities.

The MPs and peers said a new surveillance commission which would be armed with "multi-skilled investigators and human rights and computer experts" should be considered.

Costs estimated in the draft bill relating to the security and destruction of data needed further assessment, the committee said - and it suggested that the Home Office's current figures may be an underestimation of the true costs involved with those processes.

The overall cost of the entire system over the course of 10 years has been estimated to be £1.8bn - a figure the committee has labelled as "fanciful".

And - as if to underscore the MPs and peers' frustration at the Home Office - the report noted:

The CSPs will incur costs mainly for retaining, securely storing, accessing and ultimately destroying communications data, but also for matters such as training. The Home Office gave a figure of £859m over 10 years for reimbursing the additional costs to the private sector.

This is nearly half of the overall figure of £1.8bn. However this figure must be highly suspect, because it was calculated with little or no input from the CSPs.

Last week, May attempted some last minute lobbying to get people to support her bill by telling the Sun newspaper that her planned law would "save lives" by flushing out terrorists and paedophiles. ®