Thursday, 21 April 2016

How Mass Surveillance Trickles Down

No Snooping (Theresa May)
Mass surveillance is no longer the talk of the tinfoil hat brigade. It is all-encompassing and all-pervasive. Laws enacted in the wake of the 9/11 atrocity that were intended to prevent terrorism are now being used for a plethora of purposes. Let's take a closer look at the main ones.

Multi-agency smorgasbord

The main aim of the IP Bill is to provide an at-a-glance smorgasbord of information to anyone who wants it, including businesses. The Investigatory Powers Bill comfortably passed votes by 281 to 15 during its second reading on 16th March this year.

Causes for concern

One of the few people with any objections was Shadow Home Secretary Andy Burnham, who was most concerned about six areas:

  • Privacy
  • Specific powers
  • Internet Connection Records
  • Bulk Powers
  • Judicial oversight
  • Misuse of the powers

The bill is currently in the committee stage, where it has already been waved through on the grounds that anybody who objects and doesn't have security clearance and hasn't worked for GCHQ or the Home Office can safely be ignored. Indeed, the greatest causes for concern were not the ones outlined by tech expert Eric King, who gave evidence to the committee on 12th April this year, but that they weren't particularly interested in paying attention to anything he said. The way he was treated at the committee meeting beggars belief. It's ridiculous how rude some of those people were to the man. Like it or not, he's right. There are so many ways of abusing the opportunity to snoop on an individual, and only oversight theatre to protect us from it. Don't worry, it'll all be perfectly legal when they've retrospectively made it so, which wouldn't be the first time that happened. The UK Parliament website has a list of the debates here.


Given the sense of entitlement that slurps up whatever humanity an individual has whenever the term "intellectual property" is used, this shouldn't be in the least bit surprising, but the new "investigatory powers" are already being deployed against those enemies of the people, copyright infringers.

Spooks protect the Preciousss copyright

It was a little-noticed story in the Entertainment and Oddities section: The GCHQ is using its spying network to help the copyright industry prevent “unauthorized distribution of creative works” – meaning ordinary people sharing interesting things with each other. - So GCHQ is already spying on behalf of the copyright industry. Why isn’t there an outcry over this change of mission? By Rick Falkvinge for Privacy Online

Apparently it is they, not the banksters, who "harm the economy," or something. Now where have we seen this before? Oh, yes, the City of London police. And when I wrote to my then MP Hazel Blears to complain about it, she dutifully passed my message on to the relevant authority, who went "Meh!" and that was the end of the discussion. Make no mistake, Labour, and the Blairite faction in particular, is all for this. So much for fighting terrorism.

Cross-border cooperation

The EU is often held up by the Remain faction as a champion of human rights, and our last bulwark against state intrusion into our personal lives. Erm, no they're not. Indeed, they are as keen as our own domestic government to ramp up surveillance on each and every one of us for fear of terrorism and of ISDS.

But terrorism!

The indiscriminate bulk collection of every passenger who boards a plane is in the process of being promoted as a tool against terrorism despite the fact that it only creates a massive haystack for law enforcement to wade through in search of suspects. Needless to say, all concerns are being waved away by enthusiastic supporters of the programme.

“Our data systems must be complementary, searchable, interoperable, and interconnected with one single click,” EU commissioner for home affairs Dimitris Avramopoulos told reporters in Luxembourg, where EU interior ministers are meeting.

He said the system would be developed “within the framework of gradually developing a single searchable interface to facilitate the job of law enforcement authorities”. - EU wants 'single-click' police access to personal data, by Nikolaj Nielsen for EU Observer

That sounds exactly what the British authorities are in the process of doing here. And needless to say, there's little in the way of oversight or protection from abuse.

Digital single market

With their eyes on the prize of "a digital single market" you can forget getting any help from those alleged champions of privacy at the EU. Indeed, the European Commission is dead keen on boosting innovation, etc., by creating new standards that ensure interoperability in emerging technology. This sounds great until you realise they're not that keen on Open Source. Here's the problem:

ICT standardisation requires a balanced IPR policy, based on FRAND licensing terms. Various debates at European and international level are currently taking place with varying approaches being considered. A balanced policy should take into account a variety of needs: fair return on investment to incentivise R&D and innovation, a sustainable standardisation process, wide availability of technologies in an open and competitive market, and the difficulty for SMEs to participate. - EU Commission Communication: ICT Standardisation Priorities for the Digital Single Market

This seems perfectly reasonable until you realise what FRAND means here: basically, the per-copy licencing requirements would be impossible to implement where Open Source programs are deployed, which automatically excludes it from the Digital Single Market strategy.

The European Commission's retrograde step is presumably the result of yet more lobbying—some companies never give up. What's truly regrettable is that the proposed new Digital Single Market standards will not only fail to foster the hoped-for innovation from local companies, but will see the region's high-tech sector become even more in thrall to the US giants that will be able to use their big patent portfolios and FRAND licensing to threaten and throttle innovative open source startups from the EU. - Anti-innovation: EU excludes open source from new tech standards, by Glyn Moody for Ars Technica

As designer and social entrepreneur Aral Balkan said:
Remember how one of the more problematic clauses of ACTA was its insistence on "preventing infringement?" TTIP and CETA are just around the corner and their IPR clauses are locked in. Most activists I know are too caught up with fending off ISDS to consider that aspect but I haven't forgotten it. I'll leave it to you to work out what this means:

...ensure that TTIP includes an “ambitious” intellectual property rights chapter with strong protection for “precisely and clearly defined areas of IPR, including enhanced protection and recognition” of European geographical indications... European Parliament Trade Committee Tries To Defuse TTIP Controversy But Outcome Remains Uncertain, by Dugie Standeford for Intellectual Property Watch

in the cold clear light of this little tidbit:

TTP’s investment chapter classifies intellectual property as a type of investment. If a similar clause appeared in the TTIP, investors would be able to take EU governments to court in the event of their intellectual property being “expropriated”. This is despite the fact that, as all IP lawyers know, intellectual property is not a type of investment.

...the intrusion of ISDS into the field of IP law has already begun. In 2013, the American pharmaceutical company Eli Lilly filed a legal action against Canada at a NAFTA court. Eli Lilly argued that the Canadian courts' invalidation of two of their patents – due to insufficient evidence of the drugs’ stated benefits – was a violation of the treaty’s expropriation rules. - How the secret TTIP trade deal could enable companies to sue countries, by Dr Luke McDonagh for City University London News

Basically, we'd better be sure to increase and enhance IPR laws in favour of incumbents or they'll sue us using ISDS for "unfair expropriation." Bear in mind that no one has to win for this to create a chilling effect on legislation in the public interest, the mere threat of a lawsuit can be enough to make any government think twice about promoting Open Source.

Fighting crime and criminality

Make no mistake, the possibility of being able to store and access the most personal information on any individual to expose their habits, associates, and interests offers too many possibilities to be ignored. That said, the most dedicated law enforcement snooping can backfire badly if procedural requirements aren't met. This is not some numbnut whining, "'S more 'n me job's worth," this is about the importance of upholding the rule of law. The main reason why our law enforcement agencies, in whatever country they operate, have developed such a cavalier attitude to due process is because they believe it gets in the way of getting justice done. Therefore, an "ends justify the means" mentality takes over, and when it does it's hard to shift.

What can we do?

The Open Rights Group is running a campaign to convince our government that there are better ways of sharing data without compromising people's privacy. They have posted a link for us to take part in a consultation here, which ends tomorrow 22nd April. I'd also recommend contacting your MP.

The trouble with mass surveillance is that it trickles down. Mission creep is a problem; having all that information at your fingertips tends to make you wonder why it should only be used to tackle one group, and not another. Next thing you know, it's being used to track down errant rubbish leaving. I mean, why not? But that's the problem. Unless you want to be ruled by tinpot dictators who can find out anything they want to know about you because there's nothing to stop them from getting hold of your data, push back now while you still can.

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