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Friday, 6 November 2015

Draft Investigatory Powers Bill (and UKIP Lawyers)

Taken from Kalvin Chapman's blog

On 4 November 2015 the UK Government announced its new snooper's bill.  This is the bill that regularises the unfortunate snooping being done that was essentially illegal, but as no one knew about it it didn't matter.  Then the US Government thought it was a good idea to try and shut Edward Snowden up - then try and kill him.  So, we found out everything about what the US and UK Government have been doing.  And, before you read this, this is not an exhaustive list.  It's just the most obnoxious shite I can find - it is, though, 300 pages long and frankly I have a box of chocolates sitting here that will not gorge on themselves.

If you are not angry by the time you finish this, you should be.

The Act has what you have heard - I am ignoring that because the media is covering the bits that the Government told them to cover.  I am covering the bits that needed someone to actually read the 300 pages.  There is a reason that a) there is a 35 page explanation before you get to the legislation (ie. you'll be bored to death so won't read further and the media will just borrow from that to write their articles) and b) no one will read 300 pages of legislation so the nasty bits won't become public.  They forget that UKIP has many lawyers amongst its ranks who just love reading 300 pages of legislation.

1.  Who has power?

One of the oddest things is that the Act allows a senior person in certain Government agencies to request communications data that the act requires telecommunications companies to keep for one year.  So, answer me this.  In Schedule 4, which lists these agencies (see page 2010 of the document) why are the following agencies entitled to request access to my highly sensitive data?

Dept of Health

Dept of Transport

National Health Service Business Services Authority

An NHS Trust

Scottish Ambulance Service

I can just about understand the Dept of Health or Transport - maybe.  But the NHS Business Services Authority?  The Scottish Ambulance Trust?

2.  Authorisation

The frightening part should not just be that these surreal agencies can get access, it is that the decision would normally be taken by the Secretary of State who would balance the needs of national security against your rights as an individual.  No, under section 67 the Secretary of State can make regulations (which therefore do not go before parliament) that will allow these public bodies to make the decision on her behalf.  Yes, the guy at your local council (see section 57) who wishes to investigate you because he is an idiot and mixed up your file with the yob who lives two doors down, he can authorise himself to carry out an investigation of you under section 46(7) by asking his mate at the council to make a decision only the home secretary should make, but which have been devolved down to him under section 67 regulations.

And do not think that this will not happen.  We know from the Snowden disclosures that the door being opened after 9/11 - and how many of us (including me) said that this only happened to allow the Governments to impose privacy invading laws - that door being opened has led to the security services doing whatever the hell they want.  And now, now the Government is handing down the right to spy on you and what you do on-line and in private down to your local council.  We all know what oafs and idiots work in councils up and down the country.  Why on earth does the Scottish Ambulance Service (but not the English or Welsh) need access to this for?  Why do they need powers to authorise the release of this data?  Do you honestly think it will not be abused?

3.  Extraterrestrial

I suppose this on its own is not a surprise.  But section 69 allows the Home Secretary to authorise disclosure and operations outside of the UK.  The problem is, she probably created this section in cahoots with her good old friends in the USA and every European country - all of which will have similar powers.  In other words, even if the UK Government is not snooping, similar provisions from other countries will allow them to snoop on you in the same way as section 69 allows Ms May to snoop on you abroad.  Just think of the issues relating to that, let it sink in.

4.  Section 46(7) Implications

Section 46(7) is the most important section, as it sets out what the Government is allowed to a disclosure (not fogretting that this may be devolved to all public bodies listed in Schedule 4 - including the Scottish Ambulance Service).  Section 46(7) says this:
Remember, detection or preventing a crime.  Do you know how many things can be made into a crime now?  If you decide that you want to hold a march against low pay for Junior Doctors you are potentially going to create a breach of the peace and consequently s. 46(7)(b) bites and the Senior Officer at the Scottish Ambulance Service can legitimately ask to see the last year's worth of facebook messages.  And do you think that the security services will not take massive advantage of that?  Do you think that a police officer who is mad with jealousy that his husband is carrying on with the neighbour - do you honestly think he won't be able to create a credit "crime" that would allow him access to yours or your neighbour's emails and facebook etc?  It has happened many times - this and the use of s. 67 can allow someone senior at the police station (see the Schedule 4 I mentioned earlier) to agree it.  No judge, no Home Secretary, no boring straight as an arrow mandarin who would stop such abuses.  No, PC Bloggs only needs to tell his officer that your neighbour is a drug dealer and hey presto.

We know from has happened since 2001 that we cannot take this on face value.  We know that it will be abused.  The security services no longer even need to get their own feet dirty - they can pressure poor old Jim at the Scottish Ambulance Service wit

Remember, detection or preventing a crime.  Do you know how many things can be made into a crime now?  If you decide that you want to hold a march against low pay for Junior Doctors you are potentially going to create a breach of the peace and consequently s. 46(7)(b) bites and the Senior Officer at the Scottish Ambulance Service can legitimately ask to see the last year's worth of facebook messages.  And do you think that the security services will not take massive advantage of that?  Do you think that a police officer who is mad with jealousy that his husband is carrying on with the neighbour - do you honestly think he won't be able to create a credit "crime" that would allow him access to yours or your neighbour's emails and facebook etc?  It has happened many times - this and the use of s. 67 can allow someone senior at the police station (see the Schedule 4 I mentioned earlier) to agree it.  No judge, no Home Secretary, no boring straight as an arrow mandarin who would stop such abuses.  No, PC Bloggs only needs to tell his officer that your neighbour is a drug dealer and hey presto.

We know from has happened since 2001 that we cannot take this on face value.  We know that it will be abused.  The security services no longer even need to get their own feet dirty - they can pressure poor old Jim at the Scottish Ambulance Service with photos of him having sex with a prostitute and he will abuse his s, 67 rights without batting an eye lid.  And if it goes tits up it won't be the security services that get the blame, will it?

4.  Massive Abuse

I note above that someone wishing to access the sensitive data would have to go and ask a senior authorised person for agreement (subject to him having the rights under regulations made under s. 67).  However, as with everything, under s. 47(2) he can grant himself the right to access it if: But, if the designated senior officer considers that there are exceptional circumstances which mean that subsection (1) should not apply in a particular case, that subsection does not apply in that case.

Reckon that won't get abused much?

The authorisation lasts only for one month, but can be renewed "at any time" during the period it is live.  So, effectively, it is open ended.  There is no long-stop date, so if necessary it could go on for 100 years so long as it was renewed monthly.  There is no regulation that requires a periodic review of why an authorisation is constantly being re-authorised.  Essentially, they put a safeguard in it (one month) but left the back door wide open with no safe-guards.

The only potential is s. 50.  If a communications company refused to hand over the data then the home secretary (or presumably any body that she has devolved the powers to under s. 67) can issue an injunction and it would need to be resolved by a Judge.  But is there anything a company could do to defeat this?  I cannot see anything - if there is a notice then it must be complied with, there are no grounds for refusing.

5. More Massive AbuseOn 4 November 2015 the UK Government announced its new snooper's bill.  This is the bill that regularises the unfortunate snooping being done that was essentially illegal, but as no one knew about it it didn't matter.  Then the US Government thought it was a good idea to try and shut Edward Snowden up - then try and kill him.  So, we found out everything about what the US and UK Government have been doing.  And, before you read this, this is not an exhaustive list.  It's just the most obnoxious shite I can find - it is, though, 300 pages long and frankly I have a box of chocolates sitting here that will not gorge on themselves.

If you are not angry by the time you finish this, you should be.

6. 61 Commissioner approval for authorisations to identify or confirm journalistic sources

This section I think typifies why I really loath Teresa May.  This section allows authorisations to be made to allow the sources of journalists to be identified.  There has always been a maxim that journalism is outside of the purview of politicians because the sign of a democratic country is a free press.  S. 61 erodes that substantially.  I would expect this from Iran or Saudi Arabia - but we will live in the UK.  We should not be allowing journalistic freedoms to be quashed simply because the security services could not nail the Guardian when it was releasing the Snowden disclosures.  To my mind, this is the sickest part of this bill and I hope that every person who reads this gets angry.

I cannot do any more.  I am so angry.  I may do some more tomorrow.

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