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| Snooper's bill faces enforcement hurdles | Snooper's bill faces enforcement hurdles |
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| The British government wants the support of technology firms for its “snooper’s charter” surveillance bill, yet that bill could end up being undercut by the US decision to back off in its own fight with the tech firms and also leave UK consumers free to guard their communications in such a way that no government can compel disclosure. | The British government wants the support of technology firms for its “snooper’s charter” surveillance bill, yet that bill could end up being undercut by the US decision to back off in its own fight with the tech firms and also leave UK consumers free to guard their communications in such a way that no government can compel disclosure. |
| The home secretary, Theresa May, this week invited the biggest US internet firms and British telecoms providers to a meeting to seek their support for the legislation, officially known as the draft communications data bill. | The home secretary, Theresa May, this week invited the biggest US internet firms and British telecoms providers to a meeting to seek their support for the legislation, officially known as the draft communications data bill. |
| The legislation is expected to include powers that will require firms to collect and store for 12 months the browsing history of users, along with records of voice calls, messages and text services. It might also require firms to give the police and security services access to the data. | The legislation is expected to include powers that will require firms to collect and store for 12 months the browsing history of users, along with records of voice calls, messages and text services. It might also require firms to give the police and security services access to the data. |
| Related: MI5 chief calls for more up-to-date surveillance powers | |
| But requirements to store browsing history can do nothing if the communications are encrypted, as are an increasing proportion of online services. More and more web surfing is done through a secure connection, represented on the web to the user by the https prefix in a browser address bar. | But requirements to store browsing history can do nothing if the communications are encrypted, as are an increasing proportion of online services. More and more web surfing is done through a secure connection, represented on the web to the user by the https prefix in a browser address bar. |
| Use of those connections used to be limited to ecommerce and online banking, but through tools such as the HTTPS Everywhere plugin, as well as security requirements from firms such as Apple, use is now widespread. | Use of those connections used to be limited to ecommerce and online banking, but through tools such as the HTTPS Everywhere plugin, as well as security requirements from firms such as Apple, use is now widespread. |
| Companies including Facebook, Twitter and Google, now offer secure connections by default, and in June the White House announced a policy pushing all federal websites to do the same. | Companies including Facebook, Twitter and Google, now offer secure connections by default, and in June the White House announced a policy pushing all federal websites to do the same. |
| While secure web connections do not prevent ISPs (and, by extension, police and security services empowered by the new bill) from identifying domains visited – such as Google.com or Facebook.com – it does prevent their seeing which pages on a site were visited, as well as any data exchanged. | While secure web connections do not prevent ISPs (and, by extension, police and security services empowered by the new bill) from identifying domains visited – such as Google.com or Facebook.com – it does prevent their seeing which pages on a site were visited, as well as any data exchanged. |
| That information remains available to websites, which can be legally compelled to hand it over, but increasingly communications technologies are designed so that even the developers cannot aid law enforcement. | That information remains available to websites, which can be legally compelled to hand it over, but increasingly communications technologies are designed so that even the developers cannot aid law enforcement. |
| Apple’s iMessage and Facebook’s WhatsApp, for instance, are both secured using “end-to-end” encryption. A message sent from Alice’s iPhone to Bob’s phone is encrypted using Bob’s “public key” before it even reaches Apple’s servers. If the company were told to intercept Alice and Bob’s communications, it would be unable to read the messages sent between them, even though they travel through its servers. | Apple’s iMessage and Facebook’s WhatsApp, for instance, are both secured using “end-to-end” encryption. A message sent from Alice’s iPhone to Bob’s phone is encrypted using Bob’s “public key” before it even reaches Apple’s servers. If the company were told to intercept Alice and Bob’s communications, it would be unable to read the messages sent between them, even though they travel through its servers. |
| In September, just such a case occurred. Apple was forced to decline a US justice department order to eavesdrop in a case involving drug dealers. Apple was unable to give live access to the messages, though it was able to provide some information by reading messages stored in a different, unencrypted, format in one of the suspect’s iCloud backups. | In September, just such a case occurred. Apple was forced to decline a US justice department order to eavesdrop in a case involving drug dealers. Apple was unable to give live access to the messages, though it was able to provide some information by reading messages stored in a different, unencrypted, format in one of the suspect’s iCloud backups. |
| US law enforcement has been pushing against this sort of encryption by technology firms. The head of the FBI has demanded that companies insert “backdoor access” to their communications to help in the fight against Islamic State (Isis). | US law enforcement has been pushing against this sort of encryption by technology firms. The head of the FBI has demanded that companies insert “backdoor access” to their communications to help in the fight against Islamic State (Isis). |
| But the battle has been gradually going the way of the tech companies, and on Wednesday the Washington Post reported that the White House had backed away from trying to deal with the issue through legislation. | But the battle has been gradually going the way of the tech companies, and on Wednesday the Washington Post reported that the White House had backed away from trying to deal with the issue through legislation. |
| If the White House does drop the battle it will leave Britain with little option but to accept the widespread use of encryption. The UK’s ability to directly lobby the big American technology firms is limited, and in a report leaked in June the former British diplomat Sir Nigel Sheinwald said that a new international treaty was the only way to get the co-operation of the companies. Without the support of the White House such a treaty seems unlikely. | If the White House does drop the battle it will leave Britain with little option but to accept the widespread use of encryption. The UK’s ability to directly lobby the big American technology firms is limited, and in a report leaked in June the former British diplomat Sir Nigel Sheinwald said that a new international treaty was the only way to get the co-operation of the companies. Without the support of the White House such a treaty seems unlikely. |
| Without the co-operation of the tech firms what the UK government can do when facing widespread encryption is limited. In June the Home Office confirmed that, for extreme cases, it was considering inserting “black box” probes into the transatlantic cables, to collect data leaving and entering the UK. But if the communications were encrypted on their way to the US, such collection would have little value. | Without the co-operation of the tech firms what the UK government can do when facing widespread encryption is limited. In June the Home Office confirmed that, for extreme cases, it was considering inserting “black box” probes into the transatlantic cables, to collect data leaving and entering the UK. But if the communications were encrypted on their way to the US, such collection would have little value. |
| Nicholas Lansman, secretary general of the Internet Service Providers’ Association, the industry body for UK providers, has said that the laws on communications interception are too complex, but that any change should leave “appropriate safeguards” in place. | Nicholas Lansman, secretary general of the Internet Service Providers’ Association, the industry body for UK providers, has said that the laws on communications interception are too complex, but that any change should leave “appropriate safeguards” in place. |
| “ISPA believes that law enforcement should have reasonable access to communications data as long as the governing legislation has appropriate safeguards, and oversight arrangements, and does not damage inward investment and the UK’s position as a leading place to do business online,” Lansman said. | “ISPA believes that law enforcement should have reasonable access to communications data as long as the governing legislation has appropriate safeguards, and oversight arrangements, and does not damage inward investment and the UK’s position as a leading place to do business online,” Lansman said. |
| The ISPA is calling on the Home Office “to follow the advice of parliament and consult with industry and the wider internet community on the investigatory powers bill”, and says “it is important to get the balance right between privacy, security, maintaining user trust and the cost to industry, as key issues such as retaining third party data, judicial oversight and data hosted abroad, are discussed”. | The ISPA is calling on the Home Office “to follow the advice of parliament and consult with industry and the wider internet community on the investigatory powers bill”, and says “it is important to get the balance right between privacy, security, maintaining user trust and the cost to industry, as key issues such as retaining third party data, judicial oversight and data hosted abroad, are discussed”. |
| The split between how the UK and US each sees encryption and security, and in how they engage with the tech firms, highlights the increasing difficulties in regulating transnational tech companies. | The split between how the UK and US each sees encryption and security, and in how they engage with the tech firms, highlights the increasing difficulties in regulating transnational tech companies. |
| As Europe has found with Brussels’ clash with Facebook over user tracking, with the “right to be forgotten” battle with Google, and with the EU’s antitrust investigation, fitting local rules to companies whose users are located around the world is not a simple task. For an individual country like Britain to do so, it will be even harder. | As Europe has found with Brussels’ clash with Facebook over user tracking, with the “right to be forgotten” battle with Google, and with the EU’s antitrust investigation, fitting local rules to companies whose users are located around the world is not a simple task. For an individual country like Britain to do so, it will be even harder. |