Cindy Cohn is alarmed by the shift towards mass surveillance in the UK government’s “snooper’s charter”
(more…)
A new report
from Index on Censorship raises the alarm proposed legislation that could lead to unprecedented and chilling surveillance of British citizens under the Investigatory Powers Act.
Clause 122 of the Online Safety Bill provides Ofcom the means to break encrypted messaging services through ‘technology notices’ served without legal oversight. Once ‘Accredited Technology’ is used to break encryption, the Home Office has the power to use “bulk surveillance warrants” under the Investigatory Powers Act: providing access to encrypted private messages en masse for the first time.
Without urgent clarification in Parliament, there is a risk that security services such as MI5 can compel technology companies who operate encrypted messaging services to interfere with user communications or acquire masses of data in secret. There is no clarity to date on whether Ofcom would be notified under such circumstances nor whether Ofcom themselves could be subjected to a bulk surveillance warrant as a result of the data insights they gain in their role as an independent regulator.
The long-standing campaign against the use of encryption technology has now seemingly culminated in a two-pronged legislative attack against British rights to privacy and freedom of expression. This report outlines the (1) meaning of new enforcement powers under the Online Safety Bill, (2) the Surveillance Gateway that is being opened, (3) proposed reforms to the Investigatory Powers Act and (4) the key questions that Parliament urgently needs answers on.
On Monday, 11 September 2023, the House of Commons will review the Online Safety Bill for the first time in nine months in which they will decide whether they accept the Government’s amendments to introduce mass surveillance on British people and to sign off on a massive curtailment of journalistic freedoms.
Download the report here or read it below.
There has been significant commentary on the flaws of the Online Safety Bill, particularly the harmful impact on freedom of expression from the concept of the ‘duty of care’ over adult internet users and the problematic ‘legal but harmful’ category for online speech. Index on Censorship has identified another area of the Bill, far less examined, that now deserves our attention. The provisions in the Online Safety Bill that would enable state-backed surveillance of private communications contain some of the broadest and powerful surveillance powers ever proposed in any Western democracy. It is our opinion that the powers conceived in the Bill would not be lawful under our common law and existing human rights legal framework.
Index on Censorship has commissioned a legal opinion by Matthew Ryder KC, an expert on information law, crime and human rights, and barrister, Aidan Wills of Matrix Chambers. This report (a) summarises the main legal arguments and analysis; (b) provides a more detailed explanation of the powers contained in Section 104 notices; and (c) lays out the legal opinion in full.
The legal opinion shows how the powers conceived go beyond even the controversial powers contained within the Investigatory Powers Act (2016) but critically, without the safeguards that Parliament inserted into the Act in order to ensure it protected the privacy and the fundamental rights of UK citizens. The powers in the Online Safety Bill have no such safeguards as of yet.
The Bill as currently drafted gives Ofcom the powers to impose Section 104 notices on the operators of private messaging apps and other online services. These notices give Ofcom the power to impose specific technologies (e.g. algorithmic content detection) that provide for the surveillance of the private correspondence of UK citizens. The powers allow the technology to be imposed with limited legal safeguards. It means the UK would be one of the first democracies to place a de facto ban on end-to-end encryption for private messaging apps. No communications in the UK – whether between MPs, between whistleblowers and journalists, or between a victim and a victims support charity – would be secure or private. In an era where Russia and China continue to work to undermine UK cybersecurity, we believe this could pose a critical threat to UK national security.
The King’s Counsel’s legal opinion includes that:
● Section 104 notices amount to state-mandated surveillance because they install the right to impose technologies that would intercept and scan private communications on a mass scale. The principle that the state can mandate the surveillance of millions of lawful users of private messaging apps should require a much higher threshold of legal justification which has not been established to date. Currently this level of state surveillance would only be possible under the Investigatory Powers Act if there is a threat to national security.
● Ofcom will have a wider remit on mass surveillance powers of UK citizens than the UK’s spy agencies, such as GCHQ (under the Investigatory Powers Act 2016). Ofcom could impose surveillance on all private messaging users with a notice, underpinned by significant financial penalties, with less legal process or protections than GCHQ would need for a far more limited power.
● Questionable legality: The proposed interferences with the rights of UK citizens arising from surveillance under the Bill are unlikely to be in accordance with the law and are open to legal challenge.
● Failure to protect journalists: if enacted, journalists will not be properly protected from state surveillance risking source confidentiality and endangering human rights defenders and vulnerable communities.
The disproportionate interference with people’s privacy identified by the legal analysis paints an altogether different picture of the Online Safety Bill. Far from being a law to establish accountability for online crime, the legislation, as drafted, opens the door for sweeping new powers of surveillance with little public debate over their purpose and proportionality. Unless the government reconsiders or parliament pushes back, these powers are set on a collision course with independent media and journalism as well as marginalised groups.
Download this new legal opinion on the Online Safety Bill here
[vc_row][vc_column][vc_single_image image=”114740″ img_size=”full” add_caption=”yes”][vc_column_text]“Someone has to say enough is enough,” said Shabana Mahmood, a member of parliament (MP) from the UK in a speech she delivered last night in the British parliament about the genocide of the Uighur people from the Chinese province of Xinjiang.
“The Chinese government continue unhindered with a campaign of what can only accurately be described as genocide, but where we should expect leadership and action, there is only a yawning void.”
Mahmood said the testimonies from Uighurs are “ever more disturbing”, citing a recent ITV news item in which a doctor spoke of forced sterilisation and abortion (in one instance a baby was still moving when it was discarded into the rubbish) and a man spoke of torture so extreme that he passed out. These are not isolated examples. It is estimated that at least one million people are incarcerated in camps across the region, while the millions of others who are not in a camp are subject to constant harassment and are living under extreme surveillance and control, right down to the language they speak.
“The charge sheet is long and horrific,” said Mahmood.
Mahmood mentioned new Disney movie Mulan, which was filmed in the province, as “one of the most striking examples of choosing to look away” and said there was a savage irony given the story of Mulan is one of family and emancipation.
“We should all be alarmed and appalled by what we are seeing, but we should all also resolve to forge a path forward for Uighur freedom,” argued Mahmood, who said this path involves various approaches, such as corporate and government accountability. We “cannot allow the fruits of forced labour to end up on our shores and in our homes”, she said, adding: “The Chinese Communist Party has busily been buying up influence and the silence of other countries.”
She also spoke of legal avenues, including those that have been used in recent years to help the Rohingya from Myanmar.
“History will judge us for the unforgivable lack of action thus far,” said Mahmood.
Many of these moves Mahmood called for were at a governmental level. What can we as individuals do?
1) Shout about it
Yes, a Tweet and a Facebook post are easy, but they are still better than nothing. We must use our words, especially when those in Xinjiang are being so woefully deprived of theirs. This is not to say that if we remain silent we are complicit. As the philosopher Julian Baggini wrote for the magazine earlier this year: “There are innumerable injustices around the world. Save for a handful of full-time activists and professionals in organisations such as Index, the finite supply of time ensures that most of us are silent about the vast majority of them.” Baggini specifically mentioned the Uighurs. But he also spoke about the concept of a “speech act”. “The key idea is very simple: words do not only convey information, they can actually do things. When a boss says ‘You’re fired’, a person loses their job. When a male manager says something misogynistic, he diminishes the status of female colleagues and makes their opinions count for less.” We can, through our words, foster an environment in which these actions are not condoned, in which Chinese officials find it increasingly difficult to go on live television and claim the atrocities are not happening, and in which world leaders struggle to continue their inaction.
2) Be wise to where our products come from
We at Index do not advocate outright banning – it goes against what we stand for. But nor do we promote companies and organisations involved in exploitation and human rights abuses. In an interview earlier this year about companies working with China, Yaqiu Wang, a senior researcher at Human Rights Watch, said: “By caving into the Chinese demands you are putting your values [aside] – social responsibility, freedom. It is really corrosive. You are affecting global freedom of speech.” As a consumer it’s difficult to know where everything comes from. That said, with each passing day evidence emerges linking major global brands to slave labour in Xinjiang. As consumers we can speak through our wallets. We can buy from the brands that we know aren’t complicit in the genocide; we can watch movies that aren’t filmed in the province. And we can support organisations like End Uyghur Forced Labour who are working hard to expose these links. We have choices here.
3) Protest on the streets
Live in London? The Chinese Embassy is located at 31 Portland Place, W1B 1QD. That’s a great place to start. Index have documented over the years countless examples of protest working, whether it’s a single person campaigning from their home or millions coming together. There’s a reason governments are so keen to control and clamp down on protest; it works.
4) Don’t normalise technology that is used against Uighurs
Genocides don’t happen overnight. The foundations for genocides are laid years, even decades, in advance. And while it’s difficult to pinpoint when the start date is, there are certain key moments. In the case of the Uighurs, one of these was the spread of mass surveillance. We need to fight against this, not just because video cameras sprouting up like mushrooms in our streets are bad for our own privacy. Also because if we are OK with it being used here we lose some of our moral high ground for arguing against it being used there.
5) Campaign for media freedom
There has been some phenomenal reporting on Xinjiang. Thanks to drone footage of camps by Buzzfeed and videos taken from inside a prison on the BBC, we are now gaining a far greater picture of what is happening in Xinjiang. Journalists are at the forefront of exposing the genocide. At the same time getting information out of Xinjiang is incredibly hard – the Chinese government tightly controls access to the province and some journalists have found their visas revoked as a result of their coverage. When we speak up for Uighurs, we must also speak up for the journalists who are putting their lives and careers on the line to bring us information. If you do hear of any media violations, whether related to Xinjiang or elsewhere, please report them to us or to our media map.
6) Give platforms to those in the Uighur community
Whether you are an events host, a media outlet or simply have your own blog, offer space for those from the Uighur community to talk. Uighurs have a rich and wonderful history of poetry and the spoken word. Why not publish some? That is what we are hoping to do in our winter issue. And in our forthcoming Autumn issue of the magazine, US-based Uighur activist Rushan Abbas, whose sister is in a concentration camp in Xinjiang, writes about her own experience and outrage. Please do subscribe to read this important article.
7) Finally, support organisations that are supporting Uighurs
There are now some excellent organisations to engage with. Here are a few of them: Campaign for Uyghurs, World Uyghur Congress and Uyghur Human Rights Project. You can donate to them and can sign petitions organised by them. Plus write to your local MP so that they can join people like Mahmood in putting pressure on the UK government to act.
Watch Mahmood’s speech in full here.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”Read more on China” category_id=”85″][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row]