There is no real case for a snooper’s charter – but that won’t stop it

http://www.theguardian.com/commentisfree/2015/jun/14/snoopers-charter-anderson-report-home-office

Version 0 of 1.

Stories of the type in circulation today, in which anonymous government sources claim China and Russia have access to the Snowden documents and that this has had a material impact on the safety of British agents, have a degree of strategy behind them. Regardless of whether the substance is accurate, the timing seems calculated to draw attention away from David Anderson’s landmark report into the surveillance laws published last Thursday.

Related: Spies may not like the Anderson plan – but their world needs a revolution | Joshua Rozenberg

But I doubt that it will lessen the report’s impact on MPs and peers when they debate forthcoming surveillance legislation. Anderson represents a credible plan for reform which the government cannot simply ignore. The position we now find ourselves in is the result of some careful choreography under the coalition government designed to box in the illiberal instincts of the Home Office. For several years the Liberal Democrat side of the government, in which I served as Nick Clegg’s national security adviser, staved off the woefully unevidenced plan (hawked around Westminster by pliant ministers since 2008) for new powers to force internet companies to retain highly personal communications data (aka the “snooper’s charter”). The Snowden revelations in 2013 didn’t make a dent on that ambition, or on the willingness of the Conservative party to rubber-stamp every proposal put to them by the security establishment. Any nod to greater openness about internet surveillance had to be extracted through hard bargaining within the coalition.

Those tensions came to a head last summer when we used our agreement to the data retention and investigatory powers bill as leverage to open up the block on reform: first by setting a “sell-by” date on the legislation of December 2016, and second by forcing the prime minister to agree to a root-and-branch review of surveillance laws. In effect, this bound the hands of the new administration.

There can be no doubt that the instinct of the home secretary would have been to reintroduce the “snooper’s charter” as quickly as possible after the election, but Theresa May was unable to do so because that would have ridden roughshod over Anderson’s report. Instead, we now have a breathing space.

Will Labour take the risk of voting down intrusive new powers for which no convincing case has been made? They should

So what prospect is there of the “snooper’s charter” making a return? I will eat my hat if the Home Office doesn’t reinsert the most controversial proposal from the 2012 bill: the mandatory collection and storage of “weblogs”.

The idea of capturing and storing “weblogs” on every UK citizen for 12 months was the most controversial aspect of the 2012 bill. It was widely understood to mean keeping a record of the websites that you visit. But the term was never properly defined. And it turns out that “weblogs” mean much more than web browsing. Anderson managed to extract a definition from the Home Office: “Weblogs are a record of the interaction that a user of the internet has with other computers connected to the internet.”

This covers a ludicrously vast range of activities, including opening an app on your phone, logging on to a virtual private network, editing a spreadsheet in Google Docs, or uploading a photo to iCloud. It is a carte blanche to store any kind of data that the government chooses to ask for. Not surprisingly, Anderson says it should elicit a “high degree of caution”. Not least because he was “not presented with a detailed or unified case” on such vital matters as precisely what constitutes a weblog; what weblogs would be used for; whether those purposes could be met through less intrusive powers; why the authorities need 12 months of everyone’s weblogs; how the data could be securely stored; the privacy implications; the cost; and the feasibility. In other words, pretty much everything. The Home Office says it would be “useful” to be able to see everything. Well, it would be “useful” for the police to have a copy of the front door key of every house in the country, but that’s not a reason to do it.

The only plausible sounding justification that has been advanced is that operations are “going dark” – in other words that leads are drying up because the data isn’t available. I have seen nothing to suggest that the weblogs proposal does anything to resolve that problem. “Going dark” is a reflection of the fact that internet activity is now usually encrypted, and that much of the data is held on the servers of companies based overseas. Those are genuine and thorny challenges for legitimate law enforcement investigations. I can see that storing weblogs for 12 months might allow you to see that a suspect was using Facebook, which would allow you to approach the company for account data or decrypted content. But that could just as easily be achieved via a power to check the current weblogs of a known suspect – it doesn’t require massive retrospective data collection on millions of innocent citizens.

Though Anderson underscores that much more needs to be done before the proposals are fit to bring before parliament, I’m not holding my breath. Past performance suggests that the Home Office will plough on regardless, produce a flimsy justification for new powers, and combine it with political threats about the dire consequences should parliament fail to listen.

If the government manages to elbow its way past objections from a special joint committee in the autumn and publish a bill next year that includes weblogs, the only real possibility to block it will lie with the Labour party, together with the smaller parties and a handful of Tory rebels.

So will Labour take the political risk of voting down intrusive new powers for which no convincing case has been made? They should. And my hope is that Anderson’s scepticism gives them the cover they need to do just that.