Written evidence from Winston Smith (DIP0027)
1) As invited by the Joint Committee, I write concerning the draft Investigatory Powers Bill, also concerning the ‘Operational case for the retention of Internet connection records’ published with it.
2) I write concerning the effect of the draft Bill upon certain human rights of citizens of the United Kingdom: the right to respect for private and family life; the right to freedom of thought, conscience, and religion; the right to freedom of expression, including to receive and impart information and ideas without interference; the right to freedom of assembly and association; the enjoyment of each of which must be without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
3) These rights and freedoms may be limited lawfully only as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4) Until the United Kingdom no longer subscribes to the European Convention on Human Rights, neither the Government, nor any public authority, group or person has any right to engage in any activity or perform any act aimed at the destruction of any of these rights and freedoms, or at their limitation to a greater extent than is provided for in the Convention.
5) I have examined the draft Bill, the ‘Operational case for the retention of Internet connection records’ published with it, and the record of oral and written evidence published to date on the internet by the Draft Investigatory Powers Bill Joint Committee.
6) On the basis that this Bill has been drafted, that it means what it says, and that HM Government intends it to become law, I find that HM Government and those involved in drafting this bill have engaged, are engaging, and intend to engage further in activity and acts aimed at the destruction of these rights and freedoms, and their limitation to a greater extent than is provided for in the Convention, and aimed against certain provisions of the Data Protection Act 1998 as amended.
7) I find from their evidence to the Draft Investigatory Powers Bill Joint Committee that many and various public authorities are engaging, and intend to engage further, in activity and acts which take advantage of the destruction of these rights and freedoms and their limitation to a greater extent than is provided for in the Convention, and, for that matter, against certain provisions of the Data Protection Act 1998 as amended.
8) My reasoning, for statements (6) and (7) above, follows.
9) With regard to the Data Protection Act, it seems that subject data is being and will be used for purposes other than those for which it was collected, is being held and will be held in duplicate in secret databases by others than the original publicly-admitted data controllers, and is not and will not be available therefore to data subjects by subject access request nor to challenge as to whether it is required or accurate, nor for how long reasonably it is to be retained.
10) With further regard to the Data Protection Act, it seems that subject data is being and will be gathered secretly, and is and will be held in secret databases by secret data controllers and is not and will not be available therefore to data subjects by subject access request nor to challenge as to whether it is required or accurate, nor for how long reasonably it is to be retained.
11) The draft Bill proposes watching and recording, en masse, routinely and without any grounds for suspicion, the innocent, by far the vast majority, in going about their lawful business - their telecommunications; their internet use; their movements revealed by portable devices; what can known from files (photographs, letters, e-mails etc.) held on their communications devices and computers; what can be seen through their web cameras, wi-fi-connected security cameras and baby-watching cameras, and can be heard on related microphones; their details as recorded in various legitimate and publicly-known databases (e.g. heath records, adoption register).
12) This can never be a useful way to observe a very small minority going about their very criminal business, yet the draft Bill proposes to continue and extend the practice of holding such information secretly from the data subjects, and accessing it without judicial permission.. In my opinion and in the light of experience of independent expert witnesses, watching the innocent en masse by means of technology is no substitute for getting close to the seriously-criminal.
13) Where there are legitimate grounds for suspicion justifying interference with particular citizens’ human rights, the draft Bill proposes that the same data gathering and recording as above be applied to innocent people associated with those who may not be innocent, just because they share the same networks, devices and premises as those under suspicion. The draft Bill proposes to continue and extend the practice of holding such information secretly from data subjects, and accessing it, without judicial permission and extending warrants without judicial permission.
14) Because children and babies share the same networks, devices and premises as innocent adults and adults under suspicion, the state will be watching and recording them as well as adults; some of the material will constitute pictures of minors when naked, as well as similarly indecent pictures (and sound recordings) of adults.
15) With regard to judging whether to infringe these human rights, the provisions of the draft Bill are inadequate because too much is left to the executive and too little to an independent authority such as the judiciary: judicial review post facto of a decision by a government minister is not independent of the state and does not judge independently the case for interference, its scope and duration on the merits of its content; there are no instances (neither cited nor in practice) of urgency where a senior member of the judiciary is not to be found for urgent application for permission to interfere with human rights; warrants which can be extended in scope and time should not be extended without judicial inspection and authority; bulk database access by a senior executive such as a Superintendent of Police or Trading Standards Officer or a manager in a local authority represents an unrestrained breach of human rights by the executive; and officials appointed by and answerable to the Prime Minister or Home Secretary are not independent and their opinion can be ignored.
16) When such unfettered watching of the innocent by the state is known to citizens, not only will it have infringed their right to a private and family life by spying on them as they go about their legitimate business and conduct their lawful private and business lives, and not only will it have interfered (by interception) with their free exchange of opinion and information, it will cause them also to be overly-careful of what they say and do, of what opinions they voice and share, of what information they receive and disseminate, and if and how they assemble and associate.
17) Given the UK’s poor human rights record and the generally-unsympathetic treatment of minorities and of dissent by the UK state at all levels, there needs to be, and is not, judicial control of the exercise of the powers in the draft Bill, and independent review and oversight of their use, to ensure that any otherwise-lawful infringement of human rights brought about thereby also is without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
18) Supposing that citizens have the right to conduct their private lives and lawful business without the state prying and without fear of the state prying, and supposing that the rights about which I am writing are valuable, the draft Bill gives the citizen no effective means of knowledge of, or redress and compensation for, wrongful infringement of his or her privacy rights by the state - which should be on the same lines as the citizen’s rights concerning wrongful arrest and unlawful imprisonment, i.e. when a citizen’s freedom of lawful movement is infringed unlawfully by the state.
19) A fundamental question is whether this country belongs to its citizens, or whether the citizens belong to the state. It seems to me that the citizens are not the property of the state, and thus citizens and other residents should go about their lawful business free from any deliberate observation or recording by the state of their communications and free from intrusion by the state into their homes, offices or property, including freedom from interference by the state with their computing/communications devices.
20) The proposals in the draft Bill will infringe the rights of the vast majority of British residents for no good reason - the ones who are easy to watch because they are in settled residence and settled occupation, and who communicate naïvely because they have nothing to hide. These are the people whose use of their own telephones has been recorded, I gather, for the last ten years and details from whose traffic have been hoovered-up by GCHQ as it passes through communications cables on our shorelines.
21) However, the proposals are very unlikely to inconvenience the seriously-criminal. The published ‘Operational case’ (the portable document format version of which one can search readily) contains no reference to virtual private networks, to the OpenVPN protocol, to proxy servers, to ‘onion routers’ such as TOR, nor to encryption. These, and other readily-available associated means, enable many people to use the internet already without their ISP knowing which sites they visit (and without others knowing where the user is located). The document makes no mention either of access from internet cafés and from libraries, nor by using public Wi-Fi networks. It is easy also to communicate without visiting any web sites, but the ‘Operational case’ does not mention Skype used over virtual private networks, personal-key encrypted secure exchange of messages, nor communicating anonymously by use of public telephones and of buy-and-discard simple mobile telephones, let alone by post and face-to-face.
22) The case studies appended to the ‘Operational case’ are not said to bring about the arrest of terrorists nor of arms dealers (neither term being found in the whole document), which is realistic, unfortunately, given the means described therein.
23) It seems to me that the ‘Operational case’ was written either by people woefully ignorant of modern technology, or with the intention of misleading members of the legislature into continuing the bulk recording of readily-attributable telephone use, and legitimising and extending the bulk recording of readily-attributable internet use.
24) I do hope that MPs will not allow the police, MI5, GCHQ and sundry executive bodies more power and more budget in order to intrude further, vainly, on the privacy of the innocent. MPs should oblige the police and MI5 to explain instead how they will become close, personally, to terrorists, people- arms- and drug-traffickers, child-pornographers and paedophiles. Such villains will not be uncovered by asking their ISP which web sites they visit, nor by asking their network providers which numbers they call from home or from a rented mobile device.