Privacy invasive law in Mexico – guest post by Lisa M Brownlee

I’ve written about this before – but things have moved on, and not in a good way. Some aspects of the law discussed are deeply troubling, and privacy activists around the world should be concerned. The following is by Lisa M Brownlee – an information security/privacy and intellectual property legal scholar and author residing in Mexico, and someone whose work is well worth following, as is Lisa herself, on Twitter, where her tag is @lmbrownlee1. Her work on an early version of the law being discussed was published in ArsTechnica.


 

Mexico’s new telecommunications law – including controversial surveillance and data retention provisions.

On Wednesday, August 13, in a 4-3 vote, Mexico’s personal data protection authority, IFAI, (Federal Institute for Access to Information and Data Protection) considered and voted against challenging the constitutionality of Mexico’s new telecommunications law, the Federal Telecommunications and Broadcasting Act (FTBA).

The National Human Rights Commission (CNDH) was also empowered to block the legislation on constitutional grounds but failed to do so by Wednesday’s challenge deadline. The Mexican legislature’s Chamber of Deputies, also empowered to prevent the law’s taking effect, was 12 signatures short of a vote to block the FTBA. FTBA therefore took effect on August 13.

Shortly after the vote, Mexico’s Secretary of Communications and Transport (SCT), Gerardo Ruiz Esparza welcomed the new law and hailed, among other provisions, the law’s authorization of SCT to establish new Internet connections in over 40,000 public places nationwide.

IFAI is mandated to protect the privacy and personal data of citizens, and thus had the authority to challenge the constitutionality of the data collection, retention and access provisions of FTBA Articles 189 and 190. During the hearing, IFAI members stated that the data collected and retained under the FTBA was not “personal data”, and that IFAI therefore lacked standing to bring the suit.

FTBA Article 189 requires telecommunications licensees and Internet service providers to provide real-time geographic location of any type of communication device to public servants and security officials at their request, without warrant. Article 190 provides for the collection of data pertaining to communications, including the-origin of calls, duration, location, text messages metadata, activity on the network, and for the retention of such data for up to 24 months. Both provisions provide warrantless access by a broad range of government and law enforcement personnel.

Human rights activists fighting the constitutionality of the FTBA’s geolocation and data retention and access provisions were disappointed in IFAI’s failure to take action. The Twitter hashtag #IFAIL arose shortly after the no vote, the tag being a play on IFAI’s name, designating failure to carry out its privacy and data protection authority.

The digital rights group R3D Mexico decried as indefensible the statement made by IFAI president Ximena Puente that the data retained by the telecommunications companies was not “personal data”, and later criticized the failure of IFAI, CNDH and the Chamber of Deputies to act.


 

We need to watch this space!

DRIP: web-mail and web-browsing….

One of the big questions concerning data retention and the hastily-passed DRIP is whether it applies to web-browsing activities. Indeed, Julian Huppert MP asked the question during that all-too-brief debate in parliament, and was assured that it did not. I was far from convinced by the answer, and remain far from convinced, particularly given the idea that this ‘update’ to powers is intended to cover activities like webmail and social networking messages. Some colleagues have been asking questions, and a reliable source within one of the US companies that operates webmail (amongst other things) told us that they don’t expect the data retention powers to apply, given that they have never done so and the government made clear that there was no change in that through DRIP. They added further that as a US company, they are in a very different situation to UK providers.

That leaves us in a very interesting situation. If you’re communicating by webmail or social networking, how can your activities be caught? I can see only two ways: directly from the webmail company, or by capturing web-browsing through the ISP. If there are other ways, I’d like to know… because in the current circumstances I can see only three options:

  1. That webmail and social networking will not be covered by DRIP. That’s almost inconceivable, given the intentions of DRIP and the extent to which communications of the kind that those behind DRIP want to capture take place on webmail and social networks; or
  2. That the non-UK webmail and social network providers have been misled, and DRIP will be used to compel them to gather and hold communications data concerning activities on their services; or
  3. That Julian Huppert – and parliament, and the people of the UK – has been misled, and DRIP will be used to gather web-browsing activities.

If there’s another option, I’d like to know it. It’s entirely possible, as I’ve been wrong often before, but I can’t see it immediately.

My instinct is that the third option is the most likely – and that the intent of DRIP was always to gather web-browsing activity. If we’d had proper time for scrutiny of the bill, and to get experts to ask questions in committee, we might know the answers – and make sure that appropriate balances and controls are put in place. We didn’t. I have a strong suspicion that was entirely intentional too.

Surveillance and Austerity

One of the most depressing aspects of the passing of the Data Retention and Investigatory Powers Act (DRIP)  this week was the level of political consensus. All three major parties backed it, aside from a few mavericks in Tory and Labour ranks. Despite some excellent speeches in the Lords, it passed through there in double-quick time, without their Lordships even deeming it worthy of a vote.  It got me thinking, what else has a similar level of consensus? The obvious answer, sadly, was austerity. Ed Miliband is due to give a speech today to Labour’s National Policy Forum which, it seems, will confirm Labour’s commitment to it.

There is no alternative…

There are more parallels between surveillance and austerity than we should feel comfortable with. Our main political parties view both surveillance and austerity as ‘given’, and as though there are no alternatives even worth considering, let alone exploring in any detail. Both, we are told, are for our own good. Those who resist both, we are told, are unrealistic dreamers or worse. If we don’t embrace both, we are told, there will be disasters, and the future is bleak.

Divisive and simplistic…

Both also rely on divisive and simplistic assumptions.

The essence of the drive to welfare ‘reform’, in particular, is the idea that there are ‘strivers’ and ‘scroungers’, and that the former are being made to suffer by the latter. The former, the ‘good’ people, don’t need welfare, and won’t suffer from the results of austerity.

The essence of the drive for surveillance is that there are ‘good’ people and ‘bad’ people – and that the ‘good’ people are being made to suffer by the ‘bad’. The former, the ‘good’ people, don’t need privacy, and won’t suffer from the results of surveillance.

In neither case are the divisive and simplistic assumptions true. As anyone who studies the details knows, the majority of people on benefits are also in work. People shift from being in work to being out of work, from being in need to being able to do without it. The whole idea of ‘scroungers’ is overplayed and divisive, particularly in relation to people with disability. Similarly, the idea that ‘good’ people have nothing to hide, so don’t need privacy, is one of the classic misunderstandings of privacy. We all need privacy – it’s part of what we need as humans, part of our dignity, our autonomy. It’s a pragmatic necessity too, as those in power do not always use their powers for good – the latest of the Snowden revelations, that the NSA pass around naked pictures of ordinary people that they find through their snooping is just another example of how this works. Privacy isn’t about hiding – it’s about what we need as people.

It’s all about power

Ultimately, though, the thing that surveillance and austerity really have in common is power. They’re ways that those with power can keep control over those without it. Keep poor people poor and desperate, and they’re more malleable and controllable. They’ll take jobs on whatever conditions those offering them suggest. Surveillance is ultimately about control – the more information those in power have, the more they can wield that control, whether it’s monitoring social media in order to stop protests or manipulating it to make people happy and like particular products or services.

What we can do about it is another question. The real point about the people in power is that they have power…. and reducing that power is hard. We should, however, at least do our best not to have the wool pulled over our eyes. This isn’t for our benefit. It’s for theirs.

DRIP: normalising the surveillance state.

Yesterday’s shameful passing of the Data Retention and Investigatory Powers Act, nodded through without amendment and without even the perceived need for a vote in the House of Lords, was not just very bad news for the UK, it was bad news for the world. The ease with which it was passed, the speed with which it was passed, and the breadth of the powers granted send signals around the world. Some of us have been warning about this effect for a long time – what we do in the UK is being watched around the world. If we, as a supposedly mature, liberal democracy believe that mass surveillance is OK, then that means that anyone could do it. Indeed, that any sensible state should do it.

I’ve been accused of paranoia by making such a suggestion. After all, this is just ‘emergency’ legislation, a mere stop-gap while a proper review of investigatory powers and data gathering goes on. Well,  within a few short hours of the passing of DRIP, its echoes were already being heard the other side of the world. Australia’s Attorney-General, George Brandis, used DRIP as an example, seemingly to help push forward his own proposals for data retention. As reported in ZDNet, he said:

“The question of data retention is under active consideration by the government. I might point out to you as recently as yesterday, the House of Commons passed a new data retention statute. This is very much the way in which western nations are going,”

This is how it goes – and one of the many reasons that the passing of DRIP yesterday was so shameful. If the UK does it, Australia does it. Then New Zealand and Canada.  Each new country adds to the weight of the argument. Everyone’s doing it, why not us? If the UK thinks it needs this to keep its citizens safe, we need it too? By the time the long-distant sunset clause kicks in, the end of 2016, every new country that’s added a data retention law to its books, however temporary, will be another reason to extend our own security services’ powers. It’s a vicious or virtuous circle, depending on your perspective.

Of course the normalisation works in different ways too. Less scrupulous nations will be able to say that if the Brits do it, so can we – and we won’t be able to claim that they’re oppressing their population, if we do the same to our own. Further, our security services will require more and more technology to do the surveillance – and the people who develop that technology will be looking for new markets. They may sell them to the Australians – but more likely they’ll find ready markets in governments with less of a tradition of liberalism and democracy. There’s a fine selection of such nations all around the world. They’ll also find markets of other kinds – businesses wishing to use surveillance for their own purposes… whether scrupulous or not. The very criminals that the supporters of DRIP like to scare us with will be looking too – there are so many uses for surveillance that it’s hard to know where to start.

Well, actually, it should have been easy to know where to start. To make a stand. To try to normalise freedom and privacy, respect for citizens fundamental rights and a willingness for open, honest debate on the subject. That, however, would have required rejecting DRIP. We didn’t do that. Shame on us.

 

DRIP: Parliament in disrepute?

I watched and listened to the parliamentary debate on the Data Retention and Investigatory Powers bill (DRIP) with a kind of grim fascination. The outcome was always inevitable – I knew that, as, I think did all opponents of the bill – but the debate itself seemed to me to be worth paying attention to. Not really in terms of the result, but in terms of the process, and in terms of the way in which parliament was engaging with the issues. There were, it has to be said, some quite wonderful speeches in opposition to the bill, and from many different directions. MPs like John McDonnell, Dominic Raab, Caroline Lucas, Diane Abbott, Pete Wishart, David Winnick, Duncan Hames, Clive Betts, Charles Walker, Dennis Skinner and of course Tom Watson and David Davis were all excellent. Indeed, as someone said at the time, the opponents didn’t lose the debate, they lost the vote.

Therein lies the problem – what was the point of the debate? The chamber was all-but empty for most of it. In the middle of the debate, I got so angry I tweeted a picture of the chamber – with a comment attached. The tweet went a bit wild…. retweeted 870 times at the last count, and included by Liberty in their summary of the debate.

Screen Shot 2014-07-16 at 07.32.41

I did, however, also get some serious criticism for the tweet. Some suggested I had faked it, because I missed out the caption at the bottom. Fair enough – I was too angry to get the screen capture right, but I don’t fake things. I satirise and parody, tease and joke – but I don’t fake. For avoidance of doubt, I took another soon after, this time with the caption:

Screen Shot 2014-07-15 at 16.36.42

Another criticism I received, quite aggressively, was that it was misleading to tweet the picture, and that most of the MPs were likely to be in their offices or their committee rooms, working hard, but following and listening to the debate as it was being broadcast throughout the house. That may well be true – and in no way was I suggesting that MPs don’t work hard. They do – well, a great many of them do – but at this particular moment, and on this particular issue, their attention was elsewhere, as was their physical presence.

I don’t blame the MPs for that part of it. Of course their attention was elsewhere – after all, they’d had this emergency debate foisted upon them at the last minute, and they already have busy lives and huge amounts of work to do, particularly with the parliamentary recess coming up, and with a reshuffle happening at that very moment. Naturally, MPs are distracted by the reshuffle – coalition MPs because their jobs are on the line, Labour MPs because they have to be ready to respond to the reshuffle. Naturally their jobs, their careers, their responsibilities come first.

That, though, is really where my tweet comes in. I said ‘This is how seriously our MPs take our privacy’. I meant it. They showed disrespect to the issue not just by not listening to the debate, but by accepting a process that meant that they only had a few hours of debate to listen to, and almost nothing to read or discuss about it. They accepted an unnecessary fast-tracking, effectively on trust – because they don’t really take our privacy seriously.

Frankly, I’m not convinced that they were listening to the debate – but if they were, that makes their voting even worse. If they listened to the debate and still voted the way they did, in a way that’s even more depressing than the more natural assumption that they were largely ignoring the debate and voting according to the whip. It would mean that they either didn’t understand the strong arguments against the bill, both analytical and impassioned – or they dismissed them as unimportant. Either way, it suggests they didn’t take our privacy seriously. At least, not seriously enough to think it needed proper, lengthy, public debate bringing in expert opinions and analysis. I’m a legal academic, specialising in internet privacy. I’ve written a book on the subject, and I’m one of the signatories of this open letter concerning DRIP – and frankly I haven’t had nearly enough time to properly analyse and understand this bill and its implications. We’ve only had a chance for the most basic of analyses – and if I can’t, how much understanding can MPs have of it?

As David Winnick, a veteran MP and member of the Home Affairs Select Committee put it:

“I consider this to be an outright abuse of parliamentary procedure. Even if one is in favour of what the home secretary intends to do, to do so in the manner in which it is intended, to pass all stages in one go, surely makes a farce of our responsibilities as MPs”

He’s right. It does. It brings parliament into disrepute. MPs should be ashamed of themselves.

Open letter from UK legal academic experts re DRIP

I’m one of the signatories to the letter below – not just a few, but many very serious legal academics, some of the most distinguished in the field.


 

Tuesday 15th July 2014

To all Members of Parliament,

Re: An open letter from UK internet law academic experts

On Thursday 10 July the Coalition Government (with support from the Opposition) published draft emergency legislation, the Data Retention and Investigatory Powers Bill (“DRIP”). The Bill was posited as doing no more than extending the data retention powers already in force under the EU Data Retention Directive, which was recently ruled incompatible with European human rights law by the Grand Chamber of the Court of Justice of the European Union (CJEU) in the joined cases brought by Digital Rights Ireland (C-293/12) and Seitlinger and Others (C-594/12) handed down on 8 April 2014.

In introducing the Bill to Parliament, the Home Secretary framed the legislation as a response to the CJEU’s decision on data retention, and as essential to preserve current levels of access to communications data by law enforcement and security services. The government has maintained that the Bill does not contain new powers.

On our analysis, this position is false. In fact, the Bill proposes to extend investigatory powers considerably, increasing the British government’s capabilities to access both communications data and content. The Bill will increase surveillance powers by authorising the government to;

  • compel any person or company – including internet services and telecommunications companies – outside the United Kingdom to execute an interception warrant (Clause 4(2));
  • compel persons or companies outside the United Kingdom to execute an interception warrant relating to conduct outside of the UK (Clause 4(2));
  • compel any person or company outside the UK to do anything, including complying with technical requirements, to ensure that the person or company is able, on a continuing basis, to assist the UK with interception at any time (Clause 4(6)).
  • order any person or company outside the United Kingdom to obtain, retain and disclose communications data (Clause 4(8)); and
  • order any person or company outside the United Kingdom to obtain, retain and disclose communications data relating to conduct outside the UK (Clause 4(8)).

The legislation goes far beyond simply authorising data retention in the UK. In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.

Moreover, since mass data retention by the UK falls within the scope of EU law, as it entails a derogation from the EU’s e-privacy Directive (Article 15, Directive 2002/58), the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment.

Further, the bill incorporates a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive. Even if there was a real emergency relating to data retention, there is no apparent reason for this haste to be extended to the area of interception.

DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state. We urge the British Government not to fast track this legislation and instead apply full and proper parliamentary scrutiny to ensure Parliamentarians are not mislead as to what powers this Bill truly contains.

Signed,

 

Dr Subhajit Basu, University of Leeds

Dr Paul Bernal, University of East Anglia

Professor Ian Brown, Oxford University

Ray Corrigan, The Open University

Professor Lilian Edwards, University of Strathclyde

Dr Andres Guadamuz, University of Sussex

Dr Theodore Konstadinides, University of Surrey

Professor Chris Marsden, University of Sussex

Dr Karen Mc Cullagh, University of East Anglia

Dr. Daithí Mac Síthigh, Newcastle University

Professor Viktor Mayer-Schönberger, Oxford University

Professor David Mead, University of East Anglia

Professor Andrew Murray, London School of Economics

Professor Steve Peers, University of Essex
Julia Powles, University of Cambridge

Judith Rauhofer, University of Edinburgh

Professor Burkhard Schafer, University of Edinburgh

Professor Lorna Woods, University of Essex

Theresa May – even more reason to worry about DRIP….

Screen Shot 2014-07-14 at 19.00.29I watched and listened to the session of the Home Affairs Select Committee this afternoon: Home Secretary Theresa May was being questioned about a number of things, including DRIP. The session was, I suspect, intended to reassure us that everything was OK, and that we needn’t worry about DRIP. The result, for me at least, was precisely the opposite: it left me feeling even more concerned.

Theresa May is the minister responsible for DRIP, and her performance before the committee suggested neither competence in managing the process nor an understanding of what the issues were or why people would be concerned. It was a performance that mixed the incompetent with the contemptuous, not just failing to provide answers but suggesting that she didn’t think the questions were even worth asking.

Many things about it were poor. May failed to explain why the legislation had to be rushed through – she could not (or would not) explain why nothing had happened publicly since the ECJ ruling in April, and she could not (or would not) provide details as to why there was pressure now. Next, she could not answer the key question on extraterritoriality – whether the powers in DRIP were in fact new. She claimed to have had advice that the powers did exist before – but couldn’t say whether or not they had ever been used.

Most importantly, though, when pushed by David Winnick on the key point – compliance with the ECJ ruling that struck down the Data Retention Directive, she fumbled and obfuscated when asked about the ruling. She either did not understand or deliberately pretended not to understand that the key point of the ruling was that blanket gathering of data was in conflict with fundamental rights. Ultimately, that’s the real point here – and she either could not or would not answer it.

To put it directly, the ruling said that blanket gathering of data, gathering data on everyone, regardless of suspicion, guilt or innocence, or any particular reason, was not appropriate. That is what the Data Retention Directive (DRD) did, and why the ECJ struck it down. They’re right, too. This isn’t some esoteric or obscure point, it’s a fundamental one, parallel to the idea of the presumption of innocence. The DRD did it, and DRIP does it – which is why at the very least we need to discuss it in much more depth. The session with Theresa May left me thinking that she either didn’t understand it or she dismissed it as unimportant. Now you may disagree on proportionality, and believe that mass surveillance is a proportionate response, but to dismiss the issue as unimportant and unworthy of discussion is indefensible.

Mind you, I don’t think people will be talking that much about this – because Theresa May’s performance when questioned about the appointment and subsequent resignation of Lady Butler-Sloss was even worse, if that can be believed. All in all, Theresa May looked neither trustworthy nor competent. It’s hard to imagine someone less appropriate to trust with the open-ended and extensive powers granted by something like DRIP.