Rifkind of the ISC…

Sir Malcolm Leslie Rifkind, KCMG, QC, MP, former Defence Secretary, former Foreign Secretary, distinguished member of Margaret Thatcher’s cabinet, long standing member of parliament, has become ensnared in a ‘cash for access’ scandal. This has many implications – and many different angles to examine, from his claim that it would be ‘unrealistic’ to expect an MP to live on £67k per annum onward – but the one that may be the most important is his role as Chair of the Intelligence and Security Committee, the ISC. The ISC is the only parliamentary body that oversees the activities of the intelligence services – MI5, MI6 and GCHQ. It is a body that is made up only of people personally nominated by the Prime Minister, and given the nod by the leader of the opposition – and until last year, it operated effectively in private. It has had one public session (about which I have written before) in November last year, and it wasn’t exactly impressive – it felt rehearsed, and scripted, the heads of MI5, MI6 and GCHQ having been given details of the questions beforehand.

In practice, therefore, there is an enormous amount of responsibility on the ISC, and on its chair in particular. What they do is largely behind closed doors – so we have to trust that they do a good job. The latest events for Sir Malcolm Rifkind make that seem very doubtful. I have met Rifkind – I sat next to him at the ‘Round Table’ events as part of the ISC’s inquiry into surveillance – and I have to admit I liked him. He was charming, affable, a good listener, clearly intelligent, and in some ways what appears to be a consummate politician. His experience is enormous, his ability to ‘manage’ meetings very impressive – but does that make him suitable for the key role overseeing the UK’s intelligence services?

He does not have the technical knowledge or understanding of the technology – he made that entirely clear from the start of the Round Table discussion, asking for the most basic information and demonstrating some critical levels of technical ignorance. He does not have the legal understanding either – he admitted to me directly that he didn’t understand RIPA – the Regulation of Investigatory Powers Act that is central to the governance of surveillance in the UK. So what is left? His ‘gravitas’, his position as a ‘safe pair of hands’. And that, importantly, is what is now compromised. He is supposed to represent us – and from what we have seen about his ‘cash for access’ scandal, it seems pretty clear that his main representation is of himself. He was duped by a fake Chinese company, set up by journalists, for the chance of making money. What he said may (it has yet to be confirmed) be within the parliamentary guidelines, but in this context that cannot be nearly enough. Being Chair of the ISC is a huge responsibility – and it has huge sensitivity.

It isn’t just personal issues that are at stake, but national security to: just imagine the possibilities if the fake Chinese company had been a cover for Chinese Intelligence rather than journalists from Channel 4 and the Telegraph. It is almost a classic trap – the sort of thing that has been played out in many thrillers. Some thrillers, these days, would have had Rifkind compromised by people within the intelligence services, so that they can bend him to their will – but I don’t believe that is the real risk here. Rather, it shows inappropriate priorities – when priorities are particularly critical.

There is another side to this that should be deeply concerning. This kind of thing matters because companies – specifically companies involved in the development and supply of surveillance technology – are part of the problem with surveillance. They want to promote surveillance so they can be paid to develop and implement technology here that can then be exported elsewhere – there is a ready market for surveillance systems all over the world, particularly to the more oppressive and autocratic of governments. These companies can lobby, can manipulate, can bamboozle people without the technological knowledge or understanding to appreciate the risks. And Rifkind fits the bill.

I don’t believe it is just Rifkind that is the issue here – though the idea that he could remain as Chair of the ISC after this is frankly deeply disturbing – but our whole system of oversight of intelligence. Depending on individuals, particularly individuals appointed through a system which is rife with patronage and inside connections, just doesn’t work. It creates vulnerability – and destroys the possibility of accountability. It needs root and branch reform – the involvement of technical experts, civil society and the judiciary, not just politicians and civil servants. Will it happen? It seems unlikely. Eventually Rifkind will probably fall on his sword, but nothing more will change. If only it would.

UPDATE: 10:15 February 24th: Rifkind has stepped down as Chair of the ISC, though he remains a member of the committee.

10:30 February 24th: Rifkind will also be stepping down as an MP in May

Be more goat…

Tomorrow is the Chinese New Year – and depending on who you talk to, the new year can be called the Year of the Sheep, the Ram, or the Goat. Personally, I’m going for goat.

Goat

Sheep and goats have played a significant part in the history of people all over the world. They come into proverbs and religion – separating the sheep from the goats is the one that springs most readily to mind, and highly relevant in these days where governments seem intent on creating division and setting some people to one side as ‘worse’ than others. David Cameron’s recent suggestion that obese people on benefits should have those benefits cut if they ‘refuse’ treatment is just one of a plethora of attempts to create and emphasise division, to cement in peoples minds the idea that some people are better than others, that some are more deserving than others, and so forth.

That, indeed, was how I always understood the idea of ‘separating the sheep from the goats’. The vicar who I first heard tell it was pretty clear: sheep are better than goats. The Lord is My Shepherd, not my Goat Herd. Sheep are cuter and better. They’re obedient and subservient, and they get their reward as a consequence. We should be like sheep, and let ourselves be herded – not like goats, who are ugly, stubborn and disobedient. We even have a word specially for it: capricious. It’s a primarily negative word – to be unpredictable, ungovernable, stubborn, unwilling to follow rules. Unwilling to be ruled. Don’t be a goat, the message seems to go. Be a sheep.

With the Chinese New Year ahead, the political statements are already making the point. Hong Kong’s CY Leung said that  citizens had better ‘inherit the traits of the sheep, of being tame and friendly, in the New Year’. That’s how governments would like us to be – indeed that’s how ‘the powerful’ all over would like us to be. Tame and friendly. Obedient. Compliant. Not too much trouble. The increasing moves in the UK towards a more authoritarian approach to the internet are just one example. We’re expected to just accept surveillance – like sheep accepting sheepdogs watching us all the time. We’re expected to embrace ‘porn’ filtering – again, it’s for our own good. Being penned in, like sheep. We’re not supposed to question this. We’re supposed to believe that those set to watch us, those who build the fences that pen us in, have our best interests at heart – rather than wish to shear off our wool, roast us and eat us with mint sauce.

And the evidence that they don’t have our best interests at heart seems to be growing all the time – the tax avoidance and evasion stories are just another example of the same sort of stuff we’ve seen before. One rule for the sheep, another for the dogs, still another for the farmers.

So, in this New Year, I say we shouldn’t accept it. Don’t be a sheep. Be a goat. Be awkward. Challenge what we’re told – and disobey the rules if they’re not right. Don’t be afraid to challenge even the biggest trolls on the bridges. Goats can be more powerful than they seem. I’m not afraid of being less cute than a sheep, less valued than a sheep. I’d rather be ugly and ornery than compliant….

Be more goat.

Thanks to David Spencer (@Honxqp) for the quote from CY Leung.

A poem for Data Protection Day

Today is Data Protection Day – or Data Privacy Day in the US. I thought I’d write a little poem to mark the occasion – so here it is:

 

Privacy’s dead, I’ve heard it said

It’s time to face the truth

It’s only fogeys who complain

Just listen to the youth

 

The young don’t care, don’t care at all

They share all day and night

And only those with things to hide

Put up some kind of fight

 

But is this true, I ask myself

Do kids not really mind?

Just talk to them, you’ll find they do

Their views are much maligned

 

But what they see as privacy

May not be what you say

For privacy’s not quite so clear

As hiding things away

 

What’s private may be bad or good

It may be big or small

It may not seem to matter much

But that’s just not your call

 

And in these days of online life

Of smartphones and the net

We pour our lives out digit’ly

In ways we might regret

 

…if data’s not protected well

And that means we need law

Law that’s written well and strong

With our rights at the core

 

Can law solve problems on its own?

Of course not, don’t be fooled

But law can play a crucial part

It can be one key tool

 

That’s why, though there are problems – huge

And many a massive flaw

I still campaign and still support

Data protection law

 

————————-

Apologies for the scansion…… and some of the rhymes!

 

The Snoopers’ Charter: Shameful Opportunism

The news that four peers are trying to bring back the Snoopers’ Charter – in its last incarnation the Communications Data Bill – is depressingly predictable, but perhaps even more shameful than other attempts at legitimising mass data gathering and surveillance. It displays shameful opportunism that seems to plumb new depths – and in a number of different way

1     Bringing it in based on an event

It is a bit of an axiom that reactive law – knee-jerk law – is a bad idea. Law by its nature needs to be considered carefully, not passed in the heat of a moment. The more oppressive and ill-considered of ‘counter-terror’ legislation, however, seems to tend to be done this way all too often. The USA-PATRIOT Act (whose long name, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act is worth a read in itself) is perhaps the best known example, but the Data Retention Directive worked just the same way, passed in the wake of the 7/7 bombings in London, and even making reference to those bombings in its preamble. That this directive was declared invalid by the Court of Justice of the European Union last year should give pause for thought. The CJEU said that the directive “entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary.” Authoritarian legislation, passed in haste, takes a long time to overturn. Even now, the repercussions are still being felt

2     Bringing it in based on this particular event

Hanging legislation on a hideous event is one thing – bringing it in based on this particular event, the Charlie Hebdo shootings, is even worse, as a careful examination of this event should have revealed not that more mass data gathering and surveillance is necessary, but rather the opposite. As I have written before, the shootings in Paris damage rather than enhance the case for mass data gathering and surveillance. The perpetrators were known to the authorities – they didn’t need to be rooted out by mass surveillance. The authorities had stopped watching them six months before, because, it seems, of lack of resources, resources that might have been available if a targeted rather than mass surveillance approach had been taken. This is part of an almost overwhelming trend – the killers of Lee Rigby and the suspects in the Boston bombings were also known to the authorities. There was no need for mass data gathering and surveillance to stop them – so to use this particular event as an excuse for bringing back the Snoopers’ Charter is particularly shameful.

3     Trying to rush the legislation through

It is almost never appropriate to rush legislation through – but sadly this is also all too familiar. Last summer, Parliament brought itself into significant disrepute by rushing through the Data Retention and Investigatory Powers Act (DRIP) in a matter of mere days, with no real time for scrutiny, no opportunity for independent expert analysis, and no real opposition from any of the main parties. This is not the way to legislate – it wasn’t right then, and it wouldn’t be right now.

4     Doing this in the midst of investigations and legal challenges

The one saving grace in DRIP was that it was intended to give breathing space, to allow proper, detailed and careful consideration to the many issues involved in surveillance. At the same time, there are a series of reviews over surveillance legislation in process – from the Intelligence and Security Committee and by the Independent Reviewer of Terrorism Legislation to start with. Moreover, DRIP itself is subject to legal challenge. To try to pass much more comprehensive and far-reaching legislation even before these reviews have been completed and their reports scrutinised, and before the legal challenges even make their way into the court room, is also deeply shameful – prejudging the results of those reports, and, in effect, disrespecting all those involved.

5     Doing this in the face of a clear CJEU ruling

What is perhaps even worse, is that on the face of it the planned legislation flies directly in the face of the CJEU ruling on data retention. The ruling was strong, clear and direct – but does not seem, on immediate reading of the legislation, to have been taken into account at all. Of course this may be wrong – but as the new legislation only appeared yesterday, and is planned to go before the Lords on Monday, there has not been time for proper, detailed analysis – and nor has there been any kind of explanation or reconciliation presented. This again highlights the point of taking time over legislation – and going through proper, detailed procedures.

6     Using a highly dodgy political method

The method which has been chosen to try to introduce this law is, to put it mildly, somewhat doubtful. Rather than a full Bill, the four peers have tabled an amendment – 18 pages of additional clauses – to an existing bill, the Counter Terrorism and Security, which has already gone through most of the processes necessary before becoming law. It’s like slipping in an entirely new law just before the first law is passed – it makes a mockery of parliamentary process, and in effect disrespects the whole of parliament.  Describing it as trying to sneak in the Snoopers’ Charter by the back door may even be too kind.

7     Ignoring the committee

The original Communications Data Bill was subject to analysis by a full parliamentary committee – and that parliamentary committee came out with a highly critical report, a report which ultimately led to the abandonment of the Bill.  By trying to bring it back now, seemingly virtually unchanged, the peers proposing the amendment are ignoring the committee and its findings – and as a consequence ignoring the whole process of parliamentary scrutiny.

8     Doing it at this time, in the run up to the election

To try to push through legislation like this in the run up to the election is in itself highly dubious tactics. Politicians have their minds on other things – and many of them may care much more about being re-elected than about whether the details of legislation to be passed are a good idea or not. Whether they ‘look’ good is what matters, and whether that makes them more electable. Right now, in the light of the anger and fear resulting from the Charlie Hebdo shootings, to oppose something that might make people safer, will be difficult – and may hinder the electoral prospects of MPs. This kind of thing has happened before – the way that the Digital Economy Act was passed in 2010 springs to mind – and again makes the timing of the bringing forward of the amendment feel very wrong

Why are they doing it this way?

The whole process – all these layers of opportunism – should make the alarm bells ring. This is a hugely significant piece of law – not just in terms of what it does but in terms of what it signifies, in terms of what kind of society we want to be living in, what kind of an internet we want to have. If we are going to make decisions like this, we should make them in careful, considered ways, weighing the evidence and seeking expert opinion. That’s the idea behind the parliamentary committee system, and the time it takes to bring laws in through normal procedures.

Why, then, are these procedures being avoided, and why are these underhand methods being used? It is hard to escape the conclusion that it is because those pushing it are afraid that if it is given the appropriate amount of time, of attention, and of scrutiny, then it will once again be defeated, as it was the last time around. In the cold light of day, do we want to live in such a surveillance society? I’m not sure – but I do think that trying to make those decisions in this way, in the heat of the moment and without the opportunity to give proper thought and proper scrutiny, is a disastrous way to proceed. Those behind it should be ashamed.

Non, David, vous n’êtes pas Charlie!

Along with so many other world leaders, David Cameron has made a big point of showing solidarity with the French in the face of the Charlie Hebdo atrocities, claiming to stand for freedom of expression – but anyone who has been following or studying the way his government deals with the press and indeed with freedom of expression generally knows that he’s far from a champion of freedom of expression.

Indeed, rather than championing freedom of expression, Cameron’s government has been actively hostile to it. His is a government that sent agents to a national newspaper’s office to force them to smash computers – an act that could hardly be interpreted as anything but brutal intimidation. This is a government under whose auspices the police have secretly monitored the communications between journalists and their sources.

This is a government that has forced through a law to prevent charities from campaigning on the very subjects for which they were founded, if that campaigning would amount to criticism of government policy. Under that very same law, letters were sent to political bloggers that could also be seen as little more than intimidation.

This is a government that monitors social media traffic to try to stop people protesting about badger culls. This is a government that bans protesting in Parliament Square.

This is a government that has championed – and seems likely to extend support for – a form of internet filtering that not only prevents access to lawful material but not just theoretically but practically has extensively overblocked, preventing access to sites on subjects like sex education. Indeed, even the discussion of subjects like the blocking and censorship of the internet – and circumvention of of this kind of blocking, in some ways the essence of freedom of expression – can and does get blocked by this kind of filtering. One of my own blog posts on the subject was blocked  by just such a system.

This is a government that supports exactly the kind of mass surveillance that studies show chill freedom of speech around the globe – indeed, an extensive report from American PEN demonstrated this just days before the Charlie Hebdo shootings. And what is David Cameron’s immediate reaction to the tragedy in Paris? To support even more of this surveillance.

So no, David, vous n’êtes pas Charlie. You’re very much the opposite. You’re not a champion of freedom of speech. You’re one of its enemies.

Paris damages the case for mass surveillance…

Predictably, the horrific killings in Paris have led to a number of calls for more, and more invasive powers of surveillance for the police and the intelligence services. This always happens after an atrocity – the horrendous murder of Lee Rigby, for example – but as then, these calls are misguided at best. In particular, what happened in Paris doesn’t make the case for mass surveillance stronger – if anything, it damages that case. A huge amount has been written about this already, and I don’t want to go over the same material yet again, but there are a few key points to bear in mind.

Firstly, that France already has extensive surveillance powers. It already has ID cards. It already has more privacy invasions than we in the UK have – and we have a huge amount. That surveillance, those privacy invasions, didn’t stop the shooting in Paris. Why, therefore, would we believe that similar powers would work better in the UK? Because our police and intelligence services are somehow ‘better’ than the French? To say that’s an unconvincing argument is to put it mildly.

Secondly, and more importantly, it looks almost certain that the perpetrators of the atrocity were already known to the police and intelligence services. They had been identified, and noted. Just as the murderers of Lee Rigby had been identified. And the men accused of the Boston bombings. The intelligence services already knew who they were – so to suggest that more dragnet-style mass surveillance would have helped prevent the atrocity would simply be wrong. Let me say it again. We knew who they were. We didn’t need big-data-style mass surveillance to find them – and that’s supposed to be the point of mass surveillance, insofar as mass surveillance has a point.

Most privacy advocates such as myself are not, despite what the supporters of mass surveillance might suggest, ‘anti-police’ or ‘anti-intelligence services’. Most that I know are very much in favour of the police. None of us like terrorism – and to someone like me, a free-speech advocate, an amateur satirist and even occasional cartoonist – this particular attack hits home very sharply. When we say we oppose mass surveillance, amongst other things it’s because we don’t think it’s likely to work – and in particular, that we think other things are likely to work better.  And the evidence, such as it is, seems to support that. Police and intelligence services do no have unlimited resources – far from it in this age of austerity. If the resources – time, money, energy, intelligence – currently put into mass surveillance systems that are unproven, have huge and damaging side-effect, and are even potentially counterproductive, were, instead, devoted to a more intelligent, targeted approach, it might even be that counterterrorism is more effective. We should be looking for new ways, not going down paths that are costly in both financial and human terms.

The fundamental problem is that terrorism, by its very nature, is hard to deal with. That’s something we have to face up to – and not try to look for silver bullets. No amount of technology, no level of surveillance, will solve that fundamental problem. We shouldn’t pretend that it can.

Dear Labour supporters…

As a long-time Labour voter who has since joined the Greens, and is still not absolutely certain which way to vote in the General Election, I keep finding myself saying the same thing on Twitter when discussing the election. Rather than repeat myself so many times, I thought I’d put a few of the standard questions and answers down here for reference. Just so you don’t have to ask me again and again, directly….

“Vote Green, get Tory”

I can’t count the number of times I’ve been told this. Firstly, in my constituency that simply isn’t true. The Tories don’t really have a chance here – and anyway, if they did (and I’ll be watching the polling closely) I would almost certainly vote Labour. Secondly, we can’t just be cynical about this – if we think only in those terms, we’d never get the kinds of changes that brought the Labour Party into existence in the first place. Elections aren’t just about the immediate short-term result. If you want real change – and I would hope most progressive (not to say radical) people do want real change – we have to think in longer terms, and in deeper ways.

Vote Labour, get Tory Policies

Thirdly, this brings up the next argument. Right now, it looks as though – for many of the issues that matter to me – a more accurate statement would be ‘vote Labour, get Tory Policies’. Yes, I know the policies over the NHS are different, and I know the austerity wouldn’t be quite as harsh, and I know the bedroom tax would be repealed, but that’s not enough for me. The appallingly xenophobic immigration policy is near identical, Gove’s ‘reforms’ to education seem to be being embraced by Tristram Hunt, the authoritarian civil liberties policies (not to mention counter-productive puritanism on things like internet filtering/censorship), and the overall acceptance of the false ‘scrounger/striver’ (including regular reference to punitive measures or use of coercion on benefit claimants) dichotomy is tantamount to Toryism.

Yes, I agree on the NHS, but given the amount of apparent denial among Labour ranks about PFI and so forth, I’m not fully convinced. When I see Labour’s unwillingness to be brave in relation to rail renationalisation, and the tentative nature of the opposition to the privatisation of the Royal Mail, I’m even less convinced.

And yes, I know that Labour’s austerity wouldn’t be as ‘bad’ as the current Tory austerity – that just makes Labour ‘ordinary’ Tory, and the current Tories ‘extreme’ Tory. And yes, I know that the lesser of two evils may be the ‘better’ choice in the end, but have we really come to that point? I hope not.

How NOT to get Green voters back…

Overall, my interactions with Labour supporters have reinforced the feelings that made me join the Green Party in the first place. I’m accused of stupidity by some, of being too posh by others, of not understanding how politics works by more – the whole ‘vote Green, get Tory’ idea suggests that I haven’t thought it through. It’s an insult to my intelligence – and to my understanding of politics. I’ve been told Greens are just sandal-wearing middle-class hand-wringers. Again, not true – and insulting. Do you really think that insulting people will make them like you more?

How TO get Green voters back…

Well, a starting point would be an acknowledgment of why people feel abandoned by the Labour Party. For me, there was one pivotal moment – when Liam Byrne effectively supported (by abstaining) the retrospective legislation on Workfare, something which even now does not seem to have been acknowledged to have been a mistake. There have been other ‘facepalm’ moments when I’ve been reminded that the Parliamentary Labour Party is not on the same page as me. I know lots of excellent people in local Labour Party politics, but it’s still very hard to see how local activists get their views into the national arena. It’s hard to see any comprehension of why people might be upset – instead, when there’s a mention of something good, it’s almost always immediately matched by something appalling and retrogressive. An attack on David Cameron for not being nasty enough over immigration. An absurdity like the ‘oath’ for teachers. More support for internet censorship by Helen Goodman.

That’s why I felt the need to go elsewhere. I don’t think Labour wants to listen to people like me. Maybe I’m a dinosaur. Maybe I’m an extremist. Maybe I’m too focused on particular issues. If I felt, however, that there was even a decent chance that Labour might change on some of these things, that they might not feel the need to ape Tory/UKIP xenophobia, that they might be willing to be a touch braver, a touch more radical – then I’d be much more likely to vote Labour, even to rejoin Labour.

If, on the other hand, I get the same, tired arguments and insults, that’s likely to do precisely the opposite. Every time I’m told ‘vote Green, get Tory,’ my heart sinks for Labour – and I’m less likely to vote for them.

Prime Minister Ed?

Don’t get me wrong, I very much want to see Ed Miliband in number 10 – but I want to see an Ed Miliband not shackled to Tory policies, wedded to a Tory agenda. Right now, for me, the best way to do that seems to be, counterintuitively though it may seem, to support the Greens. How else can I tell Labour that I want a more radical, more left wing agenda? I’m very glad there are people within the Labour Party fighting to make Labour more radical – but to me, it feels as though Labour needs pressure from outside as well as inside. If pressure only comes from inside, it’s easy to ignore – and has been ignored, to a great extent, for the last few years. If, however, Labour feels as though it’s losing members, voters and supporters, then it has to react. The question is how it reacts. By insulting and patronising, or by listening and (possibly) changing. I know which one I want – and which one is likely to work on me.