'New laws not needed' to block Twitter: UK can morph into police state at will
Amberhawk | 02.09.2011 09:14 | August Riots | Analysis | Policing | Repression
One of the unanswered questions arising from the August riots is whether the government needs new powers to block the use of Twitter, Facebook and other social media which were used to organise the disturbances.
Prime Minister David Cameron suggested, in the immediate aftermath of the rioting, that blocking the use of social networking communications was a policy option that was to be urgently discussed with telecommunications operators (and then implemented as a priority).
So when the Home Office says (as it has done) that no new powers are needed, then it follows that either no new powers are needed (ie, the government already has the power to block social networking communications) or the politicians have quietly gone off the idea (and have decided not to say so).
Hack the RIPA
Assuming it is not the latter, one's first instinct is to look at the Regulation of Investigatory Powers Act (RIPA) as the source of any power to block communications. This Act states (in section 8 of RIPA) that to lawfully authorise interception, a signed warrant from the Home Secretary is required and that this warrant has to "name or describe either:
(a) one person as the interception subject; or
(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place."
Clearly "the one person" description in paragraph (a) can't work if there are hundreds of unknown individuals engaged in a riot, while the limitation to "a single set of premises" of paragraph (b) was not really intended to be stretched to lawfully describe something like "all premises in N17" (the post code of the Tottenham area).
Also, RIPA uses the word "interception". So do provisions to allow the authorities to intercept and study the content of communications between the "bad guys" (the intent behind RIPA) extend to the "blocking" of all communications to thousands of individuals (ie, including the "good guys") where the content of the communications is not studied at all? I am not sure it does.
For these reasons, I do not think that RIPA as currently constructed can be reliably used in riot situations as a lawful basis that blocks communications in the area of a riot. So where are the powers to block?
Uncivil disobedience
If I was having a bet, I think ministers might be considering the powers in the Civil Contingencies Act 2004. This is because the definition of an "emergency" – which is required to trigger use of the Act's draconian powers – clearly includes a riot, as a riot could cause "serious damage" to human welfare, to property and threaten lives.
Additionally, where the issue is "urgent", then the Civil Contingencies Act's powers can be exercised by ministers without resort to Parliament. Although "urgency" is understandable in times of a crisis, these urgency provisions also minimise Parliamentary scrutiny of their use at the critical time that the powers are exercised.
One issue that is unresolved is whether "rioting" can be given a "national security" label. For example, section 94 of the Telecommunications Act 1984 allows the Secretary of State to "give to that person" (eg, a telecommunications operator) "such directions of a general character as appear to the Secretary of State to be necessary in the interests of national security".
However, as public utterances of ministers have always addressed the August riots in terms of "criminality", then I suggest that "national security" powers really cannot be used to justify blocking of networking sites. If national security powers were to be used, then this would be wholly at odds with all the current political discourse.
Politicians want to keep a finger on the mute button
Other powers are in Part III of the Police Act 1997; this allows the police to interfere with "wireless telegraphy" if interference is authorised by a chief constable. However, if chief constables have the power, then this would exclude the politicians, who in the August riots clearly wanted to manage the police's response to the riots. The Civil Contingencies Act, by contrast, avoids this problem; it gives the authorising powers to ministers and not the police – another reason why I think that the powers in this Act are preferred.
All sorts of complicated, practical issues would still remain. For instance, if you block communications in an area, you will be blocking communications for everybody. So if you block messages saying "let's have a riot" you also block messages asking "Are you safe?". Also, there are also difficulties about defining when rioting is taking place and when the powers are used. For instance, what is the difference between "a riot" and Friday-night pub-chucking-out time in some of our city centres? Not much, I would argue.
In summary, the "riots" have thrown up all the age-old questions in the context of mass interference to communications systems used by every citizen. Do such powers exist already? When are they used? Who should exercise these powers? What are the checks and balances in relation to the exercise of these powers?
These important questions need an answer from our political masters. One can't have the "riots" being used to justify the building a system of extensive blocking of ALL communications without equal thought being given to the building of a reliable counter-balance that protects from the misuse of those powers.
This is especially the case if the powers of the Civil Contingencies Act 2004 are being contemplated as the vehicle to make such blocking lawful. After all, history tells us that it is in a time when emergency powers are used, that individual rights are often in their greatest peril of disappearing.
References: To understand the issues associated with the Civil Contingencies Act, see Liberty's briefing on the second reading of the Bill, first published in 2004.
http://amberhawk.typepad.com/files/liberty-comments_civil-contingencies-bill.pdf
So when the Home Office says (as it has done) that no new powers are needed, then it follows that either no new powers are needed (ie, the government already has the power to block social networking communications) or the politicians have quietly gone off the idea (and have decided not to say so).
Hack the RIPA
Assuming it is not the latter, one's first instinct is to look at the Regulation of Investigatory Powers Act (RIPA) as the source of any power to block communications. This Act states (in section 8 of RIPA) that to lawfully authorise interception, a signed warrant from the Home Secretary is required and that this warrant has to "name or describe either:
(a) one person as the interception subject; or
(b) a single set of premises as the premises in relation to which the interception to which the warrant relates is to take place."
Clearly "the one person" description in paragraph (a) can't work if there are hundreds of unknown individuals engaged in a riot, while the limitation to "a single set of premises" of paragraph (b) was not really intended to be stretched to lawfully describe something like "all premises in N17" (the post code of the Tottenham area).
Also, RIPA uses the word "interception". So do provisions to allow the authorities to intercept and study the content of communications between the "bad guys" (the intent behind RIPA) extend to the "blocking" of all communications to thousands of individuals (ie, including the "good guys") where the content of the communications is not studied at all? I am not sure it does.
For these reasons, I do not think that RIPA as currently constructed can be reliably used in riot situations as a lawful basis that blocks communications in the area of a riot. So where are the powers to block?
Uncivil disobedience
If I was having a bet, I think ministers might be considering the powers in the Civil Contingencies Act 2004. This is because the definition of an "emergency" – which is required to trigger use of the Act's draconian powers – clearly includes a riot, as a riot could cause "serious damage" to human welfare, to property and threaten lives.
Additionally, where the issue is "urgent", then the Civil Contingencies Act's powers can be exercised by ministers without resort to Parliament. Although "urgency" is understandable in times of a crisis, these urgency provisions also minimise Parliamentary scrutiny of their use at the critical time that the powers are exercised.
One issue that is unresolved is whether "rioting" can be given a "national security" label. For example, section 94 of the Telecommunications Act 1984 allows the Secretary of State to "give to that person" (eg, a telecommunications operator) "such directions of a general character as appear to the Secretary of State to be necessary in the interests of national security".
However, as public utterances of ministers have always addressed the August riots in terms of "criminality", then I suggest that "national security" powers really cannot be used to justify blocking of networking sites. If national security powers were to be used, then this would be wholly at odds with all the current political discourse.
Politicians want to keep a finger on the mute button
Other powers are in Part III of the Police Act 1997; this allows the police to interfere with "wireless telegraphy" if interference is authorised by a chief constable. However, if chief constables have the power, then this would exclude the politicians, who in the August riots clearly wanted to manage the police's response to the riots. The Civil Contingencies Act, by contrast, avoids this problem; it gives the authorising powers to ministers and not the police – another reason why I think that the powers in this Act are preferred.
All sorts of complicated, practical issues would still remain. For instance, if you block communications in an area, you will be blocking communications for everybody. So if you block messages saying "let's have a riot" you also block messages asking "Are you safe?". Also, there are also difficulties about defining when rioting is taking place and when the powers are used. For instance, what is the difference between "a riot" and Friday-night pub-chucking-out time in some of our city centres? Not much, I would argue.
In summary, the "riots" have thrown up all the age-old questions in the context of mass interference to communications systems used by every citizen. Do such powers exist already? When are they used? Who should exercise these powers? What are the checks and balances in relation to the exercise of these powers?
These important questions need an answer from our political masters. One can't have the "riots" being used to justify the building a system of extensive blocking of ALL communications without equal thought being given to the building of a reliable counter-balance that protects from the misuse of those powers.
This is especially the case if the powers of the Civil Contingencies Act 2004 are being contemplated as the vehicle to make such blocking lawful. After all, history tells us that it is in a time when emergency powers are used, that individual rights are often in their greatest peril of disappearing.
References: To understand the issues associated with the Civil Contingencies Act, see Liberty's briefing on the second reading of the Bill, first published in 2004.
http://amberhawk.typepad.com/files/liberty-comments_civil-contingencies-bill.pdf
Amberhawk
Homepage:
http://www.theregister.co.uk/2011/09/02/which_law_legitimises_the_blocking_of_communications/
Comments
Hide the following 2 comments
Suspend social media in one easy step
02.09.2011 11:03
CCA2003:
If the Secretary of State has reasonable grounds for believing that it is necessary
to do so—
(a) to protect the public from any threat to public safety or public health, or
(b) in the interests of national security,
he may, by a direction to OFCOM, require them to give a direction under
subsection (3) to a person (“the relevant provider”) who provides an electronic
communications network or electronic communications service or who makes
associated facilities available.
(3)A direction under this section is—
(a)a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b)a direction that that entitlement is restricted in the respects set out in the direction.
Notalawyer
Technical/strategic rather than legal
02.09.2011 18:25
However, blocking mobile phones would NOT block social media which mostly run via the Internet.
CCA permits just about anything. I think the reason it wasn't used was psyops, i.e. it would look like the situation was out of hand and would piss off liberals. I think the London "riots" were handled with an eye to making sure they didn't turn into another Egypt. Although the response was repressive, they were careful not to give the impression of a panic or loss of control - they calculatedly encouraged a position that police were standing off (which was not true), avoided recognising a crisis (e.g. Cameron not returning from holidays), etc. I think they made a calculated, rational decision not to use the CCA, not to use any unfamiliar weaponry, not to interfere with the Internet or mobile phones, and not to shoot to kill, or use the army or armed police. Ultimately they realised three things: 1) the economic damage of the unrest would be limited and absorbable, 2) the economic cost is outweighed by the propaganda cost/gain, and 3) anything which radicalised more people would increase both economic cost and propaganda cost. It was calculated based on events elsewhere in the world that any such response would probably not end the unrest in the first few days (c.f. Tunisia, France 2005), would risk prolonging the unrest or bringing more people in (c.f. Iran, Tunisia, Egypt, Syria), and would lose the "hearts and minds" battle (c.f. Sharpeville, Kent State). They were also alert to the possibility of "rioters" taking up arms in large numbers (c.f. L.A. 1992) or forming armed opposition groups in response to repression (c.f. Bloody Sunday). They wanted above all to avoid escalating and let the anger fizzle out.
In terms of shutdowns etc. Another option they'd have is to do it even if it's illegal, then plead common-law necessity defence when they get sued after the event. Given that judges are right-wing bigots, and that ruling against the government would basically bankrupt the state, they'd probably win.
I think the government has decided that blocking social networks during unrest isn't worth it or is counterproductive. The problems with blocking social media are technical and strategic more than legal. There is already an infrastructure to block particular websites which could be used to take out Twitter or Facebook for awhile:
First problem: they also lose the mobilisations of the racists, the "riot cleanup" people and the people they're trying to mobilise to support the police-state. Their own psyops, which made heavy use of "telepresence" and instantaneous media, would be hampered.
Second problem: they piss off a bunch of random users who then potentially sympathise with the unrest. Imagine if they'd shut off Twitter on day 2 and on day 3, protesters had gathered in Trafalgar Square. Suddenly a four-day flare-up has become another Egypt.
Third problem: they lose a major source of logistical info on when/where "rioters" will act. They effectively put out their own eyes.
Fourth problem: they lose the ability to prosecute people after the event for comments on sites they've shut down. Right now, anticipating the insurrection will not continue indefinitely, the system cares less about losing momentary control than about terrorising people in the long-term.
Fifth problem: at present most people are unaware that the Internet is watched and censored, and the state has an interest in keeping it this way. At present people use sites like Facebook and Twitter like they're talking in private. This is great for the police because they can gather intelligence and data-mine to their heart's content. Once people (especially anti-system people) start getting alert to the dangers, they'll stop using things like Twitter and start using Tor, Freenet, proxies, and a hundred other techniques which have frustrated the likes of China, Syria and Iran. The police know this not only because they study repressive regimes more closely than they'd let on, but also because they're playing constant cat-and-mouse with al-Qaeda sympathisers, paedophiles, cybercriminals and hackers - and losing a lot of the time.
Note also that blocking site X (e.g. Twitter) will not usually prevent users reaching site X as they can still reach it through proxies, Tor, VPN's and even more basic tools (Chinese users have used things like translate tools and web-to-mail to reach blocked sites); people can find out how to do these things from a simple Google search; and an effective censor would have to instantly take out a huge number of these kinds of workrounds along with the target site - i.e. block Twitter AND all the proxy sites AND all known Tor nodes AND web-to-mail AND hundreds of private VPNs etc etc. Not the sort of thing they could do the day after unrest breaks out, though viable if they put a lot of money into a permanent censorship programme. But not foolproof even then.
They could also shut down the whole Internet, but that would basically crash the economy.
fuck pigfuckers