[ORG PM] ORG Policy Update - 17 July 2015

Fri Jul 17 14:59:29 BST 2015

 ORG policy update/2015-w29

 This is ORG's Policy Update for the week beginning 10/07/2015

 Legal cases High Court founds DRIPA illegal

On Friday, July 17th, High Court judges have overturned
<http://www.theguardian.com/world/2015/jul/17/data-retention-and-surveillance-legislation-ruled-unlawful>
the Data Retention and Investigatory Powers Act 2014
<https://wiki.openrightsgroup.org/wiki/Data_Retention_and_Investigatory_Powers_Act_2014>.

DRIPA was passed in an emergency procedure in July 2014, three months after
an European Court of Justice
<https://wiki.openrightsgroup.org/wiki/European_Court_of_Justice>'s
judgment annulled the Data Retention Directive and made a strong case
against blanket data retention without very strong safeguards.

Soon after the law was passed, two MPs, David Davis
<https://wiki.openrightsgroup.org/wiki/David_Davis_MP> and Tom Watson
<https://wiki.openrightsgroup.org/wiki/Tom_Watson_MP>, alongside civil
rights group Liberty, announced
<http://www.theguardian.com/world/2014/jul/22/drip-surveillance-law-legal-challenge-civil-liberties-campaigners>
that they were challenging the law. Open Rights Group intervened in front
of the Court at the beginning of the year and made the point that the
European Court of Justice had set out the requirements that domestic law
must follow in order to comply with European requirements on the protection
of privacy, and that DRIPA did not comply with these requirements.

The Court ruled that section one of Dripa “does not lay down clear and
precise rules providing for access to and use of communications data”. As a
result, DRIPA should be “disapplied”. However, the Court suspends its order
until March 31st, 2016, in order “to give parliament the opportunity to put
matters right”. This is the first time
<https://twitter.com/libertyhq/status/621963985965985792> MPs have
successfully judicially reviewed a government act.

 Reports RUSI review of the intelligence capabilities and practices in the
UK

The Royal United Services Institute for Defence and Security Studies issued
on Tuesday, July 14th, a report
<https://www.rusi.org/events/ref:E559A4F81E3F1F#.VajRZrz8vQp> reviewing
surveillance practices and intelligence capabilities in the UK. It was
commissioned by the then deputy Prime Minister Nick Clegg MP
<https://wiki.openrightsgroup.org/wiki/Nick_Clegg_MP> in March 2014 as a
response to the Snowden revelations.

This report comes only weeks after the reports from the Independent
Reviewer of Terrorism Legislation
<https://terrorismlegislationreviewer.independent.gov.uk/a-question-of-trust-report-of-the-investigatory-powers-review/>,
David Anderson, and the Intelligence and Security Committee
<http://isc.independent.gov.uk/news-archive/12march2015>. It reaches a lot
of similar conclusions
<http://www.theguardian.com/commentisfree/2015/jul/14/mass-suveillance-reform-gchq-uk-intelligence-gathering-rusi-report?CMP=share_btn_tw>,
namely that “a new, comprehensive and clearer legal framework is required”
given the complexity and opacity of the current legislation. Like the
Anderson Report, this review argues that judicial commissioners, rather
than Secretaries of State, should have the power to sign warrants.

Despite having been set up to investigate into the Snowden revelations, the
panel has found “ no evidence that the British government knowingly acts
illegally in intercepting private communications”. However, Heather
Brooke wrote
in The Guardian
<http://www.theguardian.com/commentisfree/2015/jul/14/mass-suveillance-reform-gchq-uk-intelligence-gathering-rusi-report>
that herself and other writers of the report thought they did not have
access to enough evidence to make this assumption. Brooke stated that she
faced "resistance when pushing for detailed information about what the
agencies are actually doing".

Civil rights group have welcomed some conclusions of the report but judged
it too tame in its conclusions and recommendations. Eric King, deputy
director of Privacy International, stated that
<https://www.privacyinternational.org/?q=node/623> “root and branch reform
is needed to bring our spy agencies under democratic control”; ORG's
Executive Director Jim Killock expressed his regrets
<https://www.openrightsgroup.org/press/releases/org-response-to-the-rusi-review>
that “RUSI has condoned mass surveillance, which now seems to be termed
‘bulk collection’ to disguise the real and disturbing practices of blanket
collection”.

 IOCOO report on Investigatory powers shows human errors and illegal access
to journalists' sources

The Interception of Communications Commissioner's Office published its
half-yearly
report
<http://www.iocco-uk.info/docs/2015%20Half-yearly%20report%20%28web%20version%29.pdf>
this week. It sheds light on seventeen serious errors committed by British
authorities using investigatory powers. Human errors have led to
<http://www.theregister.co.uk/2015/07/17/iocco_report_reveals_police_raid_wrong_house_typo/>
wrong person being investigated or delayed welfare checks.

The report gives details on
<http://www.theregister.co.uk/2015/07/16/police_dodged_judicial_approval_to_spy_on_journalists_sources/>
two cases in which authorities gained access, without proper judicial
approval, to metadata allowing them to identify journalists' sources,
despite the Regulation of Investigatory Powers Act
<https://wiki.openrightsgroup.org/wiki/Regulation_of_Investigatory_Powers_Act>
safeguards to protect professional secrecy. One of those cases was
investigating a source inside the police forces themselves, but it is not
clear whether the source was doing something illegal or was a
whistleblower.

 European Union Passenger Name Record proposal voted in European
Parliament's civil liberties committee

The Civil Liberties, Justice & Home Affairs committee of the European
Parliament <https://wiki.openrightsgroup.org/wiki/European_Parliament>
adopted
<http://www.europarl.europa.eu/news/en/news-room/content/20150714IPR81601/html/Passenger-Name-Records-MEPs-back-EU-system-with-data-protection-safeguards>
on Wednesday, July 15th, a proposal for the creation of an European
Passenger Name Record (PNR). This scheme will collect information from
passengers on flights entering or exiting the EU, so that they can be used
by Member States or Europol in the prevention, investigation and
prosecution of serious criminal or terrorist offences. The proposal faced
strong opposition as many MEPs criticised it
<http://www.euractiv.com/sections/infosociety/passenger-name-record-law-passes-first-hurdle-parliament-316354>
for being a disproportionate infringement on privacy. It was however passed
with 32 votes to 27. Safeguards have been secured, such as a mandatory log
and documentation of all activities on the data or strict conditions for
the transfer of data to third countries. Sixteen European countries already
have
<http://www.euractiv.com/sections/infosociety/passenger-name-record-law-passes-first-hurdle-parliament-316354>
similar national law and domestic PNR schemes; the EU has also signed
sharing of PNR data with the US, Canada and Australia.

The main point of debate was the length of the storage: even though any
information allowing the identification of a passenger would have to be
“masked out” after thirty days, it could be accessed and de-anonymised up
to five years after its collection. European digital rights group EDRi
denounced
<https://edri.org/eu-pnr-unproven-ineffective-strategies-are-not-security/>
an ineffective measure that “put[s] innocent people at risk of suspicion”,
and questioned the legality
<https://edri.org/ep-pushes-for-more-surveillance-and-profiling-of-eu-citizens/>
of such data retention given the annulment of the Data Retention directive
by the European Court of Justice last year.

This vote gives mandate to the Parliament's negotiator to start the
trialogue with the other European institutions on this proposal in
September.

 International Developments Chinese Internet security draft law enhances
the power of the Cyberspace Administration

A new Internet security law published by the Chinese government this
month (here
in English
<http://arstechnica.co.uk/tech-policy/2015/07/chinas-new-internet-law-formalises-stricter-censorship-surveillance-powers/>)
further enhances – or at least, gives greater legal basis to - Chinese
authorities' control over Internet in China. The draft law contains
provisions allowing state agencies to ask network operators to stop the
transmission of “[any] information which release or transmission of is
prohibited by laws”. The Bill also allows for
<http://arstechnica.co.uk/tech-policy/2015/07/chinas-new-internet-law-formalises-stricter-censorship-surveillance-powers/>
the complete shutting down of Internet in a region, in order to “protect
national security and social public order”. Such a shutting down was
carried for six months in 2009 in the Western province of Xinjiang, but
this law gives those kind of operations stronger legal groundings.

The draft law enhances
<http://thediplomat.com/2015/07/china-to-codify-internet-control-measures/>
the Cyberspace Administration's status and power. Chaired by the President
Xi Jinping himself and set up for the monitoring of online content in 2013,
this agency is gradually centralising power over networks. Jennifer Zhang,
an Internet researcher at the University of Hong Knog, wrote that
<http://thediplomat.com/2015/07/china-to-codify-internet-control-measures/>
"it is unclear whether the Cyberspace Administration will be subject to any
form of supervision and oversight”.

 ORG Media coverage

See ORG Press Coverage
<https://wiki.openrightsgroup.org/wiki/ORG_Press_Coverage> for full
details.
2015-07-17 – Bit-tech - High Court rules DRIP Act surveillance illegal
<http://www.bit-tech.net/news/bits/2015/07/17/dripa-illegal/1> Author:
Gareth Halfacree Summary: Article mentioning the role of ORG in the fight
against DRIPA 2015-07-14 – Wired - Surveillance report calls for judicial
sign-off on interceptions
<http://www.wired.co.uk/news/archive/2015-07/14/rusi-reports-calls-for-judicial-sign-off-interception-warrants>
Author:
Katie Collins Summary: Article quoting Jim Killock on the RUSI report
2015-07-14
– The Inquirer - GCHQ oversight needs its eyes testing, finds independent
study
<http://www.theinquirer.net/inquirer/news/2417640/gchq-oversight-needs-its-eyes-testing-finds-independent-study>
Author:
Dave Neal Summary: Article quoting Jim Killock on the RUSI report 2015-07-13
– Telegraph - Will WhatsApp really be banned in the UK?
<http://www.telegraph.co.uk/technology/social-media/11736230/Will-WhatsApp-really-be-banned-in-the-UK.html>
Author:
Sophie Curtis Summary: One of the numerous articles on the effect that
banning encryption would have on services such as whatsapp. Quotes Jim
Killock on the matter. ORG contact details

Staff page <http://www.openrightsgroup.org/people/staff>

   -

   Jim Killock, Executive Director
   <http://www.openrightsgroup.org/people/staff#jim>
   -

   Javier Ruiz, Policy <http://www.openrightsgroup.org/people/staff#javier>
   -

   Ed Paton-Williams, Campaigns
   <http://www.openrightsgroup.org/people/staff#ed>
   -

   Pam Cowburn, Communications
   <http://www.openrightsgroup.org/people/staff#pam>
   -

   Lee Maguire, Tech <http://www.openrightsgroup.org/people/staff#lee>
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