New legal opinion on the Online Safety Bill

There has been significant commentary on the flaws of the Online Safety Bill, particularly the harmful impact on freedom of expression from the concept of the ‘duty of care’ over adult internet users and the problematic ‘legal but harmful’ category for online speech. Index on Censorship has identified another area of the Bill, far less examined, that now deserves our attention. The provisions in the Online Safety Bill that would enable state-backed surveillance of private communications contain some of the broadest and powerful surveillance powers ever proposed in any Western democracy. It is our opinion that the powers conceived in the Bill would not be lawful under our common law and existing human rights legal framework.

Index on Censorship has commissioned a legal opinion by Matthew Ryder KC, an expert on information law, crime and human rights, and barrister, Aidan Wills of Matrix Chambers. This report (a) summarises the main legal arguments and analysis; (b) provides a more detailed explanation of the powers contained in Section 104 notices; and (c) lays out the legal opinion in full.

The legal opinion shows how the powers conceived go beyond even the controversial powers contained within the Investigatory Powers Act (2016) but critically, without the safeguards that Parliament inserted into the Act in order to ensure it protected the privacy and the  fundamental rights of UK citizens. The powers in the Online Safety Bill have no such safeguards as of yet.

The Bill as currently drafted gives Ofcom the powers to impose Section 104 notices on the operators of private messaging apps and other online services. These notices give Ofcom the power to impose specific technologies (e.g. algorithmic content detection) that provide for the surveillance of the private correspondence of UK citizens. The powers allow the technology to be imposed with limited legal safeguards. It means the UK would be one of the first democracies to place a de facto ban on end-to-end encryption for private messaging apps. No  communications in the UK – whether between MPs, between whistleblowers and journalists, or between a victim and a victims support charity – would be secure or private. In an era where Russia and China continue to work to undermine UK cybersecurity, we believe this could pose a critical threat to UK national security.

The King’s Counsel’s legal opinion includes that:

● Section 104 notices amount to state-mandated surveillance because they install the right to impose technologies that would intercept and scan private communications on a mass scale. The principle that the state can mandate the surveillance of millions of lawful users of private messaging apps should require a much higher threshold of legal justification which has not been established to date. Currently this level of state surveillance would only be possible under the Investigatory Powers Act if there is a threat to national security.

● Ofcom will have a wider remit on mass surveillance powers of UK citizens than the UK’s spy agencies, such as GCHQ (under the Investigatory Powers Act 2016). Ofcom could impose surveillance on all private messaging users with a notice, underpinned by significant financial penalties, with less legal process or protections than GCHQ would need for a far more limited power.

● Questionable legality: The proposed interferences with the rights of UK citizens arising from surveillance under the Bill are unlikely to be in accordance with the law and are open to legal challenge.

● Failure to protect journalists: if enacted, journalists will not be properly protected from state surveillance risking source confidentiality and endangering human rights defenders and vulnerable communities.

The disproportionate interference with people’s privacy identified by the legal analysis paints an altogether different picture of the Online Safety Bill. Far from being a law to establish accountability for online crime, the legislation, as drafted, opens the door for sweeping new powers of surveillance with little public debate over their purpose and proportionality. Unless the government reconsiders or parliament pushes back, these powers are set on a collision course with independent media and journalism as well as marginalised groups.

Download this new legal opinion on the Online Safety Bill here

British MP: “We should forge a path for Uighur freedom” – here’s how

[vc_row][vc_column][vc_single_image image=”114740″ img_size=”full” add_caption=”yes”][vc_column_text]“Someone has to say enough is enough,” said Shabana Mahmood, a member of parliament (MP) from the UK in a speech she delivered last night in the British parliament about the genocide of the Uighur people from the Chinese province of Xinjiang.

“The Chinese government continue unhindered with a campaign of what can only accurately be described as genocide, but where we should expect leadership and action, there is only a yawning void.”

Mahmood said the testimonies from Uighurs are “ever more disturbing”, citing a recent ITV news item in which a doctor spoke of forced sterilisation and abortion (in one instance a baby was still moving when it was discarded into the rubbish) and a man spoke of torture so extreme that he passed out. These are not isolated examples. It is estimated that at least one million people are incarcerated in camps across the region, while the millions of others who are not in a camp are subject to constant harassment and are living under extreme surveillance and control, right down to the language they speak.

“The charge sheet is long and horrific,” said Mahmood.

Mahmood mentioned new Disney movie Mulan, which was filmed in the province, as “one of the most striking examples of choosing to look away” and said there was a savage irony given the story of Mulan is one of family and emancipation.

“We should all be alarmed and appalled by what we are seeing, but we should all also resolve to forge a path forward for Uighur freedom,” argued Mahmood, who said this path involves various approaches, such as corporate and government accountability. We “cannot allow the fruits of forced labour to end up on our shores and in our homes”, she said, adding: “The Chinese Communist Party has busily been buying up influence and the silence of other countries.”

She also spoke of legal avenues, including those that have been used in recent years to help the Rohingya from Myanmar.

“History will judge us for the unforgivable lack of action thus far,” said Mahmood.

Many of these moves Mahmood called for were at a governmental level. What can we as individuals do?

1) Shout about it

Yes, a Tweet and a Facebook post are easy, but they are still better than nothing. We must use our words, especially when those in Xinjiang are being so woefully deprived of theirs. This is not to say that if we remain silent we are complicit. As the philosopher Julian Baggini wrote for the magazine earlier this year: “There are innumerable injustices around the world. Save for a handful of full-time activists and professionals in organisations such as Index, the finite supply of time ensures that most of us are silent about the vast majority of them.” Baggini specifically mentioned the Uighurs. But he also spoke about the concept of a “speech act”. “The key idea is very simple: words do not only convey information, they can actually do things. When a boss says ‘You’re fired’, a person loses their job. When a male manager says something misogynistic, he diminishes the status of female colleagues and makes their opinions count for less.” We can, through our words, foster an environment in which these actions are not condoned, in which Chinese officials find it increasingly difficult to go on live television and claim the atrocities are not happening, and in which world leaders struggle to continue their inaction.

2) Be wise to where our products come from

We at Index do not advocate outright banning – it goes against what we stand for. But nor do we promote companies and organisations involved in exploitation and human rights abuses. In an interview earlier this year about companies working with China, Yaqiu Wang, a senior researcher at Human Rights Watch, said: “By caving into the Chinese demands you are putting your values [aside] – social responsibility, freedom. It is really corrosive. You are affecting global freedom of speech.” As a consumer it’s difficult to know where everything comes from. That said, with each passing day evidence emerges linking major global brands to slave labour in Xinjiang. As consumers we can speak through our wallets. We can buy from the brands that we know aren’t complicit in the genocide; we can watch movies that aren’t filmed in the province. And we can support organisations like End Uyghur Forced Labour who are working hard to expose these links. We have choices here.

3) Protest on the streets

Live in London? The Chinese Embassy is located at 31 Portland Place, W1B 1QD. That’s a great place to start. Index have documented over the years countless examples of protest working, whether it’s a single person campaigning from their home or millions coming together. There’s a reason governments are so keen to control and clamp down on protest; it works.

4) Don’t normalise technology that is used against Uighurs

Genocides don’t happen overnight. The foundations for genocides are laid years, even decades, in advance. And while it’s difficult to pinpoint when the start date is, there are certain key moments. In the case of the Uighurs, one of these was the spread of mass surveillance. We need to fight against this, not just because video cameras sprouting up like mushrooms in our streets are bad for our own privacy. Also because if we are OK with it being used here we lose some of our moral high ground for arguing against it being used there.

5) Campaign for media freedom

There has been some phenomenal reporting on Xinjiang. Thanks to drone footage of camps by Buzzfeed and videos taken from inside a prison on the BBC, we are now gaining a far greater picture of what is happening in Xinjiang. Journalists are at the forefront of exposing the genocide. At the same time getting information out of Xinjiang is incredibly hard – the Chinese government tightly controls access to the province and some journalists have found their visas revoked as a result of their coverage. When we speak up for Uighurs, we must also speak up for the journalists who are putting their lives and careers on the line to bring us information. If you do hear of any media violations, whether related to Xinjiang or elsewhere, please report them to us or to our media map.

6) Give platforms to those in the Uighur community

Whether you are an events host, a media outlet or simply have your own blog, offer space for those from the Uighur community to talk. Uighurs have a rich and wonderful history of poetry and the spoken word. Why not publish some? That is what we are hoping to do in our winter issue. And in our forthcoming Autumn issue of the magazine, US-based Uighur activist Rushan Abbas, whose sister is in a concentration camp in Xinjiang, writes about her own experience and outrage. Please do subscribe to read this important article.

7) Finally, support organisations that are supporting Uighurs

There are now some excellent organisations to engage with. Here are a few of them: Campaign for Uyghurs, World Uyghur Congress and Uyghur Human Rights Project. You can donate to them and can sign petitions organised by them. Plus write to your local MP so that they can join people like Mahmood in putting pressure on the UK government to act.

Watch Mahmood’s speech in full here.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”Read more on China” category_id=”85″][/vc_column][/vc_row][vc_row][vc_column][/vc_column][/vc_row]

Call to end impunity for those involved in journalists’ murders

Ahead of the International Day to End Impunity for Crimes against Journalists on 2 November, 12 partner organisations of the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists – including Index – are calling on governments to ensure that crimes against journalists are not carried out with impunity.

Earlier this week, the case of courageous Maltese investigative journalist Daphne Caruana Galizia was moved to the Council of Europe’s category of journalists killed with impunity. The three men charged with her murder have yet to be brought to trial, while those who masterminded her assassination remain at large.

She is one of 36 journalists whose cases remain open on the Council of Europe Platform. As many as nine of the cases, including those of Dada Vujasinović and eight Serbian and Albanian journalists, date back more than 20 years. The platform partners call for thorough investigations to be carried out with the aim of bringing those responsible for their deaths to justice.

“Journalists are killed in an effort to silence their voices, as well as to discourage others from carrying on their line of work. The chilling impact on media freedom is exacerbated when their killers remain at large. We urgently call on governments to tackle impunity by carrying out effective and independent investigations into the deaths of those journalists murdered with impunity. Freedom of the press is unattainable without full justice,” said Jessica Ní Mhainín, Index on Censorship’s policy research and advocacy officer.

At the same time, the undersigned partner organisations welcome the recent indictment of four suspects, including the alleged mastermind, of the murders of Slovak journalist Ján Kuciak and his fiancée Martina Kušnírová. However, they emphasise that all those involved in the crime must be convicted in order to fully prevent impunity. Slovak authorities must investigate and take action against associated wrongdoing, including the mass surveillance of journalists prior to Kuciak’s murder, and take concrete steps to protect journalists’ safety in the future.

In the 2019 Annual Report of the Council of Europe Platform, the partner organisations expressed concern that “a climate of impunity has started to take hold in parts of Europe”. They said that “the swift completion of transparent and effective investigations and prosecutions leading to the punishment of all those found responsible […] is essential if public trust in states’ commitment to protecting the safety of journalists and the rule of law is to be restored.”

The partner organisations call on Council of Europe member states to fully implement the Committee of Ministers Recommendation on the protection of journalism and the safety of journalists and other media actors, which includes guidelines related to addressing impunity.

Index on Censorship
Free Press Unlimited
Pen International
ECPMF
INSI
EFJ
IFJ
Association of European Journalists
Reporters sans Frontières
Article 19
IPI
Committee to Protect Journalists

 

Index at ORGCon 2019

[vc_row][vc_column][vc_single_image image=”106859″ img_size=”full”][vc_column_text]Index on Censorship will be part of the Activist Space at ORGCon 2019.

ORGCon is hosted by Open Rights Group, which challenges the government’s mass surveillance programme to protect free expression online and push for better digital privacy protections.

Join us for a day of discussions, debates and action. Hear some of the world’s leading experts on data and democracy, free expression and digital privacy. Hear Edward Snowden, former intelligence officer in cybersecurity for the NSA, CIA and DIA and whistle-blower talk about mass government surveillance.[/vc_column_text][vc_column_text]

When: Saturday 13 July 10am-5pm
Where: Friends House, 173-177 Euston Rd, London NW1 2BJ
Tickets: From £10 via Open Rights Group

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