Online Safety Bill loophole opens door to unprecedented investigatory powers

A new report from Index on Censorship raises the alarm proposed legislation that could lead to unprecedented and chilling surveillance of British citizens under the Investigatory Powers Act.

Clause 122 of the Online Safety Bill provides Ofcom the means to break encrypted messaging services through ‘technology notices’ served without legal oversight. Once ‘Accredited Technology’ is used to break encryption, the Home Office has the power to use “bulk surveillance warrants” under the Investigatory Powers Act: providing access to encrypted private messages en masse for the first time.

Without urgent clarification in Parliament, there is a risk that security services such as MI5 can compel technology companies who operate encrypted messaging services to interfere with user communications or acquire masses of data in secret. There is no clarity to date on whether Ofcom would be notified under such circumstances nor whether Ofcom themselves could be subjected to a bulk surveillance warrant as a result of the data insights they gain in their role as an independent regulator.

The long-standing campaign against the use of encryption technology has now seemingly culminated in a two-pronged legislative attack against British rights to privacy and freedom of expression. This report outlines the (1) meaning of new enforcement powers under the Online Safety Bill, (2) the Surveillance Gateway that is being opened, (3) proposed reforms to the Investigatory Powers Act and (4) the key questions that Parliament urgently needs answers on.

On Monday, 11 September 2023, the House of Commons will review the Online Safety Bill for the first time in nine months in which they will decide whether they accept the Government’s amendments to introduce mass surveillance on British people and to sign off on a massive curtailment of journalistic freedoms.

Download the report here or read it below.

Secret agenda

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It is now more than 20 years since The Guardian and The Observer fought off attempts by the UK government to force them to hand over documents in the case of MI5 whistleblower David Shayler. At a judicial review, Judge Igor Judge concluded that demands to hand over journalistic material “would have a devastating and stifling effect on the proper investigation of the … story”.

The case reinforced the special status of journalistic sources in law – even in official secrecy cases – and established the principle that the police should not use journalists as informers.

As the Observer journalist responsible for writing the stories about Shayler’s disclosures, which included allegations of the involvement of UK intelligence in a plot to topple Libya’s Muammar Gaddafi, I was particularly concerned to see the latest proposals for the reform of the Official Secrets Act.

These include enhanced search powers to give police access to just the sort of journalistic “special procedure material” (notes, emails and recorded interviews) we fought so hard to keep from the police two decades ago. The new OSA would thus enshrine in law the “devastating and stifling effect” on journalism that so concerned Judge.

Much has happened in the two decades since The Guardian and The Observer’s principled stand in the High Court. The growth of digital technology, the emergence of global Islamist terrorism and the increased national security threat to the UK from Russia and China have given the government good arguments for reform of legislation that was enacted when the world wide web was in its infancy.

But the new act is authoritarianism by stealth – a full-on assault on media freedom, carefully hidden behind an apparently reasonable desire for reform.

The National Union of Journalists has rightly sounded the alarm over plans to increase the maximum prison sentence for breaches of the OSA, which currently stands at two years. This will have significant chilling effect on journalists investigating government wrongdoing and their civil servant sources. More worrying still is the distinction now being made between espionage and so-called “unauthorised disclosure offences” (ie, leaks to journalists). As the consultation makes clear, this government believes “there are cases where an unauthorised disclosure may be as, or more, serious in terms of intent and/or damage”. The argument is that a large-scale digital disclosure could benefit a number of hostile actors, whereas espionage is usually carried out by a single state. The effect, in practice, is that a journalist in receipt of secret documents could face a longer sentence than a spy.

Where the government really lets its authoritarian slip show, however, is in a section of the consultation about the number of successful prosecutions under existing legislation. The truth is that the record here is woeful. The government argument is as follows: “This is primarily due to the sensitive nature of the evidence that would typically be required to be disclosed in order to bring prosecutions, but also because of the age of the legislation, which means many of the offences are not designed for the modern world. Prosecutions, as a result, are challenging and rare.”

This is patent nonsense. In most cases, Official Secrets prosecutions fail because they should not have been brought in the first place.

Since the Shayler case, I have been involved in two other high-profile Official Secrets cases, both of which eventually collapsed. The first concerned Katharine Gun, a GCHQ whistleblower, who leaked details to The Observer of a covert US/UK operation to fix the vote at the UN Security Council in advance of the Iraq War in 2003.

As the recent film of the case – Official Secrets – made clear, the problem was not disclosure of evidence of the crime (Gun confessed to the leak) but disclosure that would lead to ministerial embarrassment about the legality of the war.

The second case involved a Foreign Office official, Derek Pasquill, who leaked details of government policy on radical Islam in 2006. Here again, the trial did not collapse over evidential disclosure. In this case there were serious questions over whether any of his disclosures should have been covered by the OSA in the first place.

For those who care about free speech, civil liberties and democracy, the most serious concern should be the resistance of the government to a public interest defence in such cases. This is where the British state and the British people come into direct conflict.

In the cases of Gun and Pasquill, there is no doubt they acted in the public interest to reveal uncomfortable truths for the government. Their revelations served not just the public interest but the national interest. If the new legislation had been in place at the time, it is quite possible that Gun and Pasquill would both have been sent to prison.

Boris Johnson, the UK’s journalist prime minister, has said he doesn’t want to see a world where people are prosecuted for doing their public duty. I look forward to his column condemning his government’s own Official Secrets proposals, which will create just that nightmare world.

This piece first appeared in the British Journalism Review


Judges “irresponsible” in Binyam Mohamed case

Lawyers for the foreign secretary, David Miliband have branded two senior judges “irresponsible” for wanting to disclose intelligence material related to allegations of torture involving the CIA and the UK’s alleged collusion. Jonathan Sumption QC, appearing for the foreign secretary, told the Court of Appeal the stance taken by High Court judges Lord Justice Thomas and Mr Justice Lloyd Jones could “seriously damage national security”.  The foreign secretary is appealing against six high court judgments ruling that CIA information on Mohamed’s treatment, and what MI5 and MI6 knew about it, must be disclosed. The appeal is being opposed by both Mr Mohamed and media organisations. The case resumes tomorrow and is due to last three days. Read more here

Anti-terror book blocked

A book by Britain’s former top counter-terrorism officer has been blocked from the shelves following an injunction by the Attorney General. Andy Hayman’s The Terrorist Hunters describes the fight against Islamist extremism from his inside perspective as Scotland Yard assistant commissioner.

It has been reported that the book was also vetted by the Cabinet Office, MI5 and MI6 but an explanation for the injunction cannot be published for legal reasons.