Wendy M. Grossman
While Americans gnash their teeth about the FBI's Carnivore spying technology, U.K. legislators pass a law that could let cops read your messages.
Topics: Entertainment News
Americans are used to thinking of Britain as the source from which most of the principles of our democracy flow, a country for which these principles are so innate it doesn’t even need a written Constitution. The reality is increasingly different.
Compare and contrast. On July 14, the Wall Street Journal broke the news that the FBI was using an Internet wiretapping system known as Carnivore to intercept and access e-mail. By July 24, FBI assistant director Donald Kerr was explaining Carnivore to Congress. By Aug. 15, a federal appeals court had ruled, in response to a suit from the Electronic Privacy Information Center and others, that law enforcement officers must get a Fourth Amendment search warrant before they can have access to “packets from which call information has not been stripped.” The ruling, it seems, makes Carnivore illegal. In Britain, on the other hand, on July 28 the Regulation of Investigatory Powers Act (RIP) became law, requiring all Internet service providers to install and maintain interception equipment for the benefit of law enforcement. Yes, agents will have to get a warrant. But that warrant will be issued by the politician at the head of the Home Office (Britain’s equivalent to the Justice Department), not by a judge.
The government mantra is that the new legislation merely updates existing laws for new technology. British law enforcement folk, just like their American counterparts, argue that new technology such as strong encryption hinders their ability to investigate serious crimes, and that therefore they must have guaranteed access to all electronic communications. In the United States, this thinking has led the Clinton administration to push several policies: key escrow, the practice of storing a copy of every user’s decryption key; restrictions on the deployment of strong cryptography through the International Traffic in Arms Regulations; and the Digital Telephony Act, which requires a wiretap-friendly design for telephone networks.
In mid-May, the news broke that the security service MI5 is building a $37 million facility that will have the power to monitor all e-mail sent and received in Britain. Under this scheme, Internet service providers like Freeserve, Demon Internet, America Online and others who serve U.K. customers will be required to hard-wire their systems into the monitoring center. Given that messages are routed across the Internet without regard to geography, and that many Americans and Europeans communicate with people in the United Kingdom, this is more than a matter of British national interest: The e-mail they’ll be reading could be yours.
RIP’s provisions regarding encryption keys slide right into this surveillance scenario. If British law enforcement officers want access to your encrypted data — and in our electronic era that may be anything from your love letters to the details of your last medical exam — they can throw you in jail for up to five years if you can’t or won’t produce the necessary key and can’t produce a good reason why. Under some circumstances, not specified, they can slap a secrecy notice on you, under which you will not be allowed to tell anyone except your lawyer that your e-mail is being decoded. Your innocent, confiding correspondents won’t know. These particular provisions have been watered down a bit from the draft legislation, which reversed the burden of proof so that if you refused to produce your key you could be presumed guilty.
In a way, this is all sadly less surprising than it might be. British subjects’ right to remain silent without self-incrimination — what Americans call taking the Fifth — was done away with in 1994 by the Criminal Justice and Public Order Act, which also included restrictions on the right to peacefully assemble. In addition, the 1996 Criminal Procedures Act significantly altered the regime for the disclosure of evidence. For the first time in English law, defendants are now required to disclose the basis of their defense, while the prosecution is given greater discretion than it had before. The upshot, according to Justice, a lobbying organization, is to place a great deal of discretion in the hands of the police, who may make errors about what is relevant information. According to Justice, this system has been controversial enough that the entire criminal justice system is now under government review.
The theoretical savior in this mix is the European Convention on Human Rights, which comes into effect in October and includes principles such as freedom of speech and the right to privacy. Relying on a court most people in Britain still perceive as foreign, however, isn’t much comfort, especially since it can take five years to get a case to the European Court. Oddly, the British government used the ECHR as a justification for rushing RIP through: The Home Office claimed that some prosecutions would have to be dropped if RIP didn’t get through before October.
You’d think that claim would give it a clue that what it is doing is slowly but surely eating away at the fabric of one of the world’s oldest continuous democracies. In terms of the economic future Tony Blair’s government claims to care about so much — his current mantra is that he wants to make Britain the “best place to do e-commerce” — RIP is even more foolish. A British Chamber of Commerce report, published in mid-June, estimates RIP’s direct cost to ISPs at $964 million, and the overall cost to Britain as businesses relocate overseas at $52 billion over five years.
For Americans, RIP should serve as a warning. Don’t get too comfortable just because Carnivore failed in the courts. The United States and the United Kingdom have traveled in lock step on restricting cryptography and other Net freedoms, and the legislation they try to pass in one place inevitably pops up in the other, though not always in the same form. And they keep trying.
More Related Stories
- How Dan Savage lost it
- Nancy Jo Sales on L.A. celeb robbers: "The Bling Ring kids were depressed"
- “Arrested Development,” hurry up and get here so you can stop being so annoying
- Must-do's: What we like this week
- Josh Ritter makes his "Blood on the Tracks"
- I don't hate millennials anymore!
- What's 2013's "Gone Girl"? Here are this summer's best reads
- Fox executive behind "Does Someone Have to Go?" leaving the network
- Hillary Clinton memoir shows up on Amazon
- A brief history of Jennifer Weiner's literary fights
- First look: Joaquin Phoenix, Marion Cotillard shine in "The Immigrant”
- No women allowed: Summer music festivals are dudefests, again
- Vivica A. Fox tapes anti-gun PSA in front of poster for her movie
- This is what Guy Fieri looks like as a balloon
- Mariah Carey's rambling, cursing, dress-popping "Good Morning America" concert
- Fox's new reality TV show threatens regular people with unemployment
- Amanda Bynes arrested after hurling bong from window
- Steamy lesbian-sex movie has Cannes abuzz
- Stop what you're doing and go watch "Borgen"
- Teenage girl claims she was beaten up for looking like Taylor Swift
- Mike Judge: "Bowling for Columbine" made me pro-gun
Featured Slide Shows
The week in 10 picsclose X
- 1 of 11
Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
Credit: AP/LM Otero
Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
Credit: AP/Matt Rourke
A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
Credit: AP/Jenny Aicher
Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
Credit: AP/Molly Riley
Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
Credit: AP/J. Scott Applewhite
Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
Credit: AP/Carolyn Kaster
O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
Credit: AP/Las Vegas Review-Journal/Jeff Scheid
Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
Credit: AP/NASA/Chris Hadfield
When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
Credit: AP/Jacquelyn Martin
A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
Credit: AP/The Duluth News-Tribune/Clint Austin
Recent Slide Shows
- 1 of 11