Home Office proposals to increase the surveillance of the communications activities of all UK citizens have serious flaws and can't work in their present form, says a new briefing, published today (Wednesday 17 June).
The briefing by the Policy Engagement Network at the London School of Economics and Political Science (LSE) examines a consultation document released by the British government in April 2009 on their Interception Modernisation Programme . Telephone companies and internet service providers are already compelled to retain 'communications data' for all their customers, at least 70% of the population, for a period of 12 months. Under Home Office proposals, internet service providers would be required to retain much more information and pre-analyse it.
But the proposals can only work, LSE academics and others say, if entirely new laws are passed by Parliament and if the public can be persuaded that the threats from terrorism and crime are so extensive as to justify ever greater levels of intrusion and expenditure.
Furthermore, the Home Office has not given adequate consideration to the practical and financial challenges of the technologies that would be used to give law enforcement agencies enhanced access to internet traffic. Nor has it provided detail into how the quoted cost of £2bnto implement its Interception Modernisation Programme was reached, which raises substantial questions as to what is and what is not included in their cost estimates and from where the costs would be met.
The Briefing discusses alternatives to the present legal structures and highlights areas that the authors feel still need serious examination before adequate legislation can be passed. The questions that still need to be answered include: Is it still feasible to distinguish between content and communications data? Who will actually control the 'DPI Black Boxes' to be installed at content service providers? And how is mutual legal assistance to be encouraged so that people using foreign mail providers can be monitored effectively?
Professor Peter Sommer of the Information Systems and Innovation Group at LSE says: 'The Home Office are right to be concerned about the impact on investigations of the ways in which criminals and others may use the internet. However they are wrong to think that this can be done by light tinkering with existing legislation.
'Current law is based on the old fashioned telephone. There are two main powers; the first is a demand by a senior law enforcement official for "communications data" – who called whom, when and for how long, in effect something like a detailed telephone bill. ISPs retain all of this for 12 months in case law enforcement decide to ask for it. The second and much more intrusive power – a warrant to intercept the content, that is, eavesdropping on what is said – is granted not by judges but by the Home Secretary of the day. Moreover intercept material is inadmissible – it can't be used or even referred to in court.
'But with internet technology you have to collect everything and then throw away what the law does not allow you to have or use. We think that at a practical level the communications data/intercept distinction will be impossible to intercept both for ISPs and the courts. Moreover the existing balance of protections against abuse will also be lost.
'We are also concerned that the Home Office is characterising its aims as maintaining an interception capability when police powers and capabilities to watch the public have increased significantly over the last 15 years. We need a full debate about the balance between threats to public safety, police powers, the effectiveness of safeguards and cost.
'The Home Office says the cost to the tax payer will be £2bn but provides no clue as to how this was derived. Moreover much additional burden is being placed on internet service providers, the same people who under the Digital Britain plans are also expected to provide the UK with high-speed internet connection as a cheap universal service.'
Download Briefing on the Interception Modernisation Programme by the LSE Policy Engagement Network.
Professor Peter Sommer, LSE, 07802 898135, 020 8340 4139
Dr Gus Hosein, LSE, 07970 462041, 020 7955 6403
The Policy Engagement Network is part of the Information Systems and Innovation Group at the London School of Economics and Political Science (LSE).
 These are the boxes that are supposed to filter the entire data stream fed to all of the content service providers' customers, extract the 'communications data' element for retention for 12 months while rejecting the content.