Going postal: Does the reasoning behind the 'Snoopers' Charter' stand up?

Spelled out just yesterday, the Communications Data Bill has already attracted the hostility of digital rights activists, academics, the libertarian wing of the Conservative Party and even the Daily Mail.

The bill would force ISPs — and, in a little-reported twist, postal services as well — to retain data about communications for a year, during which time they can be requested by the police and security services. The contents of letters, emails and instant messages would not be logged, but the details of who contacted whom and when would be.

The draft bill (PDF) is one of the most impenetrably-written pieces of legislation I have encountered, which is saying something. It will take time to sift through its wording in detail, and there are many arguments to be had about the privacy implications, but it is worth starting with an examination of the bill's rationale.

After all, it is generally a bad idea to introduce new legislation without a solid reason for doing so. Here's what the home secretary, Theresa May, has to say in the draft's foreword:

"Communications technologies and services are changing fast. More communications are taking place on the internet using a wider range of services. As criminals make increasing use of internet-based communications, we need to ensure that the police and intelligence agencies continue to have the tools they need to do the job we ask of them: investigating crime and terrorism, protecting the vulnerable and bringing criminals to justice."

May's words have been echoed by senior police officers, notably Met commissioner Bernard Hogan-Howe, who had been lobbying hard for the changes.

The argument goes like this: the police and security services can already look at similar phone records quickly, but looking at internet-related records is a non-automated process that comes with the problem of some ISPs having sketchy or badly-organised records of what's going on over their networks.

The bill would change all that, making it possible to keep up with "communications data from new technologies", in May's phrasing.

Logical flaws

According to Wikipedia, the first national postal service in the UK was established in 1660. Letters themselves go back another three millennia or so. This is not new technology, but, as section 25 shows, the government's bill would demand records of all letters and parcels sent and received in the UK. In theory, at least.

Creating the structures proposed in the Communications Data Bill involves creating a level of surveillance that simply was not there before.

(I am very tempted to go into the impracticality of this, given the impossibility of tracing senders in most cases, and the government-borne cost too — but I'm trying to focus on the rationale stuff for now.)

The postal issue highlights a fundamental flaw in the reasoning behind the bill, or at least the way it is being pitched to the public. The bill is being framed as a means to update existing powers to suit the digital age. In reality, it appears that it is rather an attempt to harness the opportunities provided by the digital age to create powers that did not exist before.

Letters and postcards have never been logged and tracked, unless the sender paid for that to happen. Emails are the digital age's equivalent to letters. Creating the structures proposed in the Communications Data Bill (CDB) involves creating a level of surveillance that simply was not there before.

And using the bill to introduce postal logs for the first time proves that this is not all about keeping up with technology. It is about applying unprecedented rules to old technology as well as new.

In case the intellectual weakness of the justification is still not apparent, let me replace a few words in the bill's introduction with words that, given the bill's contents, would be just as accurate:

"Without action there is a serious and growing risk that crimes enabled by [postcards] and [parcels] will go undetected and unpunished, that the vulnerable will not be protected and that terrorists and criminals will not be caught and prosecuted."

Must try harder

If the government is to sell this bill to the public, the press and its own backbenchers, it will have to come up with a more plausible justification than — again in the words of Theresa May — internet-based communications being "less available and often harder to access" than earlier types of communication.

That is simply not the case. Without even starting to consider the privacy and legal implications of the bill, the foundations of this legislation look shaky at best.