The data bill debate must move beyond terrorists and Orwell

It is wrong to define the argument over the bill as one between security and liberty.

For almost a decade, the intelligence and policing community has been worried that changes in modern communications – mainly the shift from telephones to more varied devices and networks – would make their work more difficult. And each government of the day has tried (and failed) to push through legislation to update capabilities in the face of staunch opposition.

The latest attempt is the draft Communications Data Bill. To recap, the Bill aims to improve government access to internet "communications data" (who, when, and where you communication with someone, but not what you say to them). Communications data are vital for law enforcement, intelligence work and the Crown Prosecution Service. When these agencies needed this information, they used to go to the small number of telecommunications companies who collected it. Now of course we communicate via e-mail, social media messaging, phone apps, game platforms and more - so now communications data are being generated by all sorts of companies who don’t routinely collect or save it, and so it's not always there when needed. The Bill is asking/demanding/paying relevant companies to collect and retain it, so that such data is available on request.

Such was the furore when it was announced back in April that a pre-legislative joint committee was scrambled to calm the maelstrom and review the proposals. Today it published its report. Anyone familiar with the Bill would not have been surprised by its findings. To sum it up as briefly as possible: yes, the government needs to improve access to communications data, but the Home Office did not make the case well enough, nor consult widely enough. The powers contained in the Bill are too broad in scope - and greater oversight is needed. Go back and re-draft it. The committee has been extremely diligent (and I hope David Davis MP will apologise to the chair, Lord Blencathra, whom he had little faith in). But I think there are three big lessons from this whole affair.

First, the bitter rancour surrounding this Bill is caused by a fundamental problem. State surveillance needs to be proportionate and necessary, but these words are losing all meaning, because no one really understands the technology and the possible risks and benefits that come with it as internet-enabled devices become ever more ubiquitous, least of all our law makers.  When critics protest the measures will not work, or 'we're the only country that does this', the Home Office are unable to respond with technical details for obvious reasons. And the government wants to make the legislation broad – ‘future proofed’ - because the technology will have moved on again soon, and they don’t want to go through this again in two years. This Civil liberty groups, understandably, weren’t too pleased about that. This is going to get worse in future.

Second: terrorism and paedophiles do not automatically trump digital rights. The Home Secretary, Theresa May, has consistently argued the new Bill is essential to tackle terrorism, serious crime and paedophilia. She may have believed that any law strengthening powers to do that would be more or less accepted. In that, I believe she may have underestimated how important digital freedoms and data sovereignty are to people today. Surveys consistently show that data and privacy are among the top concerns citizens have. The online and privacy community – often tech savvy, networked, and highly defensive of internet freedom – are a powerful lobby group.  

Third, any legislation about security powers tends to degenerate quickly into a debate about terrorists versus an Orwellian dystopia. Last Monday, in an interview with the Sun, the Home Secretary said that anyone against the draft Bill is putting politics ahead of people’s lives; and came close to saying anyone opposed to the Bill is taking the side of those criminals, terrorists and paedophiles. It was an unfortunate and inaccurate charge levelled against the Bill’s many thoughtful and principled opponents. But the Bill’s opponents have also been alarmist by (inaccurately in my view) calling it a "snoopers' charter" and claiming it represents mass internet surveillance. Suggestions that this Bill would put us alongside China, Iran and Khazakstan are wholly inaccurate. When giving evidence to the committee, the Observer journalist Henry Porter (who also called the Bill the "megalomaniac dream" of a senior civil servant) said that these measures could become "the structure for a police state" – something the Crown Prosecution Service and others that have actually used communications data dismissed.

Ignore the papers this morning: the committee’s response is a sober and careful one. At core, it recognises that the philosophical pros and cons of the Bill are not really about security versus liberty, but the more nuanced debate of pro-active data collection (collecting and retaining data so it’s there if you need it) against a more limited one (using what you have), and whether we need to ‘future proof’ law of this kind (it thinks not). It realises that modern communication has changed dramatically, and law enforcement must keep up, including in designing a regulatory system that reflects the changing concerns people have about privacy. It recognises this is not easy and will ultimately fall to Parliament.

This means going back and re-drafting a Bill that trades a bit of operational secrecy for clarity about when and where the measure will be used. Above all, the Home Office should consult more widely, and then set about some improved drafting to eliminate worrying ambiguities, give a tighter clarity of purpose, and include tougher scrutiny and oversight. A revised Bill could keep both sides content.  This is all less interesting than terrorists and Orwell, of course, but then making law usually is.

Jamie Bartlett is the head of the Violence and Extremism Programme and the Centre for the Analysis of Social Media at Demos.

Home Secretary Theresa May warned MPs who oppose the bill: "Do not put politics before people’s lives." Photograph: Getty Images.

Jamie Bartlett is the head of the Violence and Extremism Programme and the Centre for the Analysis of Social Media at Demos.

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Why Theresa May is a smuggler's best friend when it comes to child refugees

Children prefer to disappear than trust the authorities.

On Monday, Theresa May abolished the post of minister for Syrian Refugees. On Tuesday, a House of Lords select committee report found there were 10,000 migrant and refugee children missing in the EU, of which Britain is still technically a part. And smugglers across the continent raised a glass.

Children do not stay still. In 2013, Missing Children Europe reported that half of unaccompanied children placed in reception centres vanished within the next 48 hours. One explanation is that they fall prey to the usual villains – pimps and gangs. 

But there is another explanation. Refugee and migrant children have so little trust in the authorities that they would rather disappear and put their faith in the underworld. 

One reason for this is that under EU law, asylum seekers are returned to their first point of entry, which is likely to be an overcrowded Greek port rather than a city with education facilities and job prospects. 

Children will go to extreme measures to disappear. The report noted:

“We were particularly troubled to hear of children in Italy and Greece burning or otherwise damaging their fingertips in order to avoid registration, in many cases because they were afraid of being detained or forcibly returned to transit countries having reached their final destination.”

Children are also desperate to find their families. The EU’s Family Reunification Directive should in theory reunite families who have successfully sought asylum, but the UK has opted out of it (and now the EU altogether). Other EU member states have moved to restrict it. The UK has opted into the Dublin Regulation, which allows for family reunification. 

This is partly due to a suspicion that family reunification acts as an incentive for families to send children first, alone. But the report found no evidence of that. Rather, it is usually a case of parents trying to protect their children by sending them out of a dangerous situation. 

The process can be achingly uncertain and slow. Smugglers understand how impatient children are. Two MEPs told the select committee about the port in Malmö, Sweden:

"Traffickers await the arrival of minors, telling them that: 'Well, we can get you to your family much quicker than if you go through the system here' and that 'Getting a guardian will take ages, and then they do the age assessment, which is intrusive. Don’t do that. Just go there, call this guy, take this mobile and they’ll take care of you.'”

In his brief time as Syrian Refugees minister, Richard Harrington brought the topic of unaccompanied minors to MPs again and again. He promised to improve the speed at which applications under the Dublin Regulation were processed. On 13 June he told MPs: “We are doing our absolute best to speed it up as much as we can.”

His role has now been absorbed into the Home Office. No. 10 described it as a temporary position, one no longer needed now the resettlement programme was underway. When the UK finally triggers Article 50 and begins Brexit, it can also leave its EU obligations behind as well. May, the former Home secretary, voted against allowing in 3,000 child refugees.

This does not bode well for asylum policy in Brexit Britain. Meanwhile, with no fast legal route to family unification, smugglers can look forward to the kind of bumper profits they enjoyed in 2015

The consequences can be fatal. Masud, a 15-year-old unaccompanied Afghan, travelled to Calais in the hope of reaching his sister in the UK under the family reunification rules. 

As the report put it: “Masud died in the back of a lorry while trying to reach the UK just before the New Year, having lost hope that his claim to join his sister would ever be heard.”