It’s the hottest trend in spooking: Take law-abiding citizens, usually business owners, and use the justice system to compel them into being your enthusiastic deputies. People pitch in by opening their doors, both physically and digitally, so the government can make use of any supposedly private user data they might have. The seeming enthusiasm of the collaboration comes from the fact that these same orders make it a crime to reveal the collaboration, so service providers must also actively deceive their own users about the true level of privacy they provide.
Now the UK is getting in on the action, as it’s been revealed that under the upcoming Investigatory Powers Bill it will have the ability to order companies to build software “backdoors” into their products, and revealing that collaboration could result in up to a year in prison. More than that, the government is also empowering itself to enlist the services of talented individuals like hackers, and to also legally restrain these people from revealing the work they’ve done — even in open court. In the US, these orders are called as National Security Letters (NSLs), and they have come to be routinely served to everyone from a small business owners to major corporate executives.
The bill, widely referred to as the Snoopers Charter, could also mean that citizens subjected to these secret orders, who decide to defy them, would be tried by secret courts and appeal to secret tribunals with zero public accountability or even disclosure of its decisions. This fundamentally makes resistance impossible — try to make a stink about what you see as improper use of government power in the UK, and the UK government may soon be able to respond with a judicial system not all that different from a black bag over the head.
The most famous battle over a National Security Letter in the US came when the creator of Lavabit decided that the only way to alert his customers to government snooping without going to jail was to shut down the service without notice or explanation. These sorts of laws, which not only grant powers but build into the system secrecy about those powers, stultify the discourse and make democracy fundamentally impossible. How do you set defense policy when you are not legally allowed to discuss the full range of defensive practices?
In the documentary CitizenFour, among many other places, NSA whistleblower Edward Snowden makes a point of saying that of all the Western intelligence powers, GCHQ, the signals intelligence agency of the United Kingdom, is the most invasive. While NSA has a strong sense of entitlement to push the boundaries of its constitutional limitations, it does exist within the context of those limitations and the tyranny-phobic American system in general.
As a Canadian, someone who has tried investigating even minor details about Canada’s SIGINT body, let me just say that while things may be getting worse in America, they are absolutely not the worst out there. The current parliamentary democracies, whether in Britain, Canada, or elsewhere, have the capacity to produce far less restricted governments and government agencies, while also subjecting those agencies to less meaningful public oversight.
Not that Americans should become any less noisy or demanding about their digital rights — things may be bad all over the Western world, but the fact that Americans are willing to complain so loudly is the only reason things haven’t gotten even worse than they are today.