The dark threat of the Snooper's Charter

Just hours after marching alongside world leaders in Paris in the name of liberté, David Cameron backed the revival of the Snooper’s Charter in terms little short of terrifying.  Free speech, it now seems, is only acceptable only when it can be accessed and reviewed by the state. Speaking to ITV, Cameron said:

…ever since we faced these terrorist threats it has always been possible, in extremis, with the signature of a warrant from     the home secretary, to intercept your communications, my communications, or anyone else, if there is a threat of terrorism. That is applied whether you are sending a letter, whether you are making a phone call, whether you are using a mobile phone, or whether you are using the internet. I think we cannot allow modern forms of communication to be exempt from the ability, in extremis, with a warrant signed by the home secretary, to be exempt from being listened to.

The Independent claims that restricting communication to interceptable channels would not just hit typically ‘nefarious’ spaces like the dark web, but any service that encrypts user’s data in a way which shields it from security services. This could include billion-dollar chat service WhatsApp, along with others like Snapchat and Apple's iMessage. Such companies would have to acquiesce to government requests for data and re-writing their software if required, or risk outlaw and the persecution of their users.

This would not be the first time that a government surveillance programme closed down commercial ventures. In 2013 Edward Snowden’s email provider of choice Lavabit chose to close its doors rather than be forced to install surveillance equipment on their network and hand over private encryption keys to the US Government. Silent Circle suspended their email service shortly after.

It’s difficult to predict the impact to the UK’s digital economy should Cameron press on in this vein. Compromising on privacy is something which WhatsApp in particular is unlikely to do. In November, it switched on end-to-end encryption for Android devices, with plans to extend this all 600m+ of its users. Growing up in communist Ukraine, for co-founder Jan Koum user’s privacy is not just a feature, but a defining characteristic of the product:

I grew up in a society where everything you did was eavesdropped on, recorded, snitched on….Nobody should have the right to eavesdrop, or you become a totalitarian state -- the kind of state I escaped as a kid to come to this country where you have democracy and freedom of speech. Our goal is to protect it.

Cameron’s newly- resurrected charter not only challenges a service used by hundreds of millions across the globe, but stands as a barrier to the very value of free expression western politicians profess to uphold. It is more than just a tool to listen in on ‘the bad guys’. And it doesn’t just affect the criminals and extremists, for it strikes right at the heart of our digital infrastructure and dictates exactly what channels of (monitored) communication British citizens are permitted to use to exercise our apparently hallowed right to free speech.

However, whilst the world’s typical, centralized communication industries are at risk from the government’s surveillance fetish, new forms of decentralized, distributed software and communication channels ­­­– which have no centralized store of user information or cryptographic keys to raid­– would be near impossible to bring to heel.

As ASI Fellow and COO of Eris Industries Preston Byrne explains:

David Cameron has said he wants to 'modernise' the law. I think he fails to understand just how out of date his worldview is. The only way you can shut down encrypted distributed networks today is to either arrest every person running a node and ensure that the data store containing a copy of that database is destroyed, or shut down the internet. Curtailing free association and private communications in the manner proposed is a battle the government is going to lose.

Banning end-to-end encryption will do nothing to prevent the technology from falling into the wrong hands - as any encryption technology worth a damn is open-source, and freely available to all - but will do a great deal to criminalise entirely reasonable measures taken by ordinary people to protect what private lives they have left.

To hang the case for a significantly reduced private sphere off the back of last week’s attacks is opportunistic, unpleasant, and distasteful. The tragedy in France has far more to do with issues of free speech, toleration and extremism than national security. The perpetrators of the French attacks were already known to intelligence officials, as was also the case in the 7/7 bombings and Lee Rigby’s murder. Hardly any acts of terrorism are by relative unknowns, who might have been identified were surveillance laws just that bit wider-ranging. Granting further powers and bigger budgets to security forces might show how ‘serious’ we are that ‘something must be done’, but arguably let agencies off the hook in terms of actually following up on already acquired intelligence.

No doubt Cameron has underestimated the scale, if not the significance, of what he proclaimed yesterday, and his attempt to create a surveillance-friendly communications ecosystem will be futile. But his words represent a threat in many ways much larger and darker than the terror he pledges to protect us from.

Should libertarians care about Brendan Eich's resignation?

Mozilla CEO Brendan Eich has resigned his job after just 10 days in the role. This came after it was rediscovered that he gave $1,000 to Proposition 8, a direct democratic move to ban gay marriage in California, that narrowly passed. Upon discovering this, twitter and other areas of the internet mobilised, with 72,000 supporting a petition to the board to sack him. One libertarian perspective might be that, since no negative rights were infringed, this was an entirely defensible use of social pressure to enforce social norms—Eich contributed to a proposal that many libertarians believe would restrict the rights of gays. For this perspective, the Eich situation is proof that state intervention is not needed to achieve socio-political equality for groups considered oppressed. It's very very interesting that many progressives are actually using the rhetoric of thin libertarianism, which they would usually abhor, to defend their position on the issue.

Contrariwise, an alternative "thick" libertarian perspective might hold that people have the right not to be hounded out of their job for opinions they hold and do not enforce on others—by all accounts Mozilla is a highly equal-opportunities place for LGBT people. For this perspective, Eich's resignation is a worrying indication that First Amendment—freedom of expression—rights are disappearing. But confusingly, some would call the hounding position the true "thick" libertarian view, since it says that legal rights alone do not guarantee gays' freedom.

A third perspective might say that although this resignation, considered alone, might not be regrettable, because it advances gays' freedoms, as a rule people should not lose their job for holding certain political perspectives and even actively supporting them. This would hold especially strongly if we agreed that the small donations Eich made were unlikely to actually change anything.

I think all of these perspectives have merit as libertarian responses to what's happened. But whatever the normative issues here, I think the whole situation is much more interesting as an illustration of a positive (i.e. descriptive, not morally loaded) historical trend and tendency that is becoming, in my opinion, more and more obvious. Gay marriage was on almost no one's radar in 1990. In 2000 it was still only an utterly minority idea even among gays.

In 2008 (the same year as Prop 8, and the end of the google ngrams data range in the previous link), US President Barack Obama was elected and specifically opposed gay marriage. Between 2008 and 2014 gay marriage has gone from something a liberal Democrat felt he could not guarantee election without opposing, to something that a chief executive (admittedly a Silicon Valley chief executive, of a particularly "socially aware" firm) has to favour, or at least not outwardly oppose, to keep their job. This is astonishingly rapid.

And various issues suggest that maybe this ousting had little to do with a cost-benefit analysis. Let's assume the best argument in favour of ousting him is that (a) he tipped the balance in favour of anti-gay marriage in the past, and this delayed gay people gaining their deserved marriage rights, and (b) his position at the top of Mozilla will stop it being truly equal to gay employees and consumers. That is, let's assume that the left-leaning people who got Eich overthrown do in fact wish Eich to have meaningful freedom of conscience and speech, but they also think it's fair to censor him if he acts based on those in ways which increase oppression or reduce social welfare.

(This isn't entirely accurate: some do think that people genuinely shouldn't be able to be both employed and hold personal anti-gay marriage perspectives. But I see personal opinions (many of which are genetically heritable) as a much weaker justification for the hounding and the principle of charity dictates I tackle the strongest possible opposing argument here.)

The fact that showing neither (a) nor (b) has even been attempted in any of the myriad of news and commentary I've seen on the issue is telling (I'm open to being refuted here). Indeed, none of the commentary I've seen has even mentioned these issues. And what's more I bet Eich-resignation-advocates wouldn't change their minds if we discovered that Mozilla's currently pro-LGBT policies were impervious to CEO influence, and that his $1,000 did pitifully little to change the outcome of Prop 8, never mind the overall progress of gays' marriage rights.

This suggests to me that this is about policing heresies. This is a doctrinal dispute. I wonder if Eich would still be in his job had he publicly stated regret at his old anti-gay marriage perspective and repudiated it forcefully. I bet he would. And this brings me to the final point: libertarians should care, but not because the instance itself is necessarily a bad thing—an ugly, base, low, cowardly, mean thing certainly, but it might pass a cost-benefit analysis if we really did one—but because of this trend. Progress appears to be an unstoppable juggernaught, and it might be speeding up.

The Internet Watchmen

As Tim Worstall notes, new government plans to block online terrorist and extremist content are extremely worrying. Along with the introduction of default 'opt-out' porn filters and the criminalisation of rape porn, they are another example of Cameron's politicised censorship of the web. Whereas reducing the proliferation of child abuse images is a good thing, this new measure results in the censorship of ideas. Furthermore, whilst it is relatively straightforward to identify child abuse imagery, it is much less so (and arguably impossible) to decide which ideas are 'too dangerous' to viewed in the UK.

Aside from these issues there is also the question of how such a content block would work in practice. In many ways, how to block can be as problematic as the censorship itself.

The government has said that it wants to model the new blocking unit on the Internet Watch Foundation: a part-EU, part internet industry-funded UK 'hotline' for child abuse imagery. The IWF assesses material submitted by the public and flags up UK-hosted content to be removed by service providers. Content from outside the UK is added to a URL 'blacklist' which ISPs then block UK access to.

There are a number of issues with this model. First, there is no guarantee that what the IWF flags up is actually illegal. With no legal clout, the IWF acts on content it deems 'potentially illegal' - and there is little to stop legitimate content getting wrongly marked. One controversial case saw a picture of an album cover on Wikipedia getting blocked until the backlash forced the IWF to reverse their decision. Appealing against the IWF's decisions can be a difficult and opaque process, not least because of the difficulty of appealing against the illegality of an image you can't even see.

Despite the IWF's lack of legal authority, the Open Rights Group claims that their blacklist has never been assessed by a court or legal body. This makes their actions rather murky. Given its sensitivity ISPs can't see the content of the blacklist to make their own judgement; they must either block all of it or none.  On top of this, there are also problems with the technology ISPs use to actually block the URLs - which can be unreliable and block too broadly.

In addition, from April 2014 the IWF will shift from a being reactive body -acting only on content sent to it - to a proactive one, actively seeking out images of abuse behind pay walls and on peer-to-peer networks.  This approach is another step in the active policing of the web, and is also likely to be followed by the new anti-extremist unit.

Issues of political and religious censorship are much more complicated than that of child pornography. The unaccountability of the IWF and its lack of judicial oversight  therefore make it a poor model to copy for what is an incredibly controversial (and dangerous) policy. Since the new unit will be publicly funded, its decisions may come under greater legal scrutiny. On the other hand, a government-funded body could become politicised and overzealous in its mission. In any case, a clear due process and a rigorous appeals system will be absolutely essential.

Crime & security minister James Brokenshire says an update on the proposals will arrive shortly, though the fact that civil liberty groups claim not to have been consulted on the matter is rather worrying. The sensible thing to do would be to scrap this idea altogether. Since this is unlikely to happen, both the politics and the technicalities of the initiative are bound to prove difficult indeed.

Tor, Bitcoin and the Silk Road: three forces for good

Since the arrest of Ross Ulbricht aka 'Dread Pirate Roberts' — the alleged mastermind behind the Silk Road — media attention has in part focused on the role of legal technologies Tor and Bitcoin in its operation. Silk Road was an online black market where all kinds of restricted and illicit goods (from illegal drugs to forged passports) were sold in an eBay-style setting. Because of the nature of its wares it made up part of the 'deep web' - accessible only by using software such as Tor, which enables user anonymity by obscuring their location and usage, making surveillance incredibly difficult. Its illegality also prevented customers from paying via card companies or PayPal, so business was done using the crypto-currency Bitcoin.

Whilst talk of Bitcoin and Tor is old hat amongst technophiles, reporting of Silk Road's takedown is probably one of the first times that many people would have heard about such technologies. And, understandably, when their raised profile comes in association with a giant underground marketplace in drugs and a man charged with charged with ordering an assassination, people may be swift to discount them as 'hacker tools', or look upon them unkindly. (The Guardian's leak of GCHQ's presentation 'Tor Stinks', which depicts an apparently typical terrorist Tor user masked and toting an assault rifle (and sat in front of a giant onion) is in this respect both amusing and depressing.)

However, Tor and Bitcoin aren't used just for shady dealings. Both can be used to great benefit — Tor in providing freedom and safety online, and Bitcoin in encouraging financial and monetary innovation.

There are huge numbers of people who aren't terrorists, sex offenders or drug barons who benefit from anonymising software such as Tor, and those whose lives may depend on it. Tor allows people across the globe to communicate freely when doing so is risk and the internet is monitored or subject to blocks. It circumvents national firewalls, empowering and educating citizens who would otherwise be restricted. It allows whistleblowers to divulge their information anonymously, journalists to share news, and activists and citizens to criticise, dissent and organise in protest. Millions around the world benefit from Tor.

And it isn't just citizens in oppressive regimes who benefit — Tor is used by the military in operations to protect their location whilst communicating securely. It could also be argued that concerned parents can help protect their child online by using Tor to mask their location. Whatever else Tor may be used for, its capacity to liberate and protect is great.

Similarly, the development of crypto-currencies such as Bitcoin carry with them great potential. Bitcoin is an open-source, peer-to-peer electronic currency. It has no central issuing authority; the money supply is increased as users's computing power crunches numbers to verify pervious transactions. This has made crypto-currencies very interesting to those who wish to abolish central banks and establish new forms of currency. But Bitcoin also has a growing number of practical uses.

Increasing numbers of vendors are accepting payment in Bitcoins and it can be used to pay for things from Wordpress services to pizza. It doesn't require any third-party intermediary such as credit card companies or PayPal to process payments, making transactions cheaper and easier. This can lower transaction costs for businesses, which, were Bitcoin to become widely adopted could also be passed onto the consumer. The Mercatus Center's primer on the currency suggests that this aspect of Bitcoin could also revolutionise the global redistribution of wealth. In 2012 immigrants to developed countries sent $401 billion back home to developing countries. The average fee doing so at places like Western Union is close to 10%, whilst fees for similar services using Bitcoin are less than 1% of the transaction. Wiring companies are looking at integrating Bitcoin services into their own, and if they were to do so this would be a tremendous boon for the poorer people of the world.

Transferring traditional currency into Bitcoins can also allow people to overcome domestic economic problems and the consequences of corruption. With tight capital controls and an inflation rate of 25%, it is no surprise that Argentinians are some of the most enthusiastic users of Bitcoin. Other great uses of Bitcoin, such as in conjunction with SMS banking in developing countries, are developing all of the time. Bitcoin definitely has the potential to be more than a plaything for nerds and a way of buying hash.

Cathy Reisenwitz is right: the world is less safe now that Silk Road is gone. The violence associated with drug dealing is not a consequence of the products, but of their illegality. As a stable, trusted and effective platform Silk Road removed that need for violence. Drug laws need a serious overhaul, and the user rating and delayed payment system of Silk Road offer a great model for a legal marketplace for drugs. I therefore think that it is great that technologies such as Tor and Bitcoin are being put to such use.

However, many will disagree. This is why it is important to point out the great potential and liberating capabilities of these technologies before people discount them, or worse turn against them. No technology in itself is 'good' or bad' - what matters is how it is put to use, and while we worry about the potential dangers of new technology, we should remember its use in positive ways too.

An open letter to the government on the Lobbying Bill

The government's Lobbying Bill is a serious threat to free speech and will curb the activities of think tanks, charities and other groups whose participation in political debate is vital for the political system to work openly. That's why we've co-signed the letter from other think tanks, below, urging the government to drop this bill.

We wish to highlight our grave concern about the Government’s Lobbying Bill, a piece of legislation that poses a significant threat to legitimate campaigning freedom of speech, political activism and informed public debate.

Part II of the bill threatens the ability of charities, research and campaigning organisations to inform the public debate, fulfil their missions and raise awareness of important issues. The current drafting would capture a huge number of organisations who would not presently be considered as relevant to electoral law and who do not receive any state funding. It also threatens to dramatically expand the range of activity regulated far beyond any common sense understanding of commercial lobbying.

We do not regard the Cabinet Office’s assurances as sufficient given the widespread legal doubts expressed from across the political spectrum. It cannot be a prudent approach to legislate on the basis of assurances that enforcement will not be to the full extent of the law. The exceptions offered are unclear and unconvincing.

The lack of clarity in the legislation further exacerbates its complexity, while granting a remarkably broad discretion to the Electoral Commission. The potential tidal wave of bureaucracy could cripple even well-established organisations, while forcing groups to reconsider activity if there is a perceived risk of falling foul of the law. This self-censorship is an inevitable consequence of the bill as it stands.

We urge the Government to reconsider its approach and to urgently address the fundamental failings in this legislation.

Yours Sincerely,

Mark Littlewood, Director General, Institute for Economic Affairs Simon Richards, Director, The Freedom Association Tim Knox, Director, Centre for Policy Studies Matthew Sinclair, Chief Executive, Taxpayers’ Alliance Jo Glanville, Director, English PEN Emma Carr, Deputy Director, Big Brother Watch Eamonn Butler, Director, Adam Smith Institute