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Simon Phipps

With a focus on open source and digital rights, Simon is a director of the UK's Open Rights Group and president of the Open Source Initiative. He is also managing director of UK consulting firm Meshed Insights Ltd.

Zombie Problem: Stop Dancing On The Grave

Apparently the Communications Data Bill is dead. I wonder for how long? It's a zombie bill that has been killed before...

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In a welcome move at the end of last week, Nick Clegg announced his opposition to the communications data bill (CDB). His article in the Telegraph listed five reasons why CDB went “too far” in its attempted legislation. Among those reasons was the ease with which competent criminals could sidestep the effects of CDB and the alarming precedent the UK government would be setting for other countries in the scope of its jurisdictional claims. He’s not alone; these arguments and many more have been brought against CDB from a wide range of opposition.

Clegg finishes the article by suggesting a number of steps that could be taken in place of CDB. Increased data navigation training for police personnel and improving links with other international jurisdictions governing internet service providers are two of the ideas he mentions. That's all good, and I'd welcome positive actions that use existing laws to make things better. But whilst his rejection of CDB is clearly in the public interest, the counter proposals he brings up don’t really solve the long-term problem.

It’s not enough to just stop this bill. It's already a Zombie Bill, appearing from the grave time after time. The same sort of excessively invasive proposals arose unannounced in previous governments without appearing in their manifestos. There is clearly some underlying need deep in the Home Office that is making these proposals keep showing up in Parliament. 

I imagine each successive Secretary of State having a "Yes, Minister" moment where a shadowy civil servant explains that yes, the proposals seem invasive and yes, the parties in power expressed opposition to just those proposals when the previous government made them but blocking the proposals would be "a very brave decision, Minister".

Clegg presumably had that briefing and decided the Liberal Democrats' electoral position was desperate enough to risk that "brave decision". Bravo. But I don't think his actions will solve the problem for Britain long-term. Someone, somewhere (GCHQ? MI5?) knows there's a conflict between their desired operational actions and the law and needs it fixed as soon as possible. 

Consequently, the same proposals will simply claw their way out of the grave Clegg has dug for them one day and return in the night for our brains. To stop the Home Office bringing it back yet again, we need some new legislation which meets some of the needs addressed by CDB but in a way which doesn’t blindly trample the rights of the average internet citizen or company.

Open Rights Group‘s new digital surveillance report offers a much more thorough and workable outlook. It gathers papers from a range of expert views and ultimately makes ten recommendations for policy makers to take on board. A clear criticism by the Joint Select Committee was that the Home Office was not clear which parts of the proposed Bill were truly essential and which parts were over-reach or for the purpose of obfuscation. This new report offers a basis for joint discussions, which the Home Office now needs to embrace. 

If new legislation can be drafted built on the principles of this report, we can hopefully avoid altogether future iterations of the Snoopers’ Charter. But to do that, the Home Office needs to engage with informed, capable citizens. The Open Rights Group has spent the money and taken the initiative; the ball is now in the Home Office's court.

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