I am not a lawyer. I have had to cover RIPA in lectures to Computer Science students on laws that matter to them, so I had experienced its impenetrability and have tried to make some sense of it. Earlier this year, George Danezis of UCL (at a Law Society debate on Surveillance) provided what seemed to me like a plausible interpretation for RIPA: that rather than clumsily dealing with interception of electronic communications from a telephone age perspective, it was a document looking very much forward to an internet-driven world, based on Home Office views of future surveillance opportunities.
Yesterday I found myself in the enviable position of being able to discuss (on Twitter) the highly topical “DRIP” update to RIPA with a real politician – moreover, a knowledgeable one who had previously expressed sensible views on the world post Snowden, namely the LibDem MP Dr Julian Huppert. He had just been asking questions on the topic of the Home Secretary in the Home Affairs Committee, which Mrs May had mostly managed to avoid answering. There had also been an ongoing debate between Huppert and others on Twitter, centering on whether clauses 4 and 5 in DRIP were adding new powers to RIPA. Huppert thought not, and he engaged with my failure to understand why he thought so. The exchange ended with him saying “existing law is unclear; was interpreted one way, now differently. This preserves intended interpretation“; I queried whose interpretation and when, he said “HO & was accepted by CSPs I’ve spoken to. We referred to this as understanding in report on draft Comms data bill” and explained later that the last reference was to para 231 and on from the 2012/13 Joint Committee Report on the Draft Communications Data Bill (a.k.a. the Snoopers’ Charter) (“HO” is Home Office, “CSP” is Communication Services Provider).
I needed a few hours to mull this over. I think I am clear now. Looking at the phrase “intended interpretation”, this is subjective. Both the intention and the interpretation are owned by someone — and I would argue it’s not the Home Office in either case. They may have had the original intention for RIPA by proposing it, but [in my naive understanding of politics] the ultimate responsibility for turning it into law rests with the parliament that agreed to it – no matter how much we may argue now that they didn’t understand what they were agreeing to. As for the interpretation, it is my [again: naive] understanding that it is the courts’ job to interpret laws, not the Home Office’s. So my disagreement with Huppert on whether DRIP (clauses 4 and 5) introduces new powers into RIPA rests on this: he accepts the Home Office’s claim that they own both the intention and the interpretation of RIPA, and I don’t.
As for the “emergency”… It sounds like overseas CSPs had so far been happy to accede to targeted interception requests from UK authorities. It’s amazing that Theresa May refused to admit that yesterday in the Home Affairs Committee when it is clearly stated in the Joint Committee report anyway. Presumably the CSPs had been wanting to be seen as “good citizens” (or even pretending they had “nothing to hide”!), and they would have realised of the lack of transparency around this so they could do this at no expense to their customer relationships. Snowden has changed all that: many CSPs are now publishing the numbers of interception requests received and accepted, and even the RIPA oversight has become a little more transparent. In this way, it becomes visible when overseas CSPs accept UK interception requests even when the legal basis for it appears dubious, and that makes the “gentlemen’s agreement” much less acceptable for the CSPs. That this was a risk already shows in the Snoopers’ Charter report mentioned, from 2013, so not by itself an emergency now.
I reckon the emergency was an overseas CSP threatening to withhold collaboration. From the combination of clauses 4 and 5, it is likely one whose communication methods are not easily covered by the existing RIPA definition of “telecommunications service”. Maybe it is one that is being used in a particularly sensitive and urgent context. From the fact that there are no amendments on the table today to drop clauses 4 and 5 from DRIP, it seems clear there is a very broad consensus behind closed doors that together this really forms an emergency. Is it adding new powers to RIPA? I think it is. Does it matter? The non-politician in me says they might be more honest about it, even if it turns out to be the right thing to do.
I am still not a lawyer, so take this all with a lot of salt. I am also not sharing my inexpert views of whether DRIP does or does not address the striking out of the ECJ judgement against Data Retention. If you want legal opinions on DRIP, look at these ones: