May 30, 2013 • 2:01 pm

“Where once communication was by landline, now a quarter of the data that the authorities need cannot be obtained because it is in the form of e-mails or messages on social media, and the proportion is set to rise sharply.” The Times, 29 May 2013

In the wake of the terror attack in Woolwich, former Police Minister Nick Herbert is calling for the return of the Communications Data Bill in order to help the authorities track suspects.

The draft bill was announced in the Queen’s Speech in 2012, and was published on 14 June of that year. However following scrutiny by the Joint Committee on Human Rights and the Intelligence and Security Committee (ISC), what’s known as “the snoopers’ charter” was overlooked in the most recent Queen’s speech. In April 2013 Nick Clegg told a caller on his LBC show that “what people have dubbed the snooper’s charter” was “not going to happen”.

The decision to drop the legislation has come in for criticism after the Woolich terror attack, when it emerged that the suspects Michael Adebolajo and Michael Oluwatobi Adebowale were known to the British intelligence services. The draft Bill would have extended powers to cover individuals’ online activities. The data could have included the time, duration, originator and recipient of a communication and the location of the device from which it was made.

The “capability gap”

In pushing for extended surveillance powers – as outlined in the draft bill – the Home Office claimed in May last year that there is a 25 per cent “shortfall” in the communications data that authorities require and the data that is available. For this reason, they argued, the Government must require internet companies to retain data such as emails for a year, just as telephone records are currently retained. “Left unchecked,” the Home Office argued “this gap will increase to 35 percent in two years’ time”. 

Nick Herbert makes this same claim on the Times today, however it has come in for criticism from MI5 itself.

What is the figure based on?

According to the Home Office evidence to the Committee, the gap is caused by individuals using technology that pushes their online communications – emails, social media, voice calls over the internet, and gaming – out of the intelligence services’ reach.

A Home Office spokes person told us the estimate is based on:

“An assessment of the types of communications technology for which data is not retained at present, requests that cannot currently be met and those requests that are not even made because the police and others know the data will not have been retained. Use of traditional fixed line and mobile telephony has slowed, while internet use (driven by the predicted rise in smart phone and tablet sales) is expected to continue growing year on year.”

What they weren’t able to tell us is how this figure was calculated. The Impact Assessment of the draft bill addresses the issue of the capability gap, but it doesn’t attach a number to it. 

How did the Committee respond?

Though the Intelligence and Security Committee acknowledges the existence of a gap, they concluded that the exact size of it was “immaterial”. This was based on the evidence of Sir Jonathan Evans, the then director general of MI5, who told the Committee that the figure rested on some “pretty heroic assumptions”. He added that “if it were left as ‘there is a gap and we need to close that gap’ [it would be easier], but they’ve actually specifically said 25%, and that’s not been properly defined.”

The Committee itself felt that in its written evidence, the Home Office couldn’t justify how it calculated this figure.

They concluded:

“We do not believe that there is any benefit in providing superficially precise estimates of the size of this ‘capability gap’: unless there is a demonstrable basis for such figures they can be misleading.”

They also said that whether the 25% figure is accurate or not is “immaterial”.

“What is important is whether there is a gap, whether the gap is causing a problem, and – most importantly – how significant that problem is.”

They also disclose that alternative ways of gathering such intelligence, such as carrying out surveillance or investing in undercover operations, are risky, expensive, slower and more intrusive by comparison.

Conclusion

Of course it’s often the case that claims concerning national security and terrorism rest on information which for obvious reasons is kept classified. However, given that in this case the head of MI5 and the Intelligence and Security Committee have both disputed the 25% figure, it is disappointing to subsequently see it stated as ‘fact’ by the former Police Minister in a national newspaper.  Public discussion on such an important matter deserves to be informed by more than “heroic assumptions”. 

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Flickr image courtesy of pdpao

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