Dear politicians: These days, everything is communications, and you are not entitled to everything

Once upon a time, criminals and terrorists and pedophiles could only communicate face-to-face or by mail, telephone, SMS and email. Nowadays bad people have many new ways to plot their dastardly deeds – they can use chatrooms, Skype(s msft), social networks, instant messengers and forums. The whole internet is rife with channels for evil, which is why some governments are scrambling to update their intercept laws.

Unfortunately, those updates amount to huge power grabs, because the concept of “communications” takes in so much more these days than it used to. That means communications metadata tells law enforcement and spies more than they have any right to know.

Catching up or overtaking?

In the U.K., a recently fast-tracked piece of legislation called DRIP made it so that where law enforcement could previously only expect local telcos to hang onto customers’ call records and email metadata — who contacted whom and when — they can now demand the same from any company around the world providing Britons with any service that “consists in or includes facilitating the creation, management or storage of communications.”

Meanwhile Australia looks set to get its first data retention legislation in order to “update Australia’s telecommunication interception law which predates the internet era and is increasingly ineffective,” its government said in a statement.

The problem is these metadata storage mandates may just be about communications – which is why the politicians behind them keep insisting that they’re merely updates to suit the modern era – but everything is communications these days. Sure, web services have replaced the voice call and the SMS and the email, but they’ve also replaced the town square and the living room. Communications and everyday life have merged.

When you used to go shopping, that would mean walking out the door and visiting a retailer. Now you visit a webpage – your browser talks to the retailer’s server, which talks to your payment processor’s server. Convenience aside, it’s all the same to you, but that shopping activity can now be accurately defined as communications. And into the data vault it goes.

Where you once went to a singles bar to chat people up and get chatted up, you now do that online. You’d never expect that activity to be recorded for law enforcement purposes before, but now you must. Same goes for kids playing in the street – now they’re socializing online, which makes it telecommunications. All fodder for that hungry vault.

Job-hunting? Communications. Reading the news or funnies? Communications. Planning a trip? Communications. Having a medical consultation? Looking for a parking spot? Listening to a new album? You get the point.

The politician’s dilemma

I prefer to think that politicians don’t get that point, because I struggle to believe, even given our many something-must-be-done moral panics, that those same politicians would gladly put a spy in every shop, bar and living room. It can’t be that they look back longingly at the Stasi. Surely they’re only trying to protect their citizens, to make sure that bombs don’t go off and kids don’t get abused on their watch.

And I sort of sympathize with their dilemma, even though I (like the U.N.’s human rights chief) object to any indiscriminate surveillance policy. If law enforcement can only monitor traditional telecommunications, it can’t be as efficient as it wants to be. But the fact is that modern telecommunications encompasses many activities that citizens would never think of in those terms.

That’s why the U.K.’s DRIP Act is so dangerously over-broad, and why many Australians are reacting in horror to what’s about to happen in their country. Even when you take the line that it’s only a metadata matter, like Australian Attorney-General George Brandis did in a car-crash TV interview on Wednesday, the difference between this new-style metadata and traditional call records should be painfully obvious.

From the Brandis interview transcript (the Sky News host’s name is David Speers):

SPEERS: The Prime Minister said today it’s not what you are doing on the internet, it’s the sites you’re visiting. So will it be the sites you are visiting?

BRANDIS: It wouldn’t extend for example to web surfing, so what people are viewing on the internet is not going to be caught.

SPEERS: It’s not the sites you’re visiting?

BRANDIS: Well, what people are viewing on the internet when they web surf is not going to be caught. What will be caught is the web address they communicate to.

SPEERS: Okay, so it’s only – sorry, the web address, if I go to an internet site, that will be recorded and available?

BRANDIS: The web address is part of the metadata.

SPEERS: The website.

BRANDIS: The web address. The electronic address of the website.

That excerpt makes me both laugh and cry — laugh because Brandis appears so clueless, and cry because he’s got the basic mechanism right but refuses to make the logical step to the implications of what he’s calling for. He seems incapable of understanding that he’s urging the surveillance of what used to be a page in a magazine, or a stroll down to the pub.

Similarly, the U.K. Home Office was wrong to assert on Friday that DRIP will not have any new privacy impacts. Sure, it may just formalize an internal Home Office interpretation of older legislation, but who thought to inform the British people that a call records law suddenly became a potential everything records law?

This week the British telecoms regulator Ofcom released data showing that 16-24-year-olds now spend more than nine hours each day on communications. Rewind 20 years and you won’t find young people spending that much time on the phone each day – this is just a representation of the fact that life now takes place on telecommunications platforms, through a complex series of metadata-laden connections.

Liberal democracies should not have blanket data retention laws anyway, but if they’re going to have them then they need to be very carefully and specifically worded, through thorough and informed debate. Communications metadata describes lives, not just isolated interpersonal connections — and we desperately need our politicians to understand that.