Text of an article as submitted to the Journalist, 24 May 2000

All Kafka'd up

Let's get straight to a fable showing how the Regulation of Investigatory Powers (RIP) Bill 2000 could affect you. It's conveniently difficult to write a who-what-when intro about one of the most heavily obfuscated pieces of legislation the Journalist has had the misfortune to encounter. The Home Office says its purpose is to regulate email interception, human surveillance of suspects, and the like. But do read on...

One day in the not-too-distant future, you receive an email from a whistleblower promising very interesting revelations. It tells you that the documents are "encrypted" and asks you to await a separate message. Indeed the attachment to this email appears, once you open it in the SimpleText program and reassure yourself it's not a virus, to be a lot of random letters and numbers. You file it away. When the other message arrives, it's in geekspeak. You don't understand a word of it, give up on the hope of a story, and delete it.

Later you get an Order from Special Branch, citing the Regulation of Investigatory Powers Act and saying that they understand you are in possession of ECHELON.PGP and you must disclose both its content and the encryption key. You haven't the faintest idea what they're on about. What's worse, the Order also threatens dire consequences if you tell anyone else that you've received it.

You're summoned to court. There, you will have to prove that you don't have the encryption key - or face two years in jail. For telling anyone why you've been summonsed, you risk five years in jail. Suddenly Franz Kafka's paranoid reverie The Trial seems as comfortingly mundane as the weather forecast.

You throw caution to the winds and tell all to a lawyer. Apparently you are allowed to tell a lawyer, now you're on trial. The problem is that not only are you assumed guilty and have to prove your innocence, you're also being asked to prove a negative - that you do not now possess something which you never understood you had for the four minutes you did have it. Your lawyer is tempted to call Bertrand Russell as an expert witness in philosophical logic. But he's dead, so she reaches for the phone to call the best live person, Willard van Orman Quine at Harvard - and slams it down on realising that she could go to jail for pointing out why he's wanted as a witness.

All you can do, it seems, is throw yourself on the mercy of the court. It seems that if that mercy is lacking you're not allowed to tell your children why they won't be seeing you for a few years. You shouldn't even tell your union why your earnings have fallen to six pounds a week. And this, certifies the Lord Bassam of Brighton, is compatible with the European Convention on Human Rights.

That, probably, is the point: that current practise of the security services will be illegal when the Human Rights Act 1988 incorporates the Convention into UK law. And the above story isn't even a particularly extreme example of what the RIP Bill could do - it's just one that may befall journalists.

Take a Bill whose ostensible purpose is to stop terrorists and paedophiles getting away with it by using the Wicked Web. Draft it so obscurely that only an aficionado of particularly bad computer programming could fathom what it implies. Throw in the fact that the "encryption" section refers to some rather advanced mathematics. You've got a law which has been met with resounding bafflement and may go through on the nod.

Even the campaigners who struggled to decipher the Bill realised only in early May that the stuff about encrypted messages may not be the biggest threat to privacy or to investigative journalism. The Bill also legalises the practice of keeping tabs on who communicates with whom. Tens of thousands of public officials - from senior spooks to rat-catchers - will have the power to authorise this, and also the keeping of logs of who reads what on the Web. Oh, and the secret terms of the UKUSA intelligence treaty override everything in the Bill anyway.

NUJ member Eric Blair (George Orwell) had it about right. Protecting your sources is about to become an offence. Midnight meetings in the middle of large open spaces may be the only way forward.

  • The Bill is due in House of Lords Committee around 12 June. The following Peers are NUJ members:
    • Michael Killanin;
    • William Howie;
    • John Kilbracken;
    • Patrick Lichfield;
    • Lena Jeger;
    • Roy Hattersley;
    • Anthony Snowdon; and
    • George Thomson
  • Write to them at House of Lords, London SW1A 0AA.

See campaign sites at www.fipr.org and www.stand.org.uk with its neat fax-your-MP tool.

[The Freelance: contents] Last modified: 22 October 2000
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