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Five Eyes Unlimited: What A Global Anti-Encryption Regime Could Look Like

DEEPLINKS BLOG
June 29, 2017

This week, the political heads of the intelligence services of Canada, New Zealand, Australia, the United Kingdom, and the United States (the "Five Eyes" alliance) met in Ottawa.  The Australian delegation entered the meeting saying publicly that they intended to "thwart the encryption of terrorist messaging." The final communiqué states more diplomatically that "Ministers and Attorneys General [...] noted that encryption can severely undermine public safety efforts by impeding lawful access to the content of communications during investigations into serious crimes, including terrorism. To address these issues, we committed to develop our engagement with communications and technology companies to explore shared solutions."

What might their plan be? Is this yet another attempt to ban encryption? A combined effort to compel ISPs and Internet companies to weaken their secure products? At least one leader of a Five Eyes nation has been talking recently about increasing international engagement with technology companies — with a list of laws in her back pocket that are already capable of subverting encryption, and the entire basis of user trust in the Internet.

Exporting Britain's Surveillance Regime

Before she was elevated to the role of Prime Minister by the fallout from Brexit, Theresa May was the author of the UK's Investigatory Powers bill, which spelled out the UK's plans for mass surveillance in a post-Snowden world.

At the unveiling of the bill in 2015, May's officials performed the traditional dance: they stated that they would be looking at controls on encryption, and then stating definitively that their new proposals included "no backdoors".

Sure enough, the word "encryption" does not appear in the Investigatory Powers Act (IPA). That's because it is written so broadly it doesn't need to.

We've covered the IPA before at EFF, but it's worth re-emphasizing some of the powers it grants the British government.

  • Any "communications service provider" can be served with a secret warrant, signed by the Home Secretary. Communications service provider is interpreted extremely broadly to include ISPs, social media platforms, mail services and other messaging services.
  • That warrant can describe a set of people or organizations that the government wants to spy upon.
  • It can require tech companies to insert malware onto their users' computers, re-engineer their own technology, or use their networks to interfere with any other system.
  • The warrant explicitly allows those companies to violate any other laws in complying with the warrant.
  • Beyond particular warrants, private tech companies operating in the United Kingdom also have to respond to "technical capability notices" which will require them to "To provide and maintain the capability to disclose, where practicable, the content of communications or secondary data in an intelligible form," as well as permit targeted and mass surveillance and government hacking.
  • Tech companies also have to the provide the UK government with new product designs in advance, so that the government can have time to require new "technical capabilities" before they are available to customers.

These capabilities alone already go far beyond the Nineties' dreams of a blanket ban on crypto. Under the IPA, the UK claims the theoretical ability to order a company like Apple or Facebook to remove secure communication features from their products—while being simultaneously prohibited from telling the public about it.

Companies could be prohibited from fixing existing vulnerabilities, or required to introduce new ones in forthcoming products. Even incidental users of communication tech could be commandeered to become spies in her Majesty's Secret Service: those same powers also allow the UK to, say, instruct a chain of coffee shops to use its free WiFi service to deploy British malware on its customers. (And, yes, coffee shops are given by officials as a valid example of a "communications service provider.")

Wouldn't companies push back against such demands? Possibly: but it's a much harder fight to win if it's not just the UK making the demand, but an international coalition of governments putting pressure on them to obey the same powers. This, it seems is what May's government wants next.

The Lowest Common Privacy Denominator

Since the IPA passed, May has repeatedly declared her intent to create a an international agreement on "regulating cyberspace". The difficulty of enforcing many of the theoretical powers of the IPA makes this particularly pressing.

The IPA includes language that makes it clear that the UK expects foreign companies to comply with its secret warrants. Realistically, it's far harder for UK law enforcement to get non-UK technology companies to act as their personal hacking teams. That's one reason why May's government has talked up the IPA as a "global gold standard" for surveillance, and one that they hope other countries will adopt.

In venues like the Five Eyes meeting, we can expect Britain to advocate for others to adopt IPA-like powers. In that, they will be certainly be joined by Australia, whose Prime Minister Malcolm Turnbull recently complained in the Australian Parliament that so many tech companies "are based in the United States where a strong libertarian tradition resists Government access to private communications, as the FBI found when Apple would not help unlock the iPhone of the dead San Bernardino terrorist." Turnbull, it seems, would be happy to adopt the compulsory compliance model of the United Kingdom (as would, he implied at the time of the Apple case, would President Trump).

In the meantime, the British authorities can encourage an intermediary step: other governments may be more likely to offer support for a IPA regime if Britain offers to share the results of its new powers with them.

Such information-sharing agreements are the raison d'être of the Five Eyes alliance, which began as a program to co-ordinate intelligence operations between the Anglo-American countries. That the debate over encryption is now taking place in a forum originally dedicated to intelligence matters is an indicator that the states still see extracting private communications as an intelligence matter.

But hacking and the subversion of tech companies isn't just for spies anymore. The British Act explicitly granted these abilities to conduct "equipment interference" to more than just GCHQ and Britain's other intelligence agencies. Hacking and secret warrants can now be used by, among others, the civilian police force, inland revenue and border controls. The secrecy and dirty tricks that used to be reserved for fighting agents of foreign powers is now available for use against a wide range of potential suspects.

With the Investigatory Powers Bill, the United Kingdom is now a country empowered with a blunt tools of surveillance that have no comparison in U.S. or any other countries' law. But, along with its Five Eyes partners, it is also seen as a moderate, liberal democracy, able to be trusted with access and sharing of confidential data. Similarly, Australia is one of the few countries in the world (and the only one of the Five) to legally compel ISPs to log data on their users. Canada conducts the same meta-data surveillance projects as the United States; New Zealand contributes its mass surveillance data to the shared XKEYSCORE project.

While such data-sharing may be business as usual for the Cold War spies, the risk of such unchecked co-operation have been barely considered by the judicial and legislative branches.

In the world of law enforcement, the UK has for the last year conducted a sustained lobbying campaign in the United States Congress to grant its police forces fast-track access to American tech companies' communications data. The UK would be permitted to seize the contents of Google, Facebook and other companies' customers' inboxes without a U.S. court warrant. In return, the U.S. would gain a reciprocal capability over data held in the U.K.

The danger is that, by forging broad agreements between these five countries, all will end up taking advantage of the lowest privacy standards of each. The United Kingdom will become the source of data obtained through the Investigatory Powers Bill; the United States will launder data taken from UPSTREAM and other programs through the United Kingdom's legal system, and so on.

Secret "Five Eyes" is not the venue for deciding on the future of global surveillance. Intelligence agencies and their secret alliances are no model for oversight and control of the much broader surveillance now being conducted on billions of innocent users of the public Internet. The Investigatory Powers Bill is no "gold standard.” Britain's radical new powers shouldn't be exported via the Five Eyes, either through law, or through data-sharing agreements conducted without judicial or legislative oversight.

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