The recent amendment to the Online Safety Bill which means a compulsory report must be written for Ofcom by a “skilled person” before encrypted app companies are forced to scan messages has led to even more criticism of this rather controversial bill to bypass security in apps and give the government (and therefore any number of people) more access to sensitive and personal information.
In the House of Lords debate, which was the final session of the Report Stage and the last chance for the Online Safety Bill to be amended before the Bill becomes law, Government minister Lord Parkinson amended the bill by calling for the need for a report to be written for Ofcom by a “skilled person” (appointed by Ofcom) before powers can be used to force a provider/tech company (e.g. WhatsApp or Signal), to scan its messages. The stated purpose of scanning messages using the powers of the Online Safety Bill is (ostensibly) to uncover child abuse images.
The amendment states that “OFCOM may give a notice under section 111(1) to a provider only after obtaining a report from a skilled person appointed by OFCOM under section 94(3).”
Prior to the amendment, the report had been optional.
Why Is A Compulsory Report Stage So Important?
The amendment says that the report is needed before companies can be forced to scan messages “to assist OFCOM in deciding whether to give a notice…. and to advise about the requirements that might be imposed by such a notice if it were to be given”. In other words, the report will be to assess the impact of scanning on freedom of expression or privacy and explore whether other less intrusive, less alternative technologies could be used instead.
It is understood, therefore, that the report’s findings will be used to help decide whether to force a tech firm to scan messages. Under the detail of the amendment, a summary of the report’s findings must be shared with the tech firm concerned.
Tech companies may be broadly in agreement with the aims of the bill. However, the detail of the bill is that companies such as encrypted messages operators (e.g. WhatsApp and Signal and others) have always opposed being forced into scanning user messages before they are encrypted (client-side scanning). Operators say that this completely undermines the privacy and security of encrypted messaging, and they object to the idea of having to run government-mandated scanning services on their devices. Also, they argue that this could leave their apps more vulnerable to attack.
The latest amendment, therefore, has not changed this situation for tech companies and has led to more criticism and more objections. Many objections have also been aired by campaign and rights groups such as Index on Censorship and The Open Rights Group, who have always opposed what they call the “spy clause” in the bill for example:
– The Ofcom-appointed “skilled person” could simply be a consultant or political appointee, and having these people oversee decisions about free speech and privacy rights would not amount to effective oversight.
– Judicial oversight should be a bare minimum and a report written by just a “skilled person” wouldn’t be binding and would lack legal authority.
Other groups, however, such as the NSPCC, have broadly backed the bill in terms of finding ways to make tech firms mitigate the risks of child sexual abuse when designing their apps or adding features, e.g. end-to-end encryption.
Another House of Lords amendment to the bill requires Ofcom to look at the possible impact of the use of technology on journalism and the protection of journalistic sources. Under the amendment, Ofcom would be able to force tech companies to use what’s been termed “accredited technology” to scan messages for child sexual abuse material.
This has also been met with similar criticisms over the idea of government-mandated scanning technology’s effects on privacy, freedom of speech, and potentially being used as a kind of monitoring and surveillance. WhatsApp, Signal, and Apple have all opposed the scanning idea, with WhatsApp and Signal reportedly indicating that they would not comply.
Breach Of International Law?
The clause 9(2) of the Online Safety Bill which requires platforms to prevent users from “encountering” certain “illegal content” has also been soundly criticised recently. This clause means that platforms which host user-generated content will need to immediately remove any such content, which has a broad range, or face considerable fines, blocked services, or even jail for executives. Quite apart from the technical and practical challenges of being able to achieve this effectively at scale, criticisms of the clause include that it threatens free speech in the UK, and it lacks the detail for legislation.
Advice provided The Open Rights Group suggests that the clause may even be a breach of international law in that there could be “interference with freedom of expression that is unforeseeable” and goes against the current legal order on platforms.
It’s also been reported that Wikipedia could withdraw from the UK over the rules in the bill.
Investigatory Powers Act Objections (The Snooper’s Charter)
Suggested new updates to the Investigatory Powers Act (IPA) 2016 (sometimes called the ‘Snooper’s Charter’) have also come under attack from tech firms, not least Apple. For example, the government wants messaging services, e.g. WhatsApp, to clear security features with the Home Office before releasing them to customers. The update to the IPA would mean that the UK’s Home Office could demand, with immediate effect, that security features are disabled, without telling the users/the public. Currently, a review process with independent oversight (with the option of appeal by the tech company) is needed before any such action could happen.
The response from tech companies has been and swift and negative, with Apple threatening to remove FaceTime and iMessage from the UK if the planned update to the Act goes ahead.
Concerns about granting the government the power to secretly remove security features from messaging app services include:
– It could allow government surveillance of users’ devices by default.
– It could reduce security for users, seriously affect their privacy and freedom of speech, and could be exploited by adversaries, whether they are criminal or political.
– Building backdoors into encrypted apps essentially means there is no longer end-to-end encryption.
Apple’s specific response to the proposed updates/amendments (which will be subject to an eight-week consultation anyway) is that:
– It refuses to make changes to security features specifically for one country that would weaken a product for all users globally.
– Some of the changes would require issuing a software update, which users would have to be told about, thereby stopping changes from being made secretly.
– The proposed amendments threaten security and information privacy and would affect people outside the UK.
What Does This Mean For Your Business?
There’s broad agreement about the aims of UK’s Online Safety Bill and IPA in terms of wanting to tackle child abuse, keep people safe, and even making tech companies take more responsibility and measures to improve safety. However, these are global tech companies where UK users represent only a small part of their total user base, and ideas like building in back doors into secure apps, running government approved scanning of user content and using reports written by consultants/political appointees to support scanning all go against ideas of privacy, one of key features of apps like WhatsApp.
Allowing governments access into apps and granting them powers to turn off security ‘as and when’ raise issues and suspicions about free speech, government monitoring and surveillance, legal difficulties, and more. In short, even though the UK government want to press ahead with the new laws and amendments there is still a long way to go before there is any real agreement with the tech companies. In fact, it looks likely that they won’t comply and some, like WhatsApp have simply said they’ll pull out of the UK market, which could be very troublesome for UK businesses, charities, groups and individuals.
The tech companies also have a point in that it seems unreasonable to expect them to alter their services just for one country in a way that could negatively affect their users in other countries. As some critics have pointed out, if the UK wants to be a leading player on the global tech stage, alienating the big tech companies may not be the best way to go about it. It seems that a lot more talking and time will be needed to get anywhere near real-world workable laws and, at the moment, with the UK government being seen by many as straying into areas that are alarming rights groups, some tech companies are suggesting the government ditch their new laws and start again.
Expect continued strong resistance from tech companies going forward if the UK government doesn’t slow down or re-think many aspects of these new laws – watch this space.