The Association of Chief Police Officers has asked for new legislation giving the security services "powers to attack identified websites". The proposal, along with one for a new offence covering "use of the internet to prepare, encourage, facilitate acts of terrorism" was part of the terror law 'shopping list' presented by ACPO at the Prime Minister's meeting with law enforcement agencies on Thursday.
Much of ACPO's list covers territory where legislation is already planned by the Government and/or is part of broader international roadmaps being pushed by Europe's Council of Ministers and the G8. The request for a cyberwarfare capability, however, is one of several new proposals put forward by ACPO, and has wide-ranging implications. ACPO doesn't give specific details of what it envisages, but says the power "has significant benefits for counter terrorism and overlaps with other police priorities namely domestic extremism and paedophilia/child pornography." ACPO therefore clearly envisages the security services being given the power to attack a wider range of websites than those simply associated with international terrorism.
The security forces already have the capability to deal with websites that are within UK jurisdiction, which means that the major target must be sites beyond it. "This issue goes beyond national borders and requires significant international cooperation," says ACPO: "The need for appropriate authority and warrantry is implicit." For the international cooperation to be delivered, the Government would therefore need to get legalised hacking, interdiction and denial of service moved up the EU-G8 security agenda.
It's possibly worth noting that ACPO is unlikely to be alone among the UK security services in its desire to interfere with websites from afar. This fanciful item alleges among many other improbable things that the "warrants the MI5 watchers have obtained permit them to intercept Jamal’s e-mail conversations with those he is grooming, and to carry out 'portscans' on his computer. Using sophisticated software, they reach into it to search for incriminating files." Spyblog made the failed Spooks script gag before we could, but it's perfectly possible that there's a security services' agenda underlying the sub-Bond PR spin.
The proposed offence covering use of the internet "to prepare, encourage, facilitate acts of terrorism" is explained by ACPO as being a move to "suppress inappropriate internet usage in respect of today's global communication capability." The organisation says however that this "preventative measure" may be catered for in the "acts preparatory to terrorism" legislation the Government already has planned. ACPO's interest is likely to ensure that it is.
Interestingly, ACPO's general commentary on the 'acts preparatory' legislation says: " It will allow the police and intelligence agencies to intervene at an early stage early to protect the public and will go some way towards countering the negative messages we receive concerning terrorism arrests and subsequent charging/prosecution figures" (our emphasis). Government statistics on Terrorism Act arrests (which Charles Clarke has recently seemed reluctant to update in responses to parliamentary questions) show relatively few instances of charges being brought for terrorism offences, and tend to indicate that numbers of immigration and passport fraud offenders are being caught instead.
This might be taken to suggest that the security forces are looking in the wrong places for terrorists. One might perhaps observe that thinking up new offences that let you count more of the people you arrest as terrorist offenders is not necessarily the appropriate response to our current difficulties.
ACPO also, puzzlingly, calls for the creation of an offence "not to disclose encryption keys etc." This follows on from a call made by Met Commissioner Sir Ian Blair a few days ago, and is presented as a necessary amendment to part 3 of the Regulation of Investigatory Powers Act, making it "an offence to fail to disclose such items." Part 3 of the Regulation of Investigatory Powers Act however already includes such an offence. In 53, 5 it say that a person guilty of such an offence is liable to "imprisonment for a term not exceeding two years or to a fine, or to both."
There may well be some subtle nuance that escapes us which makes this the wrong kind of offence as far as ACPO is concerned, but the thought that the security services now have so much lovely new legislation that they can't keep up is treasurable, and we'll treasure it until somebody tells us different.* Seriously though, ACPO's commentary says that recent investigations "have been made more complex by difficulties for investigating officers in ascertaining whereabouts of encryption keys to access computers etc." It seems likely to us that these difficulties are related to an inadequate police grasp of RIPA and of how the internet works, and that's not something new or retreaded offences will fix.
* And they have. Thanks to Chris Walker and Ed Phillips, who point out that part 3 of RIPA is not yet in force. The Office of the Surveillance Commissioner confirms that the intended procedure was to draw up a code of practice for encryption, put it out for consultation, and then to put it before Parliament. "It is not possible yet to give a timetable for this."