Analysis The UK Home Office's ambiguous response to whether or not the Investigatory Powers Act gives the British government the authority to pressure or force people to work for GCHQ is troubling.
The law was ambiguously worded enough so that not even experts could discern whether or not the compulsion to assist in surveillance operations applied only to telecoms firms or whether it meant security experts could be press-ganged into assisting the UK's law enforcement and intel agencies.
Clubley decided to ask the Home Office for clarification directly, an inquiry that sparked a curious response – a key extract is below:
Section 190 of the IPA allows equipment interference authorities to require the assistance of any person in giving effect to a bulk equipment interference warrant (section 126 of the Act provides for this in the context of targeted equipment interference warrants). A warrant can only be served on a person whom the equipment interference authority considers may be capable of providing the assistance required by the warrant. In some circumstances equipment interference agencies and other persons will work co-operatively together, without the need to serve a warrant.
While a warrant can be served on any person, the duty to comply [our italics] with providing assistance in relation to a targeted or bulk equipment interference warrant, is only enforceable against a telecommunications operator, as set out in section 128 of the IPA.
A telecommunications operator who has been served with a warrant must take all steps for giving effect to a warrant which are notified to them. A telecommunications operator will not be required to take steps which are not reasonably practicable to take.
Allegedly, there are safeguards against misuse:
Bulk equipment interference warrants will be subject to a "double-lock" system whereby a Secretary of State and a Judicial Commissioner must be satisfied that the warrant is necessary and proportionate before it may be issued.
Any individual who thinks that surveillance powers have been used against them unlawfully can apply to the Investigatory Powers Tribunal to review their case.
Clubley told El Reg: "The Home Office are saying that, yes, literally anyone can be served with a warrant but they are also saying that only telecommunications companies can be compelled to assist.
"The disconnect between those two statements doesn't seem to make sense. After all, why give yourself the power to do something if you cannot then enforce it?"
He added: "The only conclusion I have been able to reach is that the government knew it would never get a law passed which compelled everyone to cooperate with GCHQ, so they are instead relying on the actual act of serving a warrant to intimidate people into cooperating."
The Home Office statement indicates that, under paragraph (3)(f) of section 132 of the IPA, anyone served with a warrant – even if they are under no obligation to assist the government – is liable to prosecution simply by revealing they had been served with a warrant, said Clubley.
"This leaves the government free to shop around, serving warrants on multiple experts, until they find one they can intimidate into working with them," according to Clubley. "For myself, if I received such a warrant, I would simply tell the government to get lost, but I can imagine for some people, actually receiving such a warrant, along with threats about what would happen if they revealed its existence, would be enough to scare them into cooperating with the government," he added.
Prof Alan Woodward, a computer scientist at the University of Surrey in the UK, agreed that the Home Office letter was "ambiguous."