Egypt Internet Blackout (© Arbor Networks)
This excellent graphic from Arbor Networks shows how Internet traffic to and from Egypt fell off a cliff between 27 and 28 January 2011. At about the same time mobile phone operators in Egypt reported that they were required to close down their networks in certain areas of the country.
On Thursday, 11 August 2011 David Cameron made a lengthy statement in the House of Commons to open the parliamentary debate on public order, following extenisve rioting in London and other English cities. Notably, he said:
Everyone watching these horrific actions will be struck by how they were organised via social media. Free flow of information can be used for good, but it can also be used for ill, so we are working with the police, the intelligence services and industry to look at whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality.
Could the UK Government follow Egypt and order an Internet blackout and mobile phone network shutdown, or at least block access via Internet (including by mobile phone) to social media platforms?
Internet Blackout
The Communications Act 2003 contains a broad power that could be used by a Secretary of State to close down or restrict access to the Internet, at least by ordering UK-based communications providers to close or restrict access to any international gateways. Section 132 begins:
132 Powers to require suspension or restriction of a provider’s entitlement
(1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—
(a) to protect the public from any threat to public safety or public health, or
(b) in the interests of national security,
he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.
(2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3) as they consider necessary for the purpose of complying with the Secretary of State’s direction.
(3) A direction under this section is—
(a) a direction that the entitlement of the relevant provider to provide electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or
(b) a direction that that entitlement is restricted in the respects set out in the direction.
Whilst the word “reasonable” gives any affected communications provider the hope that a capricious direction of the Secretary of State could be reined in by an urgent judicial review, what amounts to a critical threat to public safety or, especially, national security is not a judgement a court is likely to wish to overturn. In any event, section 132 can itself be considered unnecessary in the light of Part 2 of the Civil Contingencies Act 2004.
This part of the 2004 Act replaced the Emergency Powers Act 1920. It is highly recommended reading for any conspiracy theorist or anyone deeply cynical about the ability of politicians to act reasonably and sensibly in the event of any serious emergency affecting the UK. In summary, the 2004 Act gives the Executive extraordinary powers to make emergency regulations. Providing by regulation that internet service providers must deny access to international gateways or particular websites or servers could easily be achieved.
Mobile Phone Network Shutdown
The Secretary of State would not even need to consider making emergency regulations under the 2004 Act in order to shut down mobile phone networks. A direction made under Section 132 of the Communications Act 2003 would suffice. Each of the mobile phone operators has in their Wireless Telegraphy Act licences a provision in the same or substantially the same form as the following:
Ofcom may in the event of a national or local state of emergency being declared require the Radio Equipment to be modified or restricted in use, or temporarily or permanently closed down either immediately or on the expiry of such period as Ofcom may specify. Ofcom shall exercise this power by a written notice served on the Licensee or by a general notice applicable to holders of this class of Licence. (See Ofcom’s Template 2G Licence.)
So once Ofcom got the direction from the Secretary of State, it would have to do the dirty work and order the mobile phone operators to close down their networks.
Interception of Social Media
From David Cameron’s statement quoted above, it would appear that the Government’s thinking is that social media networks would be closed down when it was suspected or known that “violence, disorder and criminality” was being plotted. This implies that there will need to be monitoring of these networks. The problems in carrying out this monitoring are technical, not legal. All that would be required legally is an interception warrant made under section 5 of the Regulation of Investigatory Powers Act 2000 (RIPA):
5 Interception with a warrant
(1) Subject to the following provisions of this Chapter, the Secretary of State may issue a warrant authorising or requiring the person to whom it is addressed, by any such conduct as may be described in the warrant, to secure any one or more of the following—
(a) the interception in the course of their transmission by means of a postal service or telecommunication system of the communications described in the warrant;
(b) the making, in accordance with an international mutual assistance agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception of communications as may be so described;
(c) the provision, in accordance with an international mutual assistance agreement, to the competent authorities of a country or territory outside the United Kingdom of any such assistance in connection with, or in the form of, an interception of communications as may be so described;
(d) the disclosure, in such manner as may be so described, of intercepted material obtained by any interception authorised or required by the warrant, and of related communications data.
(2) The Secretary of State shall not issue an interception warrant unless he believes—
(a) that the warrant is necessary on grounds falling within subsection (3); and
(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Subject to the following provisions of this section, a warrant is necessary on grounds falling within this subsection if it is necessary—
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime;
(c) for the purpose of safeguarding the economic well-being of the United Kingdom; or
(d) for the purpose, in circumstances appearing to the Secretary of State to be equivalent to those in which he would issue a warrant by virtue of paragraph (b), of giving effect to the provisions of any international mutual assistance agreement.
(4) The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any warrant shall include whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.
(5) A warrant shall not be considered necessary on the ground falling within subsection (3)(c) unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.
(6) The conduct authorised by an interception warrant shall be taken to include—
(a) all such conduct (including the interception of communications not identified by the warrant) as it is necessary to undertake in order to do what is expressly authorised or required by the warrant;
(b) conduct for obtaining related communications data; and
(c) conduct by any person which is conduct in pursuance of a requirement imposed by or on behalf of the person to whom the warrant is addressed to be provided with assistance with giving effect to the warrant.
This looks like a very broad power to me. However, the media stories about the London riots have focussed on the alleged widespread use of BlackBerry Messenger. This is a secure closed network. Would this mean the plots on BlackBerry would not come to the notice of criminal intelligence officers? As has been demonstrated in the Middle East, Research in Motion can come to an accommodation with national security authorities that meets their eavesdropping requirements. If Research in Motion did not want to cooperate, then arguably there exists a robust regime in Part III of RIPA that would enable investigatory authorities to obtain the necessary codes, particularly as the grounds set out in section 49 for the requirement to release keys are essentially the same as in section 5 for interception.
Human Rights?
What about human rights, you might ask? Article 10 of the European Convention on Human Rights is supposed to grant a right to freedom of expression, isn’t it? However, as even Wikipedia’s Article 10 page helpfully points out, this is not an unqualified right. Where in accordance with the law (see above) and necessary in a democratic society, the right can be restricted.
So, although the steps outlined by the Prime Minister in the House of Commons debate seem an extreme response to rioting, the legal tools are already in place to enable the UK Government to do exactly what the Prime Minister has proposed.
TiMeriTy 