The “Voluntary” Cooperation that Comes from Coercion of Licensing Agreements?

The Guardian today describes how hard GCHQ worked to prevent its intercepts from being discoverable in trials. It did so for two reasons: to prevent a political firestorm about the extent of the collection.

A briefing memo prepared for the board of GCHQ shortly before the decision was made public revealed that one reason the agency was keen to quash the proposals was the fear that even passing references to its wide-reaching surveillance powers could start a “damaging” public debate.


Referring to the decision to publish the report on intercept as evidence without classification, it noted: “Our main concern is that references to agency practices (ie the scale of interception and deletion) could lead to damaging public debate which might lead to legal challenges against the current regime.”

And to protect the telecoms, some of whose cooperation (I’m guessing British Telecom and Vodaphone, based on other reporting, but that is a wildarsed guess) goes beyond the requirements of the law.

In an extended excerpt of “the classified version” of a review prepared for the Privy Council, a formal body of advisors made up of current and former cabinet ministers, the document sets out the real nature of the relationship between telecoms firms and the UK government.

“Under RIPA [the Regulation of Investigatory Powers Act 2000], CSPs in the UK may be required to provide, at public expense, an adequate interception capability on their networks,” it states. “In practice all significant providers do provide such a capability. But in many cases their assistance – while in conformity with the law – goes well beyond what it requires.

The story references back to its earlier coverage on Tempora, the UK collection off cables, largely to note how different this description of the telecoms’ cooperation is from what they claimed back in June.

But given this description of their extensive cooperation, this detail from the original Tempora story sure looks more interesting.

The papers seen by the Guardian suggest some companies have been paid for the cost of their co-operation and GCHQ went to great lengths to keep their names secret. They were assigned “sensitive relationship teams” and staff were urged in one internal guidance paper to disguise the origin of “special source” material in their reports for fear that the role of the companies as intercept partners would cause “high-level political fallout”.

The source with knowledge of intelligence said on Friday the companies were obliged to co-operate in this operation. They are forbidden from revealing the existence of warrants compelling them to allow GCHQ access to the cables.

“There’s an overarching condition of the licensing of the companies that they have to co-operate in this. Should they decline, we can compel them to do so. They have no choice.”

Back in June, an anonymous source said the telecoms cooperate because their licensing depends on it. Now we learn that the government considers their cooperation voluntary, some of it beyond what is required.

I don’t know whether telecom law operates in the UK like in the US, but if the government premises licensing based on cooperation, it might get to the question I raised here, when I noted how the government reserved getting Department of Commerce involved in cases where companies didn’t provide the “voluntary” cooperation with cyberdefense the government demanded.

I think it’s quite possible the government (possibly both the US and UK) is/are demanding “voluntary” cooperation from the companies they license (on threat of losing their licenses). But remember, on a lot of this stuff, the government has held that companies can “voluntarily” turn over data (especially stuff facetiously called “foreign” based on false claims about the transit of data) without process if they want to.

So coerce the telecoms (and possibly, broadband) to cooperate under threat of licensing problems, then claim that this “voluntary” cooperation permits data sharing that otherwise would require legal process.

And in doing so, conduct a dragnet so vast that no judge would ever approve it.

Is that how it works?

6 replies
  1. joanneleon says:

    That’s confusing.
    “So coerce the telecoms (and possibly, broadband) to cooperate under threat of licensing problems, then claim that this “voluntary” cooperation permits data sharing that otherwise would require legal process.”

    Does it come down to more secret interpretations of things, in this case licensing requirements? In addition to getting it past a judge, dragnet would never make it through Parliament (public debate), presumably. Similar to the secret interpretations of the PATRIOT Act?

    If so, all of it seems to boil down to subversion of democracy, yet again.

  2. Simplify says:

    Straight-up Mafia tactics. They had to make it into an offer they couldn’t refuse.

    Freedom is just so troublesome, you see…

    Would only emptywheel’s logical point come up in a courtroom someday soon.

  3. GKJames says:

    Maybe. But it could also be, in part, as banal as the telcos’ making the Faustian bargain in exchange for continuing to get huge government contracts as well as more spectrum. Besides, doing warrant-related paperwork is annoying to the government and telcos alike; the Hoover’s attached to the central switch in the name of efficiency….

  4. pdaly says:

    No doubt the phone companies are making extra money from handing over records, but I cannot figure out this part: I was a day late paying my Verizon wireless phone bill, and I received text messages from Verizon and home phone calls from Verizon as if it were desperate for cash.

    Even after I went to a local Verizon Wireless brick and mortar store and paid in full at the kiosk I got a robocall at home an hour later reminding me to pay my bill.

  5. thatvisionthing says:

    But remember, on a lot of this stuff, the government has held that companies can “voluntarily” turn over data (especially stuff facetiously called “foreign” based on false claims about the transit of data) without process if they want to.

    Wait a sec. I thought Stewart Baker said at the House hearing on NSA oversight in July that telecoms could NOT volunteer metadata in the US, and that the US was at a disadvantage that way to other countries? What am I missing? Bleachers question, focus on second paragraph:

    STEWART BAKER: And then finally, and I’ll close with this, the other cost that we are likely to pay here is that we are not the only audience for the debates that we are going through. It may feel like a family fight, but the neighbors are listening, and indeed Europe has already made it clear that they intend to punish everybody who participated in these programs that they possibly can. They intend to try to restrict our intelligence gathering by going after the companies that only did their duty in responding to orders that were lawful under U.S. law. This is a fixed feature now of European public policy and diplomacy. It ignores the fact that by and large the U.S. record on protecting civil liberties and even this kind of data is much better. According to the Max Planck Institute, you’re 100 times more likely to be surveilled by your own government if you live in the Netherlands or you live in Italy, you’re 30 to 50 times more likely to be surveilled if you are a French or a German national than in the United States.

    Only in the United States and Japan are there limitations on simply volunteering information to government if you happen to have this metadata. As long as you have a good reason, by and large you can give it over, and certainly law enforcement would appear to be a good reason. And on this question of assembling a database of metadata, the Europeans don’t do that because they passed a law telling every one of their carriers, “You assemble the database, you maintain it, and if law enforcement comes calling or if you want to volunteer the information, you’ll have it.” We’ve never done that. We’ve never had a data retention law in the United States for civil liberties reasons, and that’s one of the reasons why we have ended up trying to collect this data and then imposing a set of limitations on when it is searched.

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