Investigatory Powers Bill will not ban encrypted messages like WhatsApp, but spies still have access to much of communications data

The Government has been quietly suggesting that it will walk back plans to ban encryption entirely in the new bill – but that might just be because it already has the powers it needs

Andrew Griffin
Wednesday 04 November 2015 13:32 GMT
Theresa May has led the Government's plans to crack down on encryption and other security measures
Theresa May has led the Government's plans to crack down on encryption and other security measures

The Government might be about to walk back its plans to ban end-to-end encryption, which would make WhatsApp and iPhones in their current form illegal. But it might only be doing so because it already has those powers.

The Regulation of Investigatory Powers Act 2000, which the new Investigatory Powers Bill is intended to update, already gives the Government the power to access much information.

In advance of the publication of the bill, the Government suggested that it could ban end-to-end encryption, the technology that is used to keep people from prying into WhatsApp and iMessage communications, as well as for keeping internet banking details safe. But authorities seem to be calling off that plan.

But some of the wording of the bill appears to allow the Government to request "disclosure" of information, even if it has been encrypted.

That power has never been tested. And it seems to be the case that intelligence agencies couldn’t ask companies to unlock information if they don't have the key, or force them to weaken their encryption so that it could be unlocked.

It is also already a crime to refuse to hand unlock a device while being able to if the police request it. That means that if the police want access to a phone, for instance, people can be charged for not doing so.

The intelligence agencies already have access to plenty of data, even without limits on encryption.

One of the most useful to intelligence agencies is communications data, or metadata – not the information that’s contained within messages but who was involved and when they were sent. Intelligence agencies often claim that means that there is no intrusion – but much can be inferred from the metadata about what was actually going on.

Earlier this year, MI5 said it is used in all of its investigations and has helped provide "crucial leads and saved lives" at home and abroad. Communications data is also used by police investigating serious crime and is seen as particularly useful in proving or disproving alibis and tying suspects to a crime scene.

Police and security agencies can also use interception – listening in on communications.

This is a more intrusive capability which involves police or security agencies listening to a specific suspect's calls or viewing content of emails. It is only allowed under the authority of a warrant signed by a Secretary of State - normally the Home Secretary. Material obtained under an interception warrant is not allowed to be used in courts as evidence.

In some situations, intelligence agencies can use “equipment interference” to gain access to information.

This covers the use of "computer network exploitation" - or hacking - mounted by agencies to access communications under the Intelligence Services Act 1994. Last month, former intelligence contractor Edward Snowden claimed security services can gain access to devices such as mobile phones.

Additional reporting by Press Association

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