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The London School of Economics and Political Science Interception: Law

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The London School of Economics and Political Science Interception: Law The London School of Economics and Political Science Interception: Law, Media, and Techniques Bernard Keenan A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, September 2017 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 99,962 words. 2 Abstract In 2013, Edward Snowden provided journalists with copies of classified documents detailing the operations of the National Security Agency of the United States and its allies; in particular, the UK’s Government Communications Headquarters. Snowden explained that he hoped to set the conditions for a new technical literacy that would alter understandings of the relationship between digital communications and law. This thesis asks whether or not law is capable of repaying Snowden’s faith. To that end, it offers a media-theoretical genealogy of the interception of communication in the UK. Interception is presented as an effect of different sets of technical operations, mediated and processed by communication devices and networks. The thesis traces interception techniques: from their beginnings in the General Post Office; in their evolution through the operations of technical media; to their reappearance in the operations of digital media that constitute the internet. The authorisation of interception, meanwhile, has always depended upon legal techniques mediated by interception warrants. A genealogy of the interception warrant is presented through an archival study of the distinctly different practices of document production that manufactured and programmed warrants in different media epochs; from the medieval Chancery and paper bureaucracies of state institutions to the graphical user interface, which mediates between interception techniques and law today. Finally, the thesis addresses the function of legislation as it in turn addresses warrants and interception techniques. Law and legislation, it is argued, are incapable of constraining technical operations of interception because, like interception, law is already an effect of media-technical operations. The law operates not by controlling interception, but by processing it, assigning meaning to it, and protecting the secrecy of ongoing interception operations. 3 Acknowledgements I submit this thesis precisely ten years since I moved to London to study a master’s degree at the LSE. It is a good way to end a decade. My thesis supervisors, Alain Pottage and Conor Gearty, taught me that year on topics and theories that are central to this dissertation. Conor’s advice and encouragement gave me the confidence to follow the files wherever they led. Alain patiently read and commented on countless drafts, some barely more than lists of documents, offering corrections, provocations, and drawing connections that would otherwise have been lost. Andrew Murray and Orla Lynskey trusted me to teach their students about law and information systems. Without them, my understanding of digital media would never have advanced beyond the user interface. Rachel Yarham, Linda Mulcahy, and Susan Marks created an intellectual environment at LSE that encourages doctoral students to see themselves as academics-in-training rather than students. Laura Knöpfel, Alex Damianos, Ross McElwain, and Priya Gupta provided friendship, criticism, and detailed comments at vital moments. To all I am very grateful. Thank you also to my parents. Above all, Prudence Ivey’s love and support made this possible. 4 1. INTRODUCTION 9 1.1 TECHNICAL LITERACY 9 1.2 STATING THE LAW 15 1.2.1 PREROGATIVE 1590-1985 15 1.2.2 OBFUSCATION 1985 - 2016 18 1.2.3 TRANSPARENCY 20 1.3 THE QUESTION OF SURVEILLANCE 22 1.3.1 CONTROL SOCIETY 26 1.3.2 MEDIA THEORY 28 1.3.3 FROM TEXT TO TECHNICS 30 1.3.4 THE END OF MEDIA 33 1.3.5 CULTURAL TECHNIQUES 36 1.4 METHOD, STRUCTURE, AND SOURCES 39 1.4.1 THE QUESTION 41 1.4.2 CHAPTER TWO: LETTER INTERCEPTION IN THE POSTAL EPOCH 41 1.4.3 CHAPTER THREE: INTERCEPTION AND TECHNICAL MEDIA 43 1.4.4 CHAPTER FOUR: ISSUING WARRANTS 46 1.4.5 CHAPTER FIVE: SECRECY, PUBLICITY, AND LEGISLATION 48 1.4.6 CHAPTER SIX: CONCLUSION 49 2. LETTER INTERCEPTION IN THE POSTAL EPOCH 50 2.1 INTRODUCTION: POWER RELAYS 50 2.1.1 THE MEANING OF LETTERS 52 2.1.2 MEDIEVAL LETTERS 56 2.1.3 MEDIEVAL NETWORKS 59 2.1.4 ESTABLISHING POSTS 61 2.2 SEVENTEENTH CENTURY: THE BIRTH OF INTERCEPTION 62 2.2.1 MONOPOLISING A MODE OF VISIBILITY 65 2.2.2 INTERCEPTION TECHNIQUES 68 2.2.3 CRYPTOGRAPHIA 71 2.2.4 SETTLING THE POSTS 74 2.2.5 IN THE OFFICE 75 2.2.6 STAMP AND DELIVER 78 2.3 EIGHTEENTH CENTURY: THE FUNCTION OF INTERCEPTION 80 2.3.1 THE POSTAL DISPOSITIF 80 5 2.3.2 POSTAL INTELLIGENCE 84 2.3.3 PROFESSIONAL INTERCEPTION 86 2.3.4 THE DECIPHERING BRANCH 88 2.4 NINETEENTH CENTURY: NORMATIVE CLOSURE 90 2.4.1 POSTAL RECONFIGURATIONS 90 2.4.2 SYSTEMIC CLOSURE 91 2.4.3 ADDRESSING THE NATION 93 2.4.4 INTERCEPTION AS INFRASTRUCTURAL CAPACITY 96 2.5 TWENTIETH CENTURY: MEDIA IN MEDIA 100 2.6 CONCLUSION 103 3. INTERCEPTION AND TECHNICAL MEDIA 106 3.1 INTRODUCTION: THE PROCESSOR IN THE CAGE 106 3.1.1 INTERCEPTION TECHNOLOGY 107 3.2 CABLES AND TELEGRAMS 109 3.2.1 MONOPOLISING TELEGRAPHY 109 3.2.2 TAPPING THE LINE 110 3.2.3 NETWORKED MEMORY 113 3.2.4 EMPIRE CABLES 118 3.2.5 INTERNATIONAL CABLE INTERCEPTION 121 3.3 TELEPHONES 126 3.3.1 OPERATORS 126 3.3.2 AUDIO STORAGE 128 3.3.3 CENTRALISING TAPPING 130 3.3.4 METERING 132 3.4 RADIO 134 3.4.1 COMMON USE OF THE ETHER 134 3.4.2 JURIDICAL INTERCEPTION 137 3.4.3 SHORTWAVE 140 3.4.4 SIGINT, ELINT, COMINT 143 3.5 DIGITAL MEDIA 147 3.5.1 MECHANICAL CODERS 147 3.5.2 CRYPTOLOGICAL MACHINES 152 3.5.3 HARVESTING DATA 155 3.5.4 CABLE ANALYSIS 161 6 3.5.5 EXTRA-TERRESTRIAL INTERCEPTION 164 3.5.6 THE NETWORK OF NETWORKS 168 3.5.7 COLLECT IT ALL 170 3.6 CONCLUSION 173 4. PROGRAMMING WARRANTS 176 4.1 INTRODUCTION: EXECUTION 176 4.2 MEDIEVAL WARRANTS 177 4.2.1 WARRANTS AND THE MAKING OF WRITS 181 4.2.2 SEAL AND PERSONA 187 4.2.3 ADMINISTRATIVE WRITS 189 4.3 THE INTERCEPTION WARRANT 193 4.3.1 COMMAND AND REASON OF STATE 195 4.3.2 THE FUNCTION OF WARRANTS 198 4.3.3 STORAGE PROTOCOLS 201 4.4 OFFICE MEDIA 204 4.4.1 THE LETTER COPYING BOOK 205 4.4.2 REFERENCES AND INDICES 208 4.4.3 MAKING CONNECTIONS 209 4.4.4 LINKING REGISTRIES 211 4.5 WARRANTS AND INTERCEPTION 214 4.5.1 RADIOTELEGRAPHY 215 4.5.2 TELEPHONE WARRANTS 217 4.5.3 STANDARDISATION OF INTERCEPTION WARRANTS 218 4.5.4 PROCEDURAL NORMS 221 4.6 CONCLUSION 225 5. SECRECY AND SURPRISES 227 5.1 THE LAW OF INTERCEPTION WARRANTS 227 5.1.1 THE WARRANT BEFORE THE LAW 227 5.1.2 THE DANGER OF JUDGMENT 229 5.1.3 MATERIALISING POLITICAL SECRECY 231 5.2 RE-PROGRAMMING THE PROBLEM 232 5.2.1 ASSEMBLING A JUDGMENT 235 5.2.2 THE SYMBOLIC MEANING OF AUTHORITY 239 7 5.3 BIRKETT AND PREROGATIVE 241 5.3.1 THE INSTRUMENTAL PAST IN PRINT 244 5.4 LAW AND PUBLICITY 248 5.4.1 WILKES TAKES THE STAGE 249 5.4.2 NEITHER CONFIRM NOR DENY 251 5.4.3 POLICIES OF SECRECY 254 5.4.4 PUBLICITY TRUMPS LAW 258 5.4.5 PUBLICISING SECRETS 260 5.5 MEDIATED REALITY 262 5.5.1 THEORY OF THE MASS MEDIA 263 5.5.2 CONSEQUENCES OF MASS MEDIA 269 5.5.3 BELOW THE WATERLINE WITH THE IPT 270 5.6. CONCLUSION: LEGISLATING AGAINST SURPRISES 274 6. CONCLUSION: SILICON SOVEREIGNTY 280 6.1 DIGITAL WARRANTRY 280 6.1.1 EXTERNAL WARRANTS 284 6.1.2 THE PORTAL 286 6.1.3 INTERNAL WARRANTS 290 6.1.4 LEGALITIES TABLE 292 6.1.5 DISSEMINATION AND AUDIT 294 6.2 CONCLUSION 297 BIBLIOGRAPHY 301 IMAGES 331 8 1. Introduction 1.1 Technical literacy … we need to think of it in terms of literacy, because technology is a new system of communication, it’s a new set of symbols that people have to intuitively understand. It’s like something that you learn … just like how you learn to write letters in school. You’ve learned to use computers and how they interact, how they communicate. And technical literacy in our society is a rare and precious resource.1 In June 2013, The Guardian newspaper began publishing a series of articles based on documents provided by former intelligence contractor Edward Snowden. Similar reports soon appeared in other news outlets in the United States and Germany. All concerned the capabilities and activities of the National Security Agency of the United States (NSA) and allied organisations, particularly the United Kingdom’s Government Communications Headquarters (GCHQ), in relation to the interception and exploitation of data derived from digital communication systems on a planetary scale. Snowden’s aim was to generate the conditions for a new technical literacy that would ultimately encode personal privacy and governmental accountability into law.
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