New Digital Surveillance Laws Could Destroy The Online Queer Community
By Heather Davidson
In light of recent events in the U.S. — namely Trump’s America and all its accompanying darkness — it’s been easy to forget that the UK is in the midst of its own rapid descent into paranoid right-wing authoritarianism.
Sadly, it rarely takes very long for another chilling reminder to come along. Two recent pieces of legislation — one passed, one still making its way through Parliament — could have a devastating effect on the ability for queer folk to organize and express themselves online, both in Britain and the rest of the world.
The first, the Investigatory Powers Bill (IP Bill), was approved by the House of Lords last week and is expected to become law by the end of the year. Among other powers, it requires internet service providers to store all their customers’ browser history for a year, legally obligates companies to assist security services in bugging devices and bypassing encryption, legalizes the police and intelligence services hacking both UK and foreign citizens, and allows for the collection and storage of personal data en masse.
As a result, it was described as the “most extreme surveillance law ever passed in a democracy” by Jim Killock, director of the Open Rights Group, and has been opposed by everyone from representatives of the UN — the United Nations privacy chief, Joseph Cannataci, has called it “worse than scary” — to Silicon Valley’s biggest companies. Late last year, Facebook, Google, Microsoft, Twitter, and Yahoo banded together to submit written evidence to Parliament arguing that the bill would undermine their users’ trust and security, and likely result in global legal conflicts. Their complaints were among hundreds that were officially submitted against the Bill by legal bodies, businesses, and civil liberties groups.
The Bill was first introduced in its current form last year, but Conservative Prime Minister Theresa May has been pushing for such powers since at least 2012. May — who voted against both equalizing the age of consent for heterosexual and homosexual sex and legalizing gay adoption, and whose time as Home Secretary saw LGBTQIA asylum seekers forced to provide intimate photos and videos to “prove” their sexuality — argued in 2015 that the IP Bill was necessary in order to ensure that Britain’s surveillance laws were “modern, fit for purpose, and can respond to emerging threats as technology advances.”
Conservative MP Theresa May, who has a history of fighting against LGBTQ rights, has been instrumental in pushing for increased digital surveillance.
It was no doubt those looming “threats” that led the IP Bill to pass without much Parliamentary opposition. The terror attacks and increasing global instability of the last two decades — as well as the subsequent fear-mongering from those looking to take advantage — have made it an easy decision for many to sacrifice privacy for the promise of security. However, as queer folk, we simply can’t make that choice as lightly.
Whether an activist, someone in the closet, or just a human who doesn’t want the police to know about their porn preferences, many of us rely on the ability to keep our online lives private, safe, and secure. We’ve already seen the consequences where that isn’t the case — online entrapment by police in LGBTQIA communities in the Arab world, the tracking of activists through social media in the U.S., and the illegal surveillance of NGOs like Amnesty International in the UK.
The particular danger posed for queer folk in allowing the government to monitor our online activities was made obvious just a few days after the passage of the IP Bill, when reports came out regarding part of a wide-reaching piece of legislation proposed by the Department for Culture, Media & Sport called the Digital Economy Bill.
That Bill includes what its summary describes as provisions “for restricting access to online pornography.” Online pornography has been one of the Conservatives’ favorite targets over the past few years. In 2013, the government forced the UK’s biggest internet service providers to implement blocks on adult content by default, requiring customers to opt-in in order to see the websites of sexual health charities and women’s crisis shelters that ended up flagged under the filter.
The next year, a wide range of sex acts deemed “not acceptable” were quietly banned from being depicted in paid-for online pornography through an amendment to existing legislature. The Association for TV on Demand (ATVOD), which had been tasked with regulating online porn in 2010, used the new powers to target niche and fetish porn producers who fell foul of a bafflingly vague set of guidelines banning “the infliction of pain,” “any form of physical restraint”, or a “tendency to deprave and corrupt” their audience.
The most well-known victim of the new law was the feminist BDSM websitedreamsofspanking.com, which was shut down in 2015, but re-opened this year, after a lengthy legal battle determined that online content did not fall under ATVOD’s remit. ATVOD was dismantled at the end of 2015, but during that year’s election, the Conservatives had vowed to crack down on porn websites without “effective [age] controls” if they won.
Sadly, they did, and the Digital Economy Bill was introduced as a way to enforce that pledge. It compels all porn websites — free or paid-for — to run identity checks on their visitors and, in initial drafts of the Bill, introduced fines for those which didn’t comply. While being forced to hand over ID in order to access porn is concerning enough, a recently added clause calls for non-compliant sites to be blocked outright, instead of fined.
The Bill places oversight of online pornography and its age-verification in the hands of the British Board of Film Classification (BBFC). And here’s where it gets even worse, dystopian really — it doesn’t just give them the power to ban websites that fail to implement stringent enough age checks, but any site showing “non-conventional” sex acts.
This brings all online pornography under the same censorship rules as those previously enforced by ATVOD, and those imposed on pornographic physical media like DVDs and magazines. Said rules have long been criticized for disproportionately focusing on queer sex acts, particularly those associated with people with vaginas and their pleasure.
Female ejaculation, menstrual blood, face-sitting, and fisting are all banned, the latter two being deemed “life-threatening” by the BBFC (which makes me think they’re probably doing them wrong). Kink also lies in the firing line, with depictions of spanking, public sex, and both physical and verbal humiliation set to be disallowed online. The BBFC has long refused to discuss bans on individual sex acts, but argues that the content it censors is likely to cause “moral harm” through “encouraging anti-social attitudes, reinforcing unhealthy fantasies . . . [and] . . . eroding a sense of moral responsibility.”
Funnily enough, all the sex acts listed above are entirely legal in the UK. I’m free to enjoy an evening of fisting with my girlfriend, but should I distribute any photos or videos of our night together, I would fall foul of the BBFC’s “four-finger rule,” and be subject to prosecution. Incidentally, were that footage to instead feature me being double penetrated or ejaculated on, I would have no problems selling it.
Pandora Blake, owner of dreamsofspanking.com, has been a vocal opponent of the Bill, calling it a “disaster for people with marginalized sexualities.” The proposed regulations, she has argued, will have a ruinous effect on the smaller, independent porn producers that cater to those outside the mainstream; they will not only be more affected by the BBFC’s discriminatory censorship, but also by the cost of running age verification checks for all their customers, many of whom are likely to be scared away by the resulting requirement to provide ID.
Pandora Blake, owner of dreamsofspanking.com, has been a vocal opponent of the Digital Economy Bill.
The Digital Economies Bill is nothing less than an attempt to regulate the online expression of queer, kinky, and feminist sexuality out of existence, and the British government’s determination to pass it alongside the terrifying surveillance measures found in the Investigatory Powers Bill should sound the alarm for the queer community worldwide.
Online communities have provided a vital safe haven and organizing space for LGBTQIA folk since the very advent of the internet, and we need to be vigilant toward any attempt to compromise our privacy and freedom of expression. Britain’s determination to pass sweeping surveillance and censorship powers will no doubt embolden regimes in other countries to step up their own online interference.
That’s concerning for everyone, but potentially life-threatening for those in countries where homosexuality remains outlawed; indeed, following the passing of the IP Bill, Rick Falkvinge, founder of the Swedish Pirate Party, published a blog post arguing that:
“if today’s surveillance and law enforcement had existed in the 1950s, homosexuality would still be illegal [in the U.S.]. People could not have organized and argued that the law was immoral; it would just have been a matter of rounding up the then-criminal-by-law homosexuals.”
It’s true that the majority of the measures introduced in both Bills are easy to circumnavigate with a VPN and some basic cybersecurity. However, we can’t be complacent. Successive British governments have worked to criminalize most other common online security methods, and it’s likely only a matter of time before VPNs come under fire.
It’s been illegal since 2000 to refuse to disclose your password when asked by law enforcement, and while then-Prime Minister David Cameron was widely mocked last year for announcing his intention to ban encryption, just last month, a man appeared in court in London under terrorism charges that included “researching an encryption program, developing an encrypted version of his blog site and publishing the instructions around the use of program on his blog site.”
If you’re wondering how legitimate those charges are, a study published this year reported that just under half of all internet traffic is encrypted.
It’s too late to fight against the Investigatory Powers Bill; all we can do is try and protect ourselves from its consequences. However, there’s still time to mobilize against the Digital Economy Bill, and all other legislation around the world that puts queer folks’ online lives in danger. The internet has given us the ability to come together and express ourselves with safety and anonymity, and has revolutionized queer relationships, community, and activism in the process — we can’t let everything we hold dear to be put at risk.