Government quietly U turns to avoid big tech showdown

Contentious encryption clause amended to postpone message app scanning until “technically feasible”

The Online Safety Bill was back in the House of Lords yesterday for the third and final time. In the final hours of debate, the most contentious clause in the Bill concerning end-to-end encryption, was amended.

Outlining the series of assessments that Ofcom must make before invoking the clause, Lord Parkinson said: "A notice can only be issued where technically feasible and where technology has been accredited as meeting minimum standards of accuracy in detecting only child sexual abuse and exploitation content."

Referring to the controversial clause which had cause several tech giants to threaten to withdraw their services from UK users, he told the House of Lords: "If the appropriate technology doesn't exist which meets those requirements, then Ofcom will not be able to use clause 122 to require its use."

The wording is clumsy but the result is clear. The government has backed down. It denies doing so, with Lord Parkinson stating:

"As has always been the case, as a last resort, on a case-by-case basis and only when stringent privacy safeguards have been met, [the legislation] will enable Ofcom to direct companies to either use, or make best efforts to develop or source, technology to identify and remove illegal child sexual abuse content — which we know can be developed," the government said

Parkinson added in the Lords: "It is right that Ofcom should be able to require technology companies to use their considerable resources and their expertise to develop the best possible protections for children in encrypted environments."

This U turn amounts to an acknowledgement that people such as Meredith Whittaker, President of Signal, have been correct all along in their very simple argument that either everybody has privacy or nobody does, and that back doors, once opened, can be used by hostile actors just as much as law enforcers. It also suggests realisation among ministers that tech giants were likely to make good on their threats to withdraw services.

Meredith Whittaker, described the government's move as a victory for the tech companies.

Will Cathcart, head of WhatsApp, said the company "remains vigilant against threats" to its encryption. He posted on X: "The fact remains that scanning everyone's messages would destroy privacy as we know it. That was as true last year as it is today."

Some of those who had expressed concerns remained more cautious.

Matthew Hodgson, CEO/CTO of open source not-for-profit Matrix.org which includes messaging platform Element, said:

"It's only what's actually written in the bill that matters. Scanning is fundamentally incompatible with end-to-end encrypted messaging apps. Scanning bypasses the encryption in order to scan, exposing your messages to attackers. So all ‘until it's technically feasible' means is opening the door to scanning in future rather than scanning today. It's not a change, it's kicking the can down the road."

The Bill will now return to the Commons for Consideration of amendments.