What to look out for in Britain’s new surveillance bill
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Version 0 of 1. American opposition to mass surveillance is almost as old as the country itself: rejection of the use of “general warrants” to rummage through private homes was “the first act of opposition to the arbitrary claims of Great Britain”, according to John Adams, the US founding father. That sentiment came full circle when US surveillance powers were reduced for the first time this millennium, in the expiry of Patriot Act clauses used to justify the bulk collection of Americans’ phone records. Related: Glenn Greenwald says Australia is 'one of most aggressive' in mass surveillance True to 18th-century form, Britain continues to use its modern “general warrants” to intercept digital communications en masse and has no intention of reducing powers anytime soon. In fact, chances are that we’ll soon see a new law in the UK extending, rather than reducing, surveillance powers. It is now clear that the government intends to pursue wholesale reform of surveillance law in the UK in the guise of the investigatory powers bill, which the government would like to see passed within a year. In some ways, this is a positive development: after two years of intense scrutiny by courts and committees, Britain’s legal framework for surveillance has been found desperately wanting, and a decision to overhaul surveillance law, rather than simply extend powers by attempting a revival of the snooper’s charter, raises the prospect that the government may be taking heed of some of the criticisms it has received. On the other hand, the investigatory powers bill could well turn out to be the government’s attempt to correct the technical legal failings of the current framework, insulating it from the inevitable criticism of the European court of human rights, while acquiring even more invasive surveillance powers. It is certainly not encouraging that the government has begun drafting the bill before publishing the report of David Anderson QC, an independent reviewer they themselves commissioned to assist in guiding surveillance law reform in Britain. This suggests that few of the criticisms levelled at the government – at the lack of transparency, disdain for accountability and disregard for democratic processes inherent in the current surveillance system – have been heeded. Anderson’s report will be critical to this debate and expectations are high that it will propose bold reforms to surveillance law in Britain. There are at least five areas in which it is hoped Anderson, and ultimately the investigatory powers bill (which should reflect his recommendations) will suggest serious changes be made to the law of surveillance and investigatory powers in Britain. The repeal of the “mass surveillance provision” Section 8(4) of the current law regulating surveillance, the Regulation of Investigatory Powers Act 2000, paired with other provisions is the law which – according to the intelligence and security committee (ISC) and the investigatory powers tribunal – allows the British government to conduct mass surveillance of every communication entering and leaving its shores. What the ISC terms “bulk interception” and believes is perfectly justifiable is, in fact, mass surveillance, indiscriminate monitoring of people in Britain and abroad, and must be halted. Putting judges in charge of authorising surveillance Currently, surveillance is signed off by a minister, or her delegate, on the application of a police or intelligence agent. Unlike many other countries, surveillance in Britain is not overseen by a judge or a court, who might bring an independent eye to bear on the exercise of what are highly intrusive powers. According to the ISC’s February 2015 report, there are currently 19 warrants in place that cumulatively authorise the interception of billions of communications each day. None of those warrants were independently authorised prior to their issuance. It is simply insufficient to accept that every decision to commence surveillance is ultimately a political one, requiring political judgment. The ultimate calculation of whether to commence surveillance, and thus interfere with privacy, must be a legal one, made by a competent, impartial judicial authority. Affording communications content and communications data the same protections It should be well established by now that metadata – information about communications – is as valuable to the government as the content of those communications; on occasion it is even more so. Those who have attested to the value of metadata include the NSA’s general counsel Stewart “we kill people based on metadata” Baker, and the court of justice of the European Union. Accordingly, metadata must be afforded the same protections that are afforded to content; its collection should be viewed as akin to the interception of emails and the tapping of phones. Using this as a premise, surveillance law reforms should roll back data retention, as mandated by the Data Retention and Investigatory Powers Act 2014, and refrain from enacting new communications data laws that would require communications service providers (CSPs) to collect third-party communications data (as was proposed in the previous snooper’s charter). Ensuring that there is no surveillance without suspicion British law does not currently require the police or intelligence agencies to articulate any reason, beyond reference to broad goals of protecting national security or preventing crime and disorder, to commence interception of communications, either in a targeted or blanketed manner. The fundamental starting point for any surveillance should always be the presence of a reasonable suspicion that a person or people are in some way deserving of having their rights violated. People should not be treated as suspects merely because they use the internet; suspicion must come prior to interferences with privacy. Ending discriminatory privacy protections The mass surveillance provision in Ripa allows for the British government to intercept the communications of anyone in the world if those communications flow through the UK. Foreigners, or British people travelling outside the UK, have no protections from invasive surveillance. This must change. The nature of global communications means that individuals have no control over where their communications go, and people should not be disadvantaged simply because their emails cross a country that practises mass surveillance. We are all foreigners to someone, and just as we would not like our emails being read by the French or Chinese governments, so too should the British government afford privacy protections to people, no matter what their location. Any less is not only discriminatory, it undermines the global security of digital communications. There are many more issues that the investigatory powers bill must address in reforming surveillance law – it must protect internet security and encryption, put intelligence sharing on legal footing and improve redress mechanisms and oversight. It will be a challenge but also a historical opportunity – a decisive moment in which Britain can follow the example of the US, and put an end to an era of pervasive surveillance, or continue to relive its dark history of general warrants and arbitrary invasions of privacy. If it chooses the latter, the government should again expect a revolt. |