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UK intelligence agencies should keep mass surveillance powers, report says UK intelligence agencies should keep mass surveillance powers, report says
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UK intelligence agencies should be allowed to retain controversial intrusive powers to gather bulk communications data but ministers should be stripped of their powers to authorise surveillance warrants. UK intelligence agencies should be allowed to retain controversial intrusive powers to gather bulk communications data but ministers should be stripped of their powers to authorise surveillance warrants, according to a major report on British data law.
Related: David Anderson, terror watchdog, publishes report on surveillance powers - Politics live The 373-page report published on Thursday – A Question of Trust, by David Anderson QC – calls for government to adopt “a clean-slate” approach in legislating later this year on surveillance and interception by GCHQ and other intelligence agencies.
That is the conclusion of a major report on British data laws published on Thursday that proposes changes to the oversight of GCHQ and other intelligence agencies. However, Downing Street hinted that David Cameron was unlikely to accept one of his key recommendations: shifting the power to agree to warrants from home and foreign secretaries to a proposed new judicial commissioner.
The 373-page report, A Question of Trust, by David Anderson QC, also comes in response to revelations by the US whistleblower Edward Snowden about the scale of government surveillance disclosed two years ago. The prime minister’s spokeswoman said the authorities needed to be able “to respond quickly and effectively to threats of national security or serious crime”, which appears to suggest ministers are better positioned to do this than judges.
GCHQ will be happy to have retained its bulk collection powers while privacy campaigners will be dismayed. The privacy lobby will take comfort though in the shift on warrants to judicial control. Related: No 10 hints it will reject key proposal in David Anderson's surveillance report - Politics live
The security agencies are likely to be relaxed about judicial control, which would bring the UK into line with the US and many other intelligence-gathering countries. Anderson’s report, commissioned by Cameron last year, comes in response to revelations by the US whistleblower Edward Snowden about the scale of government surveillance disclosed two years ago.
As a direct consequence of the Snowden revelations, the report recommends that existing legislation on surveillance, the Regulation of Investigatory Powers Act (Ripa), be scrapped and fresh legislation drafted from scratch.
Related: Snooper's charter: landmark report to be released on surveillance powers
The report by the official reviewer of counter-terrorism laws, was commissioned by David Cameron in July last year. The findings are likely to feed into proposed legislative changes on surveillance announced in the Queen’s speech.
Anderson, introducing his report, said: “Modern communications networks can be used by the unscrupulous for purposes ranging from cyber-attack, terrorism and espionage to fraud, kidnap and child sexual exploitation. A successful response to these threats depends on entrusting public bodies with the powers they need to identify and follow suspects in a borderless online world.Anderson, introducing his report, said: “Modern communications networks can be used by the unscrupulous for purposes ranging from cyber-attack, terrorism and espionage to fraud, kidnap and child sexual exploitation. A successful response to these threats depends on entrusting public bodies with the powers they need to identify and follow suspects in a borderless online world.
“But trust requires verification. Each intrusive power must be shown to be necessary, clearly spelled out in law, limited in accordance with human rights standards and subject to demanding and visible safeguards. “But trust requires verification. Each intrusive power must be shown to be necessary, clearly spelled out in law, limited in accordance with human rights standards and subject to demanding and visible safeguards”.
“The current law is fragmented, obscure, under constant challenge and variable in the protections that it affords the innocent. It is time for a clean slate. This report aims to help parliament achieve a world-class framework for the regulation of these strong and vital powers.” GCHQ and other intelligence agencies are likely to be satisfied with the recommendations. GCHQ successfully fought to retain its bulk collection powers and Anderson agreed. In contrast with the UK, the US Congress last month placed curbs on bulk collection of phone records by the intelligence agencies.
GCHQ successfully fought to retain its bulk collection powers. The recommendations of Anderson contrast with events in the US, where the NSA saw at least some curbs placed on bulk collection of phone records by Congress last month. Privacy campaigners also largely welcomed Anderson’s recommendation to scrap existing surveillance legislation – the Regulation of Investigatory Powers Act (Ripa), the proposed new judicial commissioner and other proposals.
Anderson, asked about the contrast with the US, said it would be “quite wrong” to compare laws across jurisdictions, arguing that the US had not abandoned bulk data collection.
He argued that there will be some new curbs on warrants for bulk data collection in the UK, including “a tighter definition of the purposes for which it is sought, defined by operations or mission purposes”.
One of the biggest changes in the report is that “all warrants should be judicially authorised by a judicial commissioner at a new body: the Independent Surveillance and Intelligence Commission”.
Removing the power from ministers could meet with resistance from Westminster, where some ministers and MPs will argue that democratically elected members should be making these decisions rather than judges who do not have access to up-to-date information of terrorist threats.
The new Independent Surveillance and Intelligence Commission would replace three existing bodies.
Anderson said that the existing legislation had reached the end of its useful life. “Ripa, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.”Anderson said that the existing legislation had reached the end of its useful life. “Ripa, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.”
The new judicial body, the Independent Surveillance and Intelligence Commission, would be responsible for all surveillance warrants, according to the report.
There would be some new curbs on warrants, including “a tighter definition of the purposes for which it is sought, defined by operations or mission purposes”.
Anderson also proposed safeguards against snooping on journalists, lawyers and other groups. The report says that when communication data is sought from people handling privileged or confidential information, including doctors, lawyers, journalists, MPs or ministers, “special consideration and arrangements should be in place”.
As well as approving individual warrants, the judicial commissioner would also be responsible for a new bulk data collection warrant in limited circumstances. Anderson gives an example of bulk data collection under the heading of “attack planning by ISIL [Islamic State] in Iraq/Syria against the UK”. Anderson also makes clear that this would not affect existing programmes of communications data surveillance.
But the removal of the power to approve warrants from ministers may never fly. Ministers will argue that democratically elected politicians are better placed to make these decisions rather than judges who do not have access to up-to-date information on terrorist threats.
The home secretary, Theresa May, speaking in the Commons after the report was published, said she would publish a draft surveillance bill in the autumn and legislate before the end of 2016. She promised there would be a proper overhaul of investigatory powers legislation and not “simply rebranding existing law”.
She described the threats facing the UK as considerable. “In the face of such threats, we have a duty to ensure that the agencies whose job it is to keep us safe have the powers they need to do the job,” she said.
May was immediately questioned by David Davis, one of the leading Conservatives on civil liberties issues, who praised the report and the prospect of judicial control over warrants, saying that, with the exception of Zimbabwe, the UK has the world’s worst record in allowing politicians to authorise surveillance.
May said the government would consider the idea of transferring responsibility to judges. “I am not in a position to say whether the government will do one thing or another,” she said.
The intelligence agencies, including GCHQ, have been expressing concern about the increasing use of encryption to protect privacy, with internet providers beginning to offer this as standard.The intelligence agencies, including GCHQ, have been expressing concern about the increasing use of encryption to protect privacy, with internet providers beginning to offer this as standard.
Anderson, in his report, said few propose a master key to all communications be held by the state. “Far preferable, on any view, is a law-based system in which encryption keys are handed over (by service providers or by the users themselves) only after properly authorised requests.” Anderson, in his report, does not propose legislating on the issue. He said few propose a master key to all communications be held by the state. “Far preferable, on any view, is a law-based system in which encryption keys are handed over [by service providers or by the users themselves] only after properly authorised requests.”
Anderson said he could not condone Snowden’s disclosure. National security had suffered, he added, but there had also been benefits from the disclosure of the some of the intelligence agency capabilities. Anderson said he could not condone Snowden’s disclosure. National security had suffered, he added, but there had also been benefits from the disclosure of some of the intelligence agency capabilities.
“The opening up of the debate has however come at a cost to national security: the effect of the Snowden documents on the behaviour of some service providers and terrorists alike has, for the authorities, accentuated the problem of reduced coverage and rendered more acute the need for a remedy,” the report says. “The opening up of the debate has, however, come at a cost to national security: the effect of the Snowden documents on the behaviour of some service providers and terrorists alike has, for the authorities, accentuated the problem of reduced coverage and rendered more acute the need for a remedy,” the report says.
Jo Glanville, director of English PEN, welcomed the report, saying: “While we would have liked to see the recommendations go even further in relation to GCHQ’s bulk collection of data, we welcome the recommendations for judicial authorisation and the call for a rigorous assessment before any further powers are given to the intelligence services in a revived snooper’s charter.”
Eric King, the deputy director of Privacy International, said: “This is the final nail in the coffin for Ripa … David Anderson’s strong recommendations for improvement are the first step towards reform, and now the burden is on the government, parliament and civil society to ensure that reforms go further and ensure that once and for all, our police and intelligence agencies are brought under the rule of law.”