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| Spies may not like the Anderson plan – but their world needs a revolution | |
| (about 2 hours later) | |
| Requiring judicial authorisation for the interception of communications would be a revolutionary change in the world of spies and secrets – the biggest for some 400 years. David Anderson QC, whose report on investigatory powers calls for a shift in power from politicians to judges, notes that a secretary of state was intercepting messages as long ago as 1643; and Viscount Falkland, who held office during the English civil war, was unlikely to have been the first minister to order private letters to be opened. | Requiring judicial authorisation for the interception of communications would be a revolutionary change in the world of spies and secrets – the biggest for some 400 years. David Anderson QC, whose report on investigatory powers calls for a shift in power from politicians to judges, notes that a secretary of state was intercepting messages as long ago as 1643; and Viscount Falkland, who held office during the English civil war, was unlikely to have been the first minister to order private letters to be opened. |
| Related: UK intelligence agencies should keep mass surveillance powers, report says | Related: UK intelligence agencies should keep mass surveillance powers, report says |
| Interception of communications is a power that Theresa May, Falkland’s distant successor, exercised 2,345 times last year. Now Anderson, who is also the government’s independent reviewer of terrorism legislation, has told her to give it up. | Interception of communications is a power that Theresa May, Falkland’s distant successor, exercised 2,345 times last year. Now Anderson, who is also the government’s independent reviewer of terrorism legislation, has told her to give it up. |
| Anderson’s support for bulk interception capabilities will come as a relief to GCHQ. The eavesdropping agency persuaded him that bulk interception had a valuable role to play in protecting national security – though he said it was for the courts to decide whether its use was proportionate. | Anderson’s support for bulk interception capabilities will come as a relief to GCHQ. The eavesdropping agency persuaded him that bulk interception had a valuable role to play in protecting national security – though he said it was for the courts to decide whether its use was proportionate. |
| What’s rather wonderful about Anderson’s findings on bulk interception is his ability to provide examples. GCHQ gave parliament’s intelligence and security committee a number of case studies that the committee said could not be published – even in redacted form – without significant risk to GCHQ’s capabilities and consequential damage to the national security of the UK. Anderson regarded that omission as unfortunate and has published six outline examples drawn from real cases. | |
| One of them involved an airline worker in the UK who had been planning a terrorist attack. Though the man is not named in Anderson’s report, he appears to be Rajib Karim, who was convicted in 2011 and jailed for 30 years. Anderson discloses that the individual concerned “had taken great care to ensure that his extremist views and plans were totally concealed in his offline behaviour, meaning that this investigation and conviction would have been highly unlikely without access to bulk data”. | One of them involved an airline worker in the UK who had been planning a terrorist attack. Though the man is not named in Anderson’s report, he appears to be Rajib Karim, who was convicted in 2011 and jailed for 30 years. Anderson discloses that the individual concerned “had taken great care to ensure that his extremist views and plans were totally concealed in his offline behaviour, meaning that this investigation and conviction would have been highly unlikely without access to bulk data”. |
| Now terrorists have been told about the value of bulk data, it is possible they will begin communicating in other ways | Now terrorists have been told about the value of bulk data, it is possible they will begin communicating in other ways |
| Now that terrorists have been told about the value of bulk data, it is possible that they will begin communicating in other ways. But the examples Anderson has published give very little detail about how bulk data can be analysed. We know, for example, that it was used in one case to track down terrorists who used “unique and distinctive communications methods … by querying bulk data for these distinctive patterns”. So effective was the process that one group was arrested “en route to conducting a murderous attack”. But that’s about as much as we are told about the agencies’ capabilities. | Now that terrorists have been told about the value of bulk data, it is possible that they will begin communicating in other ways. But the examples Anderson has published give very little detail about how bulk data can be analysed. We know, for example, that it was used in one case to track down terrorists who used “unique and distinctive communications methods … by querying bulk data for these distinctive patterns”. So effective was the process that one group was arrested “en route to conducting a murderous attack”. But that’s about as much as we are told about the agencies’ capabilities. |
| Although Anderson has not sought to deprive the agencies of any of their powers, he does call for greater safeguards in the use of communications data. It used to be thought that information about a communication – for example, any associated phone numbers or email addresses – was less informative than its content. That’s no longer the case, and metadata, as it’s called in the US, can be extremely useful to the authorities. So Anderson is right to call for authorisation by a judicial commissioner at “a new body: the Independent Surveillance and Intelligence Commission” (Isic), if an agency is making a novel or contentious request for communications data. A similar restriction would apply to information that is legally privileged. Anderson also recognises that special safeguards are needed for lawyers and journalists, as well as others who handle privileged information. | Although Anderson has not sought to deprive the agencies of any of their powers, he does call for greater safeguards in the use of communications data. It used to be thought that information about a communication – for example, any associated phone numbers or email addresses – was less informative than its content. That’s no longer the case, and metadata, as it’s called in the US, can be extremely useful to the authorities. So Anderson is right to call for authorisation by a judicial commissioner at “a new body: the Independent Surveillance and Intelligence Commission” (Isic), if an agency is making a novel or contentious request for communications data. A similar restriction would apply to information that is legally privileged. Anderson also recognises that special safeguards are needed for lawyers and journalists, as well as others who handle privileged information. |
| Anderson makes a persuasive case for handing interception of communication powers to Isic, an independent body that would be established under the forthcoming investigatory powers bill, and would absorb the three judicial commissioners who currently monitor the use of covert powers. Isic would audit as well as authorise. | Anderson makes a persuasive case for handing interception of communication powers to Isic, an independent body that would be established under the forthcoming investigatory powers bill, and would absorb the three judicial commissioners who currently monitor the use of covert powers. Isic would audit as well as authorise. |
| If Anderson’s recommendations are accepted, one comprehensive and comprehensible statute would replace the 65 different statutory provisions under which 600 public bodies can obtain information. And the new act would give additional powers to the investigatory powers tribunal, a “secret court” that is no longer quite so secret. | If Anderson’s recommendations are accepted, one comprehensive and comprehensible statute would replace the 65 different statutory provisions under which 600 public bodies can obtain information. And the new act would give additional powers to the investigatory powers tribunal, a “secret court” that is no longer quite so secret. |
| The security and intelligence services, still coming to terms with the consequences of Edward Snowden’s unauthorised disclosures in the Guardian two years ago, are not expected to welcome the creation of Isic. Because interception and property warrants must be approved personally by a secretary of state, MI5, MI6 and GCHQ maintain a close working relationship with senior ministers, and ministers gain a close understanding of the agencies’ work. The system is surprisingly nimble, allowing warrants to be issued in the middle of the night if necessary. | The security and intelligence services, still coming to terms with the consequences of Edward Snowden’s unauthorised disclosures in the Guardian two years ago, are not expected to welcome the creation of Isic. Because interception and property warrants must be approved personally by a secretary of state, MI5, MI6 and GCHQ maintain a close working relationship with senior ministers, and ministers gain a close understanding of the agencies’ work. The system is surprisingly nimble, allowing warrants to be issued in the middle of the night if necessary. |
| One statute would replace the 65 different statutory provisions under which 600 public bodies can obtain information | One statute would replace the 65 different statutory provisions under which 600 public bodies can obtain information |
| But those arguments are trumped by the importance of establishing or re-establishing public confidence in the agencies. Anderson has called his report A Question of Trust, and he says that the public can no longer be counted on to entrust politicians with individual intercept decisions. The UK is unique among the “Five Eyes” security partners – the UK, the US, Canada, Australia and New Zealand – in making no use of judges for the prior authorisation of interception warrants. Even so, US intelligence agencies can bypass judicial authorisation in the Fisa – Foreign Intelligence Surveillance Act – court by using an executive order known as EO 12333; and there are other exceptions. | |
| Parliament’s intelligence and security committee, formerly chaired by Sir Malcolm Rifkind, also opposed replacing ministers with judges. In March the committee concluded that ministers were able to take account of the wider context of each warrant application as well as the risks involved. Judges, by contrast, could decide only whether a request was legally compliant. In addition, ministers were democratically accountable for their decisions. | Parliament’s intelligence and security committee, formerly chaired by Sir Malcolm Rifkind, also opposed replacing ministers with judges. In March the committee concluded that ministers were able to take account of the wider context of each warrant application as well as the risks involved. Judges, by contrast, could decide only whether a request was legally compliant. In addition, ministers were democratically accountable for their decisions. |
| But the committee was envisaging an arrangement whereby serving judges would sit in something similar to the US Fisa court. Under the Anderson model, Isic would comprise retired judges who could indeed take account of the wider context. And it is difficult to see how a secretary of state can be held accountable for individual warrants if the reasons for making them can never be disclosed. | But the committee was envisaging an arrangement whereby serving judges would sit in something similar to the US Fisa court. Under the Anderson model, Isic would comprise retired judges who could indeed take account of the wider context. And it is difficult to see how a secretary of state can be held accountable for individual warrants if the reasons for making them can never be disclosed. |
| And what’s left of the so-called snoopers’ charter, the draft communications bill dropped by the coalition in 2012? The compulsory retention of records of user interaction with the internet – “web logs” – would certainly be useful to the agencies. But, says Anderson, the security services would need to make out a detailed operational case before the proposal was reintroduced. And there should be no question of advancing proposals for the compulsory retention of third-party data without a compelling operational case. Anderson believes that this extremely expensive project is no longer the priority it once was. | And what’s left of the so-called snoopers’ charter, the draft communications bill dropped by the coalition in 2012? The compulsory retention of records of user interaction with the internet – “web logs” – would certainly be useful to the agencies. But, says Anderson, the security services would need to make out a detailed operational case before the proposal was reintroduced. And there should be no question of advancing proposals for the compulsory retention of third-party data without a compelling operational case. Anderson believes that this extremely expensive project is no longer the priority it once was. |
| He is rightly scathing about the Regulation of Investigatory Powers Act 2000 – one of the acts that permits the interception of communications. “Obscure since its inception, [Ripa] has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates”, he says. “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.” | He is rightly scathing about the Regulation of Investigatory Powers Act 2000 – one of the acts that permits the interception of communications. “Obscure since its inception, [Ripa] has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates”, he says. “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.” |
| Who could disagree? But starting afresh – drafting a new bill from scratch in user-friendly, security-cleared language and to a strict parliamentary timetable, would be a huge undertaking. From what has appeared so far, the government seems well disposed towards Anderson’s aims. Whether his recommendations are deliverable before the end of next year – when the Data Retention and Investigatory Powers Act 2014 self-destructs – is far from certain. But they would be a huge improvement and one that the government should now endorse. | Who could disagree? But starting afresh – drafting a new bill from scratch in user-friendly, security-cleared language and to a strict parliamentary timetable, would be a huge undertaking. From what has appeared so far, the government seems well disposed towards Anderson’s aims. Whether his recommendations are deliverable before the end of next year – when the Data Retention and Investigatory Powers Act 2014 self-destructs – is far from certain. But they would be a huge improvement and one that the government should now endorse. |
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