Investigating, or snooping: the Investigatory Powers Bill

In the run-up to yet another Super Tuesday of sorts in the US this week, and of course the national holiday of St Patrick’s Day in my corner of the world, I must confess that the law student in me lay dormant. A consequence of this was that I let an important date pass me by: that of 15th March, when the Investigatory Powers Bill was to undergo its second reading in the Commons. If you do not recognise it by that name, perhaps you will recognise it by the popular moniker of the ‘Snooper’s Charter’. (Does a rose by any other name truly smell as sweet?) Thankfully, I was able to catch up on coverage and reporting, and I thought that the news of the Bill successfully progressing to the Committee stage should merit a blog post about this controversial Bill. I will outline the summary of the Commons debate, and then move on to the bill itself.

After a lengthy debate and subsequent voting outcome, the Investigatory Powers Bill, aka the infamous ‘Snoopers’ Charter’, was passed by 266 votes in the House of Commons. This came only after Labour and the SNP backed down and abstained from voting, rather than voting against. But Home Secretary Theresa May did face criticism from her own Conservative MPs over concerns that the Bill is ill-defined, with far-reaching powers and permits too many organisations too much access to sensitive data.

During the debate, both Ken Clarke and Dominic Grieve – the ex-Attorney General – backed the proposed measures, but they each warned changes must be made at a later stage in order to ensure adequate privacy protections were in place. Speaking in support of the proposed, albeit controversial powers, Ms May seemingly sought to reassure MPs that privacy protection is enshrined within the Bill:

“[The bill] strictly limits the public authorities that can use investigatory powers, imposes high thresholds for the use of the most intrusive powers, and sets out in more detail than ever before the safeguards that apply to material obtained under those powers.”

As I mentioned previously, both Labour and the SNP abstained from the vote, which did surprise me. I had thought that the opportunity to uphold privacy, decry overzealous state policing and attempt to ensure a Government defeat would have been seized upon. Yet whilst expressing concerns that security services will be able to access sensitive internet records on the basis of vague, and ill-defined criteria, we saw abstentions in lieu of votes against. This suggests that perhaps Labour, and the SNP do not wish to be viewed as blocking Government attempts to strengthen national security at a time when global violence and terror is on the rise.

Shadow Home Secretary (and one-time Labour leader hopeful) Andy Burnham stated his belief that the UK requires new legislation in this area, and outright opposition to the Bill would only serve to leave interim laws untouched and outdated. But he seemingly confirmed my theory regarding not wanting to appear to be blocking security measures when he stated:

“To go along with [outright opposition] would be to abdicate our responsibility to the police, security services and most importantly the public.”

But he did also go on to say the Bill has ‘significant weaknesses’, and called for better protections for lawyers, journalists and trade unionists, as well as a tighter definition of which crimes would allow for data collection.

Recognising the terror threat and the work undertaken by security services did appear to be a key theme. For example, at the debate’s conclusion, Foreign Secretary Philip Hammond used this theme to reiterate his support for the Bill, saying the measures within the Bill are ‘necessary to tackle the serious threats we face’. He argued that should the Bill not pass, the UK would not be safe from the ‘myriad of threats we face’. I also have to note that this theme was present, albeit subtly, in the opening remarks of Ms May prior to the debate:

Members will be aware of the death of a prison officer who was attacked 10 days ago in east Belfast. I am sure that the whole House will wish to send its deepest sympathies to his family, friends and colleagues at this time.

The prison officer in question was Adrian Ismay, and he died following being discharged from hospital after a dissident Republican group planted a bomb under his car. In sum, a member of the security services was attacked by terrorists. The cynical side of me thinks this tragic case helped set the scene for Ms May, as she sought to argue why legislation permitting data collection to tackle terrorist threats is needed in the UK.

We can perhaps argue that through the successful outcome of the Commons vote, the Government-proposed extensive new powers to intercept and store communications data have essentially been approved by the Commons. However, perhaps realising that fears of privacy violation (and therefore Convention rights) were still present, Ms May told MPs that privacy protection is ‘hardwired’ into the new rules. Evidently, she is aware that the Bill may run the risk of being rendered incompatible with Convention rights per the Human Rights Act 1998. In addition, she has had to face criticism that the Bill has been a rush-job, the result being the ill-defined terms. Internet service providers, who will be tasked under the legislation with the collection and storage of data warned it has been brought in too quickly, with the internet Service Providers Association said:

“Even our members are not yet fully clear about what the bill will mean for them. It is vital that parliament is provided with a sufficient amount of time to scrutinise the bill.”

Such comments do not really sit well with Ms May’s comments of the Bill being, ‘clearer, with tighter technical definitions and strict codes of practice.’ But permit me to try and offer an account of the Bill, by noting the context in which it was developed, and the provisions contained within it.

The Investigatory Powers Bill was introduced to enhance the surveillance powers of the security services. It was introduced following a review by David Anderson QC in 2014 that recommended the introduction of updated powers with robust oversight. Now, it is the background of the Bill which provides assist in understanding its controversial nature. After the Edward Snowden revelations of 2013 enlightened the public regarding the sheer scale and scope of digital surveillance by both US and UK authorities, inevitably widespread concerns around privacy and freedom were sparked. At the same time however, the threat of global terror and violence is increased e.g.the rise of ISIS. As a means of combating these threats, the UK Government wants to legislate to enable greater surveillance and justify ongoing action. And so the legal quandary that is establishing equilibrium between privacy and security, and the rights of the individual v State reached Parliament.

The Bill had originally been planned for introduction during the last Parliamentary session, but faced opposition from the Conservatives’ coalition partners, the Liberal Democrats. After branding the Bill the ‘Snoopers Charter’, they blocked it from being tabled. Moreover, early plans for the Secretary of State to be granted the power to approve surveillance were hastily set aside; a judicial committee is to be appointed instead to oversee approvals. Upon the successful vote on 15h March this week, the Investigatory Powers Bill is now subject to inquiry by a Joint Committee of Peers and MPs, with cross-party membership. The aim is to ensure that the drafted Bill can engender cross-party support before it passes through Parliament. (It will not to to have claims of a pushed-through Bill via Governmental majority to empower the state with snooping powers, after all.)

The Bill is supposed to modernise current law, to ensure the UK is fit to tackle terrorism in a modern world in which cyber-security is paramount. As such, the Bill provides for key changes to the law. The biggest change is that it looks to legislate for intelligence gathering through online and phone communications. As mentioned, this includes enhanced judicial oversight and this will include interception warrants involving confidential information relating to sensitive professions such as journalists, doctors and lawyers, having to detail in full the justification for a request when the Minister approves the warrant.

From context and the basis of the Bills’ controversial nature, let’s move on to the contents. Essentially, new powers feature heavily, so it is quite understandable why many MPs voiced concern about sweeping powers and privacy violation.

In terms of powers: there are proposed powers for security services to bulk collect personal communication data, whereby data will be retained as an ‘itemised shopping list’ of websites -but not specific webpages. There is also a provision for powers which will permit security services to hack, and bug, computers and telephones. In addition, companies such as telecommunication/internet service providers will be legally obligated to assist the security services with any submitted requests. Moreover, there will be a requirement for internet and ‘phone companies to maintain a so-called ‘permanent capability’ to collect personal data.

Whilst on the topic of companies, the Bill discusses the enforcement of overseas internet and ‘phone companies. Enforcement is to be limited to interception and targeted data requests. In addition, bulk requests will not be enforceable

In terms of judicial oversight: there are provisions to ensure limitations of Ministerial power, so that they cannot authorise surveillance without the approval of a panel of seven judicial commissioners. However, there will be an exception to this. The Bill permits exemptions being made in ‘urgent cases’ needing approval within five days. Additionally, there will be oversight of surveillance activities by a single investigatory powers commissioner, who will be a senior judge.

Whilst the surveillance of the communications of members of the public can be permitted after securing the approval of a judicial commissioner panel, MPs’ communication is seemingly subject to a higher standard of protection. The Bill includes a provision to ensure communications of MPs cannot be accessed without approval from the Prime Minister. Arguably, this is for a valid reason: MPs will communication with constituents, and this information is should be kept closely guarded. Yet, there will be those who will consider the inclusion of this provision as a suggestion that the privacy of MPs is considered more important than that of the general public.

As previously noted, there have been aired concerns regarding clarity of the provisions, most recently during the Parliamentary debate this week. The criticism is with regards to definition of terms such as ‘telecommunications service’ and ‘reasonably practicable’, and on obligations placed on Communication Service Providers (CSPs). It will be interesting to see how the Government responds to these concerns going forward, and how the Committee will consider them when scrutinising the Bill.

There can be no doubt that this Bill is one to keep an eye on. Whilst the law does require an update, most especially in a time when the terrorist threat continues to rise, I cannot help but feel wary of a Bill which grants widespread powers of surveillance and monitoring.There is also the potential impact of the draft Bill with regards to legal professional and journalistic privilege to consider. As a law student with an interest in Human Rights, this Bill is a perfect example of the constant battle between the individual’s right to privacy, and the State’s responsibilities to its citizens in safeguarding national security.

The UK Government says that the Bill will update the law by essentially gathering together already existing powers. There is no doubt said powers are readily being utilised. I will leave you with this: according to the Home Office figures, there were over half a million authorisations in 2014 following requests for communications data by the police and other public bodies. Therefore to act as though this Bill is the beginning of Government surveillance is wrong. It is already here.

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