Archive for the ‘Investigatory powers bill’ Category


Parliament debates security Bill

The Investigatory Powers Bill was debated in Parliament on 15 March in a lengthy second reading debate and there were many good quality contributions made by Members on all sides of the House.  Only days after the debate we had a terrible reminder of the terrorist threat with the attacks in Brussels on 22 March.  The need to maintain an intelligence system to find potential terrorists before they take action and to track them down afterwards was recognised by all the speakers in the debate.

There were several concerns about the Bill one of which was what Andy Burnham called the ‘point of balance’ between security and privacy (column 824).  This was occasioned by the concerns about mass surveillance and the desire to collect and store Internet Connection Records (ICR) for 12 months.  Dominic Grieve – although supportive of the Bill – said that it did not ‘include a clear statement on overarching privacy protections’ (836).

A similar point was made by the SNP MP Joanna Cherry who felt the Bill did not go far enough to ‘protect civil liberties’ (839).  The powers sought went beyond those of other western democracies and she worried that they set a dangerous precedent to Commonwealth countries in particular.

One concern in particular was the clause about economic well-being which could be used against trade unions (862).  In past eras, the security services had been found to use the powers and techniques they then had to frustrate trade union activity.

There was a lot of debate about the difference between ‘content’ data and ‘contact’ data (855).  Many say that the security services are mostly interested in the latter to help them track movements and contacts between criminals, they are less interested in the content which may be encrypted anyway.  David Davis pointed out that two law lords had expressed incredulity because the government had sanctioned illegal surveillance of discussions between a lawyer and his client (864).  This highlighted the issue of trust: that the Bill proposed that the sanctioning of interception would be by a minister and ultimately, can they be trusted?

To what extent are Ministers accountable?  One MP said that attempts to find out information are refused either because it is a criminal matter or, the information was a matter of national security.  Hence the argument was ‘misconceived’ (845).

One of the beliefs behind this activity is that bulk collection will help with finding intelligence.  Evidence from the USA concerning the activities of the NSA (American equivalent of GCHQ) was that the bulk collection of data had not led to the discovery of previously unknown terrorist plots or the disruption of a terrorist attack.  It was initially claimed that 50 such plots had been prevented but once they were examined in detail only one money laundering case was found.  In other words there is a lot of false claiming of success going on.

The notion that ‘the more privacy we sacrifice the more security we gain’ was challenged by more than one speaker (843).  This concept underpinned several speakers in favour of further intrusion citing cases of abducted children and paedophile activity in support of their case.

It was clear throughout the debate that members are struggling with the rapid increase in technology which is increasing the number of ways to communicate and the ability to store and sort vast amounts of data.  As the technology advances, so the issue of privacy and civil liberties comes into play because it is some much easier today to intrude into someone’s life.  The point was made that this intrusion can include digital cameras, games consoles and baby monitors (846).

A lack of clarity with some of the wording is a key issue.  The need for precision of language about what and how much can be intercepted was stressed (843).  Trust is an issue and it is important to remember that the debate may not have happened had it not been for the revelations by Edward Snowden.  We were blissfully ignorant of the sheer extent of the penetration of phones, emails and so forth and the relevant committee knew little of it either.

So the key issues appear to be the bulk collection of data and whether this is advisable or even achievable; the conflict between security and privacy and the control mechanisms to ensure that there is suitable oversight.  Linked to the latter is the issue of trust especially in the light of actions by previous governments for example intruding into Doreen Lawrence’s phone.

After the terrible events in Brussels, there will be an understandable desire for ‘something to be done’.  Had the debate taken place after that outrage then it might have taken on a different tone.  Politicians have to reflect the media and since much of our media is already ill-disposed towards the Human Rights Act, it is understandable that human rights and the free movement of people around Europe would be questioned.  It is more than ever necessary to keep a cool head.  Terrorism is about an attack on values and one of our key values is respect for individuals and the rule of law which includes basic rights enshrined in the HRA.

The Bill moves onto the committee stage and it will be interesting to see how the debate on control and oversight is played out.  Peter Curbishley


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Why we should be concerned

The revised Regulatory Powers bill has now been published and has been debated in parliament.  It is better known as the ‘snoopers’ charter’ and tries to put the interception activities of the security services on a sound legal footing.  The previous act, RIPA, was clearly inadequate and revelations by Edward Snowden revealed that it was being widely circumvented and ignored.

It has to noted that the public at large is mostly relaxed about the degree of intrusion into their electronic activity.  The wholesale interception of emails, phone calls, Skype, Facebook and the like arouses no great passions.  The general view can be summed up as ‘I’ve got nothing to hide so they’re welcome to look at my emails if they want to.’

The line put across by politicians is that these powers are needed to defeat the activities of terrorists; international criminals; people smugglers and the like is widely accepted and seen as a price worth paying if we are to remain safe and such people are to be put behind bars.  The paradox however is that if you ask people the question ‘do you trust politicians?’ you are likely – indeed almost certain – to receive a very dusty or robust answer.  They are seen  – often unfairly – as untrustworthy, interested in their own careers, acting as lobby fodder or simply being out of touch.  So allowing these individuals additional powers does seem to be something of a contradiction.

So what are the arguments about the Regulatory Powers Bill and why does it all matter?  First is the issue of trust to which we have already alluded.  Before Snowden, many of the same politicians were telling us that matters were under control and that warrants and searches were only used when strictly necessary.  It was then revealed that comprehensive snooping was underway and that the ministers concerned – including those on the select committee – had little or no idea of the scope of the activity.  GCHQ was hoovering up large quantities of information seemingly without any oversight.

David Davis MP with Kate Allen, Salisbury Cathedral

David Davis MP, 3rd from left

… and they still don’t.  Only a very few individuals get to see the core information since most of it is presented in terms of briefings.  This goes back to the war when the JIC was set up to look at all the information and then put it together to inform the cabinet committee.  Very few MPs have any serious experience of intelligence matters and the nature and sensitivity of the information they receive makes it difficult for them to find out.  David Davies MP says we have a ‘comforting illusion’ about our intelligence services which leads to complacency.

There is a natural tendency for all organisations to talk up the issues they deal with.  By highlighting risks it enables them to win resources in Whitehall battles and in battles with sister agencies.  This needs to be remembered when blood-curdling threat assessments are issued.

There is a belief that more is better.  By simply amassing more and more information using ever more powerful computers it is argued this will enable the intelligence services to protect us better.  The only problem is that time after time it has been found to be wanting.  The 45 minute claim is the most famous but there are others.  Only this week we read of the death of Ahmed Chalabi who misled the USA in many different ways over Iraq.  So despite the massive scale of the American intelligence system, the billions of dollars spent on the CIA and NSA, one man comprehensively fooled the State Dept. over a period of several years.

A fundamental issue at stake is one of power.  It was not so long ago, following the collapse of East Germany, that the scale of their intelligence activities by the Stasi were revealed.  Miles and miles of underground corridors existed with hundreds of thousands of files on almost every citizen in the state.  Children informed on their parents; brother informed on brother; neighbour on neighbour.  All typewriter fonts were recorded so that any typed samizdat could be traced.  It was a nightmare world of paranoia and poisoned a generation.  People in the West were horrified when this was revealed.  That was clumsy by comparison to what the agencies can do today in the internet era.  Yet we seem relaxed, not horrified.

The issue of power and who has it is central to the debate.  Our society is based on division of powers in part going back to Magna Carta.  For one group to have too much power is recognised as dangerous.  We have the Lords (however imperfect) and the Commons.  We have a separate judiciary.  We have a reasonably independent media.  These divisions prevent despotism or at least make it exceedingly hard to achieve.  In addition there are elections every 5 years.

By allowing the intelligence agencies, to pry into every communication, to intercept communications between lawyer and client; to intercept emails of human rights groups such as Amnesty and to tap into the phones of journalists, is extremely dangerous and alters the balance of power significantly.  All these things have happened.

It is also dangerous because of the frailty of the people in power.  Lord David Owen in his books has investigated the mental capacity of various leaders in times of stress particularly war.  In both The Hubris Syndrome (Politico) and in In Sickness and In Power (Methuen) he shows that senior politicians can be unstable and suffer from hubris.  This led for example, Tony Blair and George W Bush to ignore or manipulate intelligence to fit their beliefs and with disastrous results.

The thirst for power can itself be dangerous.  Obtaining it, holding on to it, fighting off those who want to take it from them, and wielding it, can be the all consuming passion for a politician.  It is for these very reasons we should be extremely wary of granting them the advantage of even more intrusion.

It might reasonably be asked however, what about terrorist activity and especially a group like ISIS (or whatever we agree to call them)?  They are undoubtedly a cruel and dangerous organisation.  But they are not an existential threat to the UK.  Even if they manage to pull off some outrage in this country, it cannot be argued that they will change our way of life.  Giving up our liberties and our right to privacy is a heavy price to pay on the uncertain promise of greater security.

Our freedoms and liberties have been acquired over many centuries and we should be extremely wary at giving them up.  Vague promises of judicial oversight – which are empty since they will only oversee the process not the actual decision – should not blind us to the fundamental risk this bill will pose if it gets enacted.  Combined with the intention of scrapping the Human Rights Act, this is something to be worried about.

Draft_Investigatory_Powers_Bill


Sources

Guardian, 9 Nov 2015 ‘We haven’t had a Stasi or Gestapo, so we are intellectually lazy about surveillance‘  Interview with David Davis MP

Shami Chakrabarti, On Liberty Penguin Politics 2015.  Discusses threats to liberty generally.

FH Hinsley British Intelligence in the Second World War HMSO 1979.  Discusses how intelligence was organised and presented during the war.