Archive for the ‘Snooper’s charter’ Category


European Court rules against UK government in a landmark case

In September 2018, the European Court of Human Rights ruled that the UK government’s surveillance activities acted against the human rights of its citizens.  It said the ‘UK mass surveillance programme violated human rights and had no real safeguards in place’.  British intelligence agencies – principally GCHQ – violated the right to a private and family life because there was insufficient oversight over which communications were chosen for examination.

As the Independent newspaper puts it:

Under the guise of counter terrorism the UK had adopted the most authoritarian surveillance regime in Europe corroding democracy itself and the rights of the British public.  13 September

A number of human rights organisations, including Amnesty and Liberty, have been pursuing this case and the result is to be welcomed.  Amnesty were particularly concerned because they themselves were penetrated by GCHQ.  In view of the sensitivity of Amnesty’s work and the contacts with vulnerable people around the world, to find that a government agency was calmly monitoring its work is alarming.  The wholesale nature of the Tempora programme was a shock to many.

What is also alarming is the lack of oversight of the agencies.  Despite, as the New Statesman puts it, an ‘alphabet soup’ of organisations which are meant to be overseeing and monitoring what they are up to, it was the work of journalists and human rights organisations which finally brought the government to account.

For many people this is a matter of little interest.  People often say they are unconcerned if their emails are being monitored and their movements tracked.  ‘If I have done nothing wrong, so what?’ is a common response.  Likewise, the discovery that people were being manipulated using Facebook over the Brexit vote has evoked little real interest.

For those who have lived in an authoritarian state on the other hand, and have experienced first hand what it’s like to be subject to constant and intrusive surveillance, the reaction is likely to be different.

When Britain leaves the EU, the current government was determined to remove us from the aegis of the court and to abolish the Human Rights Act.  This was a manifesto promise.  That position has shifted during the Brexit negotiations and we will continue to be subject to its jurisdiction.  This has infuriated that section of the Conservative party who do not wish to be controlled by ‘foreign courts’ as they put it.

This ruling emphasises how important it is that we stay within the ECHR.  Clearly, parliament, MPs and various oversight agencies failed in their basic duty of oversight.  There is a legitimate desire to detect terrorists and those who wish to do harm to the country or individuals within it.  This is written in Salisbury where the attempted murder of two Russians by agents of the GRU is a case in point.  We rely on the various state agencies to keep watch over individuals with malign intent.  But is has to be targeted and subject to oversight.  We give up a bit of our liberty and freedom because we want to be safe.  It does not mean giving a free hand to collect any information that GCHQ feels it needs in a kind of fishing expedition.  We also rely on parliament to keep and eye on the executive and its agencies to see that they are properly monitored and behaving responsibly.  They fail in that.

This ruling is welcomed and we now need to hear from government what measures they are going to adopt to put matters right.  We also rely on the opposition to ask questions of the government and to keep their feet to the fire.

Sources: the Independent; the New Statesman; the Guardian; Amnesty International 

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Dark day for democracy and free speech.  Government gets ‘the most extreme powers ever’

The Investigatory Powers Bill became law this week and it is a dark day for democracy, not just in the UK, but the signal it gives to the rest of the world.  That one of the oldest democracies in the world should want to garner for itself, a whole set of powers to pry into peoples communications and to find out journalists’ sources is a matter of shame.  It will provide increased encouragement to regimes around the world to clamp down further on their citizens.

The wonder of it is that so many people are so relaxed about it.  Although over 130,000 people protested, the government took little notice.

Picture: 5pillarsuk.com

The state needs to have a security apparatus. When the nation is under threat either in the time of war or by terror groups, it must have the means to investigate.  This is likely to mean eavesdropping in some form or other.

There is also the issue of secrecy and confidentiality.  People in government should have the means to discuss ideas and float policy ideas without it being published in the media – to start with at least.

Technology has provided a means now to invade individual’s private space with ease.  Technology has surpassed the law in this regard.  Nearly all the key technologies are operated out of Silicon Valley in the USA over which we have no control.  Is it not interesting that Britain voted to come out of the European Union and one of the key reasons was sovereignty.  Yet in this regard, sovereignty is in California.

The Guardian reports:

The new surveillance law requires web and phone companies to store everyone’s web browsing histories for 12 months and give the police, security services and official agencies unprecedented access to the data.

It also provides the security services and police with new powers to hack into computers and phones and to collect communications data in bulk. The law requires judges to sign off police requests to view journalists’ call and web records, but the measure has been described as “a death sentence for investigative journalism” in the UK.  (29 November 2016)

The increasing ability to intercept communications has and is having an effect on free speech.  It is described as having a ‘chilling effect’.  Journalists working on these topics have to go to extraordinary lengths to cover their tracks.  Material has to be hidden abroad for protection from the security services.  Some other issues are more open to debate.

In case of war and terrorist attacks, the media quickly falls into line and the normal business of tackling government ministers is forgotten.  It quickly becomes a matter of supporting ‘our boys’ and even questions of the quality of kit for example do not get asked.

The crucial issue is one of power and control.  The very business of being able to pry into anyone’s private affairs gives the state enormous powers.  As citizens we should expect that these powers are used when necessary; are subject to control wherever possible (like the controls on searches); are subject to close scrutiny, and are in accord with properly laid down laws.  Controls on operational matters should not be in the hands of politicians who cannot on the whole be trusted with secrets of this nature.  The level of intrusion should be matched by the degree of scrutiny.

As usual, supporters of snoopery will trot out the old adage that if you have nothing to hide you have nothing to fear.  This is, in its most fundamental way, true.  But the trouble is that as with all these moves what we are seeing is only the thin end of a very long and dangerous wedge.  Most law-abiding people have no reason to worry about other people knowing what websites they have visited.  But once you give the authorities the ability to do this history tells us that this ability will, inevitably, end up being abused.  (Daily Mail)

In the 3 or so years that the ‘Snooper’s Charter’ has been debated, it is often stated by members of the public that they are not concerned and if the security services want to listen in to their conversations with their auntie they are free to do so – ‘I’ve got nothing to hide’ is the frequent refrain.  Yet if police and security services arrived at their front door and searched their house and computer without a warrant or reason to do so, they would be outraged.  Is the difference just that one is visible and the other isn’t?

Likewise, if you asked these same members of the public ‘do you trust our politicians?’ they would think you were a little mad. Yet they are happy to allow them or their agents to intrude into their affairs.  The current Home Secretary is Amber Rudd and readers of Private Eye and the Daily Mirror will have read several revelations about her less than honest business affairs involving dodgy companies and diamond mines.  Questions have also been asked about her tax affairs.   To her, the nation entrusts its secrets.

To come of course is the promised withdrawal from the European Court and the threatened repeal of the Human Rights Act.

We have not lived in a state such as existed in East Germany, Romania or the Soviet Union where the degree of control was extreme. Thus people in the UK are not aware of the harmful effects of giving too much power to those in power.

Finally, is it even sensible in its own terms?  Someone once said that hunting for terrorists was like ‘hunting for a needle in a haystack’.  Is it wise then to increase the size of the haystack?

Chilling.


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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.


Teresa May, Home Secretary

Teresa May, Home Secretary

The government announced its fifth attempt to introduce the snooper’s charter in the Queen’s Speech a few weeks ago.  Called the Investigatory Powers Bill, it looks to be more wide ranging than was previously expected.  Most people seem to be quite relaxed about this.  There few signs of a grass roots campaign taking place and there do not seem to many letters to national papers on the subject.

In conversation people will say things like ‘if they want to listen in to me chatting to a friend they are welcome’ and ‘I’ve got nothing to hide’ is a popular refrain or they accept that it is a price we have to pay for increased surveillance of terrorist threats.  Some do not believe it possible with the millions, nay billions of emails; phone calls; Skype sessions; tweets and so forth, that it would ever be possible for the security services to do this, perhaps not understanding that it is metadata they are after.

There are few who would disagree with the need for our security services to look out for possible terrorist threats or indeed other major crime activities such as people or drug smuggling.  The justification by ministers for the need for increased surveillance has been based on the fear of terrorist activity especially after the terrible outrage on 7/7 almost 10 years ago.

At the heart of the debate is the issue of trust.  We cannot know much of what the security services do for fairly obvious reasons and this means the notion of transparency does not have much relevance.  We want to trust however that the intelligence services do the right thing to protect us.  We want to trust them to be concerned with terrorists and serious crime.  We would like to be reassured that someone is in overall control who is able to ask the relevant questions.  It is here that there is a problem: namely if you ask people ‘do you trust politicians?’ you are likely to receive a dusty answer.  The sweeping powers demanded by ministers and in turn the intelligence agencies, gives them considerably increased powers to pry into our lives.  The powers are sweeping in nature and in effect treat everyone as a suspect.

The report by David Anderson QC published this month is entitled ‘A Question of Trust’ tackles this issue head on.  There have been a succession of scandals over the years which mean trust in politicians and those at the top of our society is extremely low.  The Leveson enquiry revealed an unholy alliance between senior Metropolitan Police officers and sections of the media.  Anderson proposes that oversight shall not be by politicians but by senior judges.  Many would agree with this.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.  UN Declaration of Human Rights

The whole issue of trust emerged on 15 June with the results of the investigatory powers tribunal into

GCHQ

GCHQ

GCHQ.  It emerged that this agency has been covertly monitoring two human rights organisations, one in South Africa and one in Egypt.  The case was brought by Privacy International, Amnesty International, the American Civil Liberties Union and Liberty.  It made ‘no determination’ on whether GCHQ intercepted these latter organisations illegally.  It is left open therefore whether they (we) are being monitored and their messages being intercepted.

So while ministers talk of terrorist threats to gain support for ever widening intrusion, their agencies intercept and monitor journalists, whistleblowers, human rights groups and defence lawyers in what has been termed a ‘scandalous misuse of terrorism legislation’*.  Sir Tim Berners-Lee has observed that ‘the UK has lost the high moral ground and is doing things even the NSA weren’t’.  We need to be extremely concerned at the government’s proposals.

Sources:

Liberty; Amnesty International; The Spectator*; The Guardian