The Investigatory Powers Bill

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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The world has been shocked by the events in #Paris and the murder of journalists and cartoonists at the offices of Charlie Hedbo.  It was an appalling attack of freedom of speech and the right of journalists to be rude and to attack politicians, religions and all those in positions of power.  We pride ourselves on our ability to speak reasonably freely and we cherish the right to say what we like about all manner of topics.  This right is limited of course by laws of defamation and such matters as not stirring up racial hatred.  But lampooning or satirising power in all its forms does not in any way justify going into someone’s offices and gunning them down in a cold blooded attack.

But at times like this we have to be careful that those who wish to limit our freedom in different ways do not use these frightful and frightening events to seek greater powers to control our lives.  It was no doubt a complete coincidence that Andrew Parker, the head of MI5, gave a speech the day after the Paris massacre arguing for yet more powers.  The claim is that they needed these powers to tackle the increased risk of terrorist attacks in this country.  In similar vein, the ‘snooper’s charter’ is back in the frame with the Home Secretary trying to reintroduce it.

We have to be very careful however not to lose basic liberties because of knee jerk reactions to events such as the Paris massacre.

We all of us want to be safe and we are happy to allow the security services to go about their business to keep us so.  There is however a risk of ever greater intrusion and surveillance which can be misused to do things which are nothing to do with defeating terrorism.  Revelations about the miner’s strike¹ where the security services were involved in framing Arthur Scargill and the role of the government of the day’s involvement in that, are a reminder that we need to keep a careful watch on their activities.  Levenson showed the unholy alliance between the Metropolitan police and the press with information being sold by corrupt police officers.  Undercover police officers are another example.

There is – or should be – a kind of contract in place.  We say to the security services that we accept that if they have concerns about an individual or group of individuals, then they can intercept messages, emails, post and such like to find out what is happening.  But there must be some political oversight to this.  The Home Secretary should issue warrants and a close watch kept on the results.  The Intelligence and Security Committee must also keep a watchful eye on our behalf.  Another link in the chain is the press who should be keeping a critical eye on the politicians.

The Snowden revelations showed the huge extent  of existing penetration of communications by GCHQ in the UK and the NSA in America.  Names of all sorts of programs were revealed showing the shear scale of penetration.  Of course this does not mean that everyday conversations are being listened to: that is impossible.  But meta-data is collected and phone and email records are matched up to link individuals together who might be involved in potential criminal activity.  Through all this hardly a word was seen in our media about it.  After Snowden, there was scarcely any coverage in our press (in the UK) with the sole exception of one newspaper.  The BBC and other broadcasters were largely silent.

It seemed to be a shock also to the Intelligence and Security Committee (ISC) chaired by Sir Malcolm Rifkind.  Sir Malcolm’s shortcomings and seeming blindness cannot be expressed any better than this quote from the Guardian (14 December 2014) following the torture allegations:

[…] Malcolm Rifkind, who chairs the ISC, cannot by any figment of the imagination be deemed independent, nor is his committee. Why is this discredited committee allowed anywhere near an investigation into the spy agencies and torture?  Nick Clegg says he wants to know the truth about torture.  What is desperately needed is the appointment of a respected and credible panel of independent people to seriously investigate what GCHQ has been up to while hiding behind the NSA cloak of subterfuge.’

The Committee has failed to investigate, or show proper oversight, of the security services and their wholesale penetration activities, rendition or the contracting out of torture to countries such as Libya.  Thus a key link in the chain is not there.  The Committee is not fit for purpose.  The near silence of the press is also disappointing.  The tabloid press repeated the need for greater intrusion with little sign of critical analysis.

We all want security but as everyone has said following the Paris outrages, we live in a free society.  The intelligence services have an important role to play but we must not lose our liberties in a panic reaction to those events.

1. see The Enemy Within by Seumas Milne, Verso, 2014

Data Retention Act

Last week, the Government announced that the Data Retention and Investigatory Powers Bill (DRIP) #DRIP is to be rushed through Parliament with almost no time for debate.  Various human rights groups, including Amnesty International, have launched a case against the Government to the Investigatory Powers Tribunal.

Why the panic?  The need for a law arose because the European Court of Justice in April nullified existing data retention powers.  The obvious question therefore  is why wasn’t something done before?  David Davies MP has called this rush to legislate ‘a theatrical emergency’.  Tom Watson MP said it was a ‘stitch up.’

wire tap imageThe Snowden revelations have shown the extent and reach of interception by the Government to be on an enormous scale.  Over half a million requests for data have been made.  It was revealed that RIPA — the act which is supposed to limit how much snooping can go on — is widely sidestepped because emails, Skype calls, Facebook messages and tweets are routed through American servers and are thus exempt.  Cables which carry traffic across the Atlantic are tapped by GCHQ.

In parallel with this panic legislation, is the scandal concerning alleged child abuse activity in Parliament.  Here, the files have disappeared or have been shredded.  In recent years we have had the expenses scandal, the Leveson enquiry which exposed serious wrongdoing in the Metropolitan police, government and the Murdoch group and now the child abuse allegations. Files possibly revealing extraordinary rendition flights to Diego Garcia are also believed lost.

Yet we are invited to give the government more — or rather reinstate — powers lost because of the CJEU judgement.  It is to be hoped that even at this late stage, parliament will act to prevent further intrusions into personal liberty in the name of catching ‘terrorists, serious and organised crime and paedophiles’.  Interesting that arms dealers were not on the list.

It may be worth recalling the words in a report by the International Commission of Jurists, the Geneva based NGO, which carried out a three global study on the ‘War on Terror’.

In the course of this enquiry, we have been shocked by the extent of the damage done over the past seven years by excessive or abusive counter-terrorism measures in a wide range of countries around the world.  Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights.  The result is a serious threat to the integrity of the international human rights legal framework.’

These words are echoed by Dame Stella Rimington the former head of MI5:

”[the Government] … attempt to pass laws which interfere with people’s privacy … it would be better that the Government recognised that there are risks, rather than frightening people in order to be able to pass laws which restrict civil liberties, precisely one of the objects of terrorism: that we live in fear and under a police state.’

Ray Corrigan, Senior Lecturer in Technology with the Open University, writing in Open Minds said;

I would argue there is no balance to be achieved between ‘individual right to privacy and the collective right to security’ [quoting Malcolm Rifkind, chair of the Intelligence and Security Committee].  The collective right to security requires an individual and collective right to privacy.  It is fundamentally incompatible with the rule of law – and a healthy society – to collect information about every member of the population in the hope of conducting post hoc fishing expeditions to look for evidence of misbehaviour. 

At present, the public are surprisingly relaxed about this continuing and increasing intrusion.  If however, a policeman turned up at someone’s doorstep, without a warrant or any reason or cause, and insisted on searching the house and looking through personal documents, there would be an outcry.  Protestations by the policeman that the person ‘might be a terrorist or paedophile’ would be swept aside in a torrent of media and public fury.  MPs would rush to the airways to express their concern and the prime minister would be challenged about it at PMQ.  Yet the routine interception of emails and the like evince almost no concern.  Only a handful of MPs are likely to vote against the Government.  Yet ultimately, what is the difference between a policeman on the doorstep and the state bugging your phone?

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