Civil liberties and the coalition have been happily filling the political pages this week. The damning conclusion of the Joint Committee on Human Rights that there is no evidence to justify expanding closed proceedings (expertly dissected by Rosalind English earlier in the week) vied for column inches with leaks that the Government planned to introduce “real time” monitoring of how we use the internet in the interests of national security.
These latter “snooping” proposals echo the ill-fated Communications Data Bill 2008, proposed by the Labour Government. After cross-party condemnation and criticism from the Information Commissioner’s Office and others, that Bill was withdrawn, with Home Office officials sent back to the drawing board.
After meeting similar condemnation in the press and online this week, and reservations expressed by the Deputy Prime Minister; it appears we can expect a draft Communications Data Bill to be resurrected in the Queen’s Speech.
The draft Communications Data Bill: What’s likely to be on the table?
There is very little information about the substance of the Government’s proposals in the public domain. Liberal Democrat MPs and others have criticised this lack of public information provided on the direction of travel. The plan seems to be to expand the Government’s capability to access communications data connected to e-mail and internet use, providing for “real time” monitoring of activity and requiring internet service providers to install new hardware to improve storage of information and facilitate Government access.
Both the Prime Minister and the Home Office blame advancing technology for gaps in the existing law on surveillance, which they argue make the detection and prevention of crime more difficult. It has been suggested that criminals are moving away from the use of mobile phones to Skype and other web-based forms of communication, and that current law has failed to keep up. The Deputy Prime Minister has accepted that the existing rules may need to be changed to “keep pace with technology”.
The Home Secretary argues “new technology can also be abused by criminals, paedophiles and terrorists who want to cover their tracks and keep their communication secret”. She adds “there are no plans for any big Government database. No one is going to be looking through ordinary people’s e-mails or Facebook posts. Only suspected terrorists will be investigated”. Both the Prime Minister and the Deputy Prime Minister have been quick to issue assurances that plans will not apply to the substance of what we say online or in e-mails. In order to secure access to that material, a “warrant” would still be necessary.
What’s the problem?
Late last year, JUSTICE published its own call for the modernisation of surveillance in the UK, including the controls on communications data. In Freedom from Suspicion, we call for operation for wholesale reform of the Regulation of Investigatory Powers Act 2000 (“RIPA”), to improve transparency and accountability and to ensure a proportionate balance is struck between the need for legitimate surveillance and the individual right to privacy.
Reviewing the criticism of the previous proposals to expand communications data surveillance, it would appear to apply equally to recent leaks:
- The Government rightly makes the distinction between “communications” and “communications data”. Traditionally this distinction was simple and easy to understand: a letter was communication; the information on the envelope, communications data. However, expanding technology means that communications data related to digital communication is increasingly more complex, provides more information about individuals and difficult to detach from the substance of any exchange. Even if the two can technically be separated, which has been called into question, as the Information Commissioner has cautioned, “you can tell an awful lot about some people’s circumstances from the people they are talking to and the websites they visit” (Freedom from Suspicion, paragraphs 182 – 186)
- The Home Secretary and the Prime Minister assure us that the Government will only use expanded powers for the limited investigation of legitimate threats. However, the arrangements for the storage of information about where we go and what we do on the web engage our right to respect for privacy. That the Government may not wish to access this material doesn’t automatically render that storage proportionate and necessary. Expanding the arrangements for storage must be justified. Whether Government access to that information can be justified, and if so, what safeguards are appropriate is a distinct issue. As the Information Commissioner has warned, expanding powers to access everyone’s information creates a “step-change” in the relationship between the State and the individual. Is this change justifiable? When the Government may be looking for the proverbial needle in a haystack, will expanding the haystack actually be counterproductive? Freedom from Suspicion, paragraphs 172 – 181
- The existing powers which public authorities have to access communications data are extremely broad, and accompanied by very few safeguards. If any public authority seeks communications data now, they must persuade a colleague in their organisation that they believe it is necessary to act (RIPA, Section 22). The Protection of Freedoms Act will require local councils to check with a judge, but other bodies, including for example, the Charity Commission, the Food Standards Agency and the Pensions Regulator, remain free from scrutiny Freedom from Suspicion, paragraphs 149 – 171).
Unfortunately, the leaked plans fail to address the underlying failings inherent in RIPA. At the heart of JUSTICE’s concerns is a simple question: shouldn’t most surveillance – including communications data requests – be subject to prior judicial oversight?
A panoply of problems with RIPA continue to surface; over the past year we’ve seen phone hacking, the problems caused by inadequately controlled undercover agents and the potential collapse of the Mark Duggan inquest due to the bar on the admissibility of intercept evidence (Freedom from Suspicion, paragraphs 9-10, 129-139).
Before the Government asks for new powers of surveillance, it should get its house in order.
The early leaks testing public and political opinion illustrate that opposition to these proposals is at least as strong as in 2008. We share the many concerns expressed that proposals echoing the Communications Data Bill 2008 would potentially impinge on individual privacy and have a chilling effect on the right to free expression (see JUSTICE’s response to the 2009 consultation).
That the Government appears to have downgraded from a Bill to a draft Bill is welcome. Consultation on a draft Bill – and an opportunity for pre-legislative scrutiny by Parliament – will provide an opportunity for a rational conversation about the regulation of surveillance and modernisation, to re-examine whether existing powers are fair, proportionate and accompanied by adequate safeguards.
If, as expected, any consultation is focused on expanding information available to Government, the cynical criticism that the (draft) Communications Data Bill is yet another power grab by the Security Agencies will be hard to avoid.
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