One law for us and another for you?
What the UK Government wants to be able to do in the Investigatory Powers Bill now under discussion, is to extend its power to intercept private electronic communications. This gives great power to the state and its organs to know about and interfere with, the citizen.
Although increased state powers are always predicated on the need to protect people and prevent crime, we are now too well aware that governments and their officials are all too capable of acting illegally themselves and of misusing information so obtained. It would be naive not to recognise the links that exist, and always have existed, between those in the know, with either foreign powers and criminal elements. (For more information on how this worked see http://veaterecosan.blogspot.co.uk/2016/02/british-secret-intelligence-1988.html) It is authoritatively claimed that government has always been more interested in preventing leaks of failures, than of investigating the failures themselves.
No less than ten pieces of primary terrorism legislation have been passed since the year 2000 (See: https://en.wikipedia.org/wiki/Terrorism_Acts) yet it and the extensive powers of surveillance that already exist in and between nation states, still haven't protected us apparently from the outrages to which we have been subjected, most recently in Paris. Curiously these invariably lead to arguments for greater powers but never an examination why existing ones were ineffective.
Why is the Draft Investigatory Powers Bill important?
Surveillance powers can play an important role in fighting serious crime. But the current framework fails to provide sufficient safeguards to ensure it is conducted in a necessary, proportionate and accountable way – online and offline.
The Government’s Draft Investigatory Powers Bill is a once in a generation opportunity to shape our laws for the better – however current proposals will make us less safe and less free. And it's not just us saying that. Voices from across the political spectrum have joined internet companies, tech experts and civil liberty campaigners to call for a redraft of the Bill.
That’s why we need you to add your voice to Liberty’s Safe and Sound campaign for a secure and private Britain.
The authorities do a vital job but abuses can and have happened. The Metropolitan police accessed journalists’ phone records, spied on a grieving Baroness Lawrence and her family and infiltrated social and environmental justice groups to the extent that women were tricked into serious relationships – one even having a child with an undercover officer. GCHQ spied on a torture victim and his lawyers challenging MI6 complicity in his kidnap to Gaddafi’s Libya and unlawfully intercepted the communications of human rights organisations including Amnesty International.
We expect the State to obtain a warrant before entering our homes, never mind searching them and taking away our belongings. Why should it be any different when it comes to our communications?
As ever greater amounts of our lives are stored, shared and sent online, a detailed and intimate picture of you can be pieced together – revealing much more than any search through your bedside drawer. Don't we all deserve some basic protections?
These crime-fighting tools can be used in a way that both keeps us safe and respects our privacy – show your support by signing up to Liberty’s Safe and Sound 8 Point Plan today.
1. Judicial warrants
All surveillance requests must be authorised by a judge.
All surveillance requests must be granted a warrant by a judge before that surveillance takes place – including requests to intercept communications, send undercover operatives to spy on people, or hack and access our data.
And what the Home Secretary has touted as “judicial authorisation” in the IP Bill isn’t actually judicial authorisation at all. The Bill creates a new approach involving a “Judicial Commissioner”.
Ministers will continue to authorise warrants before passing them to a Commissioner – and all they’ll have the power to do is “review” the decision. Relegated to little more than glorified rubber-stampers, they’ll only be able to disagree with outrageously unreasonable requests. A huge number of democratic countries require judicial warrants for surveillance – including all the other countries involved in the Five Eyes Alliance; USA, Australia, Canada and New Zealand.
2. Respect our data
No new blanket powers forcing communications companies to store more – and more revealing types – of our data.
The Independent Reviewer of Terrorism, David Anderson, has warned that the case for a host of bulk surveillance powers has not been made. The USA and a number of other European and Commonwealth countries do not compel service providers to retain their customers’ weblogs for inspection by law enforcement, and continuing down this road will place Britain in the company of authoritarian regimes across the world.
Additionally, the track record of internet companies to keep that data safe doesn’t fill us with confidence (for example see the recent hacking of TalkTalk - four people so far have been arrested including some under the age of 16).
3. Targeted surveillance - for a reason
Surveillance should only be conducted for a number of tightly defined reasons i.e. investigating serious crime and preventing loss of life. Strong legal protection should be provided for privileged and confidential material.
There is no convincing evidence that mass surveillance is vital to save lives. Rather, the amount of data currently being collected overwhelms the security services, making us less safe. Surveillance should be conducted for a narrow range of tightly defined purposes i.e. in the targeted investigation of serious crime and other legitimate objectives such as preventing risk to life. However it is currently being used for vague and non-crime related purposes (as recognised in the High Court judgment in Liberty’s challenge to DRIPA with MPs David Davis and Tom Watson).
A targeted approach to surveillance - requests and warrants must target individuals on the basis of suspicion in criminal activity.
Liberty is calling for a targeted, as opposed to mass or 'thematic', approach to surveillance. As revealed by Edward Snowden, the Agencies have claimed powers to intercept and hack entire telecommunications systems meaning billions of innocent communications are routinely intercepted and processed.
The Draft Bill seeks to put these powers on the statute book and expand them - new provisions allow the Agencies to acquire 'bulk personal datasets' and communications on millions of innocent people.
Retention of communications data and surveillance warrants should instead target individuals on the basis of suspicion of involvement in serious crime.
Liberty is currently challenging the present approach of mass, speculative, suspicion-less interception of “external warrants” at the Court of Human Rights.
Strong legal protection for privileged and confidential material
Legislative safeguards providing additional protection for legally privileged communications, journalistic sources and parliamentarians’ correspondence should be enshrined in primary legislation.
4. Transparency and Redress
All surveillance powers should be publicly disclosed and explicit safeguards set out in the IP Bill. There must be improved redress and increased transparency for people who have been spied on.
The IP Bill has introduced an element of transparency by identifying which surveillance powers the Government is using. However, the Bill is light on detail, and fails to provide necessary safeguards to protect the powers from abuse. In fact, the Bill would introduce new imprisonable offences for whistleblowers, preventing injustices becoming public.
Redress mechanisms must also be improved
A person who was the subject of intrusive and targeted surveillance methods must be told when they are no longer under suspicion (unless there is a good reason for maintaining secrecy).
Further, the Investigatory Powers Tribunal (IPT) – which hears legal challenges against the use of surveillance – must be reformed and made more transparent. Currently it isn’t required to hold oral hearings and if it finds against a complainant it can’t give its reasons for doing so. It cannot make a formal declaration, a “declaration of incompatibility”, that legislation violates the Human Rights Act.
The IPT must become more transparent and open to the public. Whilst the IPT remains so shrouded in secrecy, it is impossible to hold the security services to account for human rights abuses.
5. Use of intercept evidence in court
Intercepted communications should be admissible in criminal trials.
The bar on the admissibility of intercept evidence, if properly obtained via a judicial warrant, in criminal proceedings should be lifted. Why is this vital evidence not used to bring perpetrators to justice?
6. Fair and open international data sharing laws
The arrangements for intelligence sharing of surveillance data between the UK and other countries must be set out in law and available to the public.
Transparent and proportionate arrangements for the sharing of surveillance data between intelligence agencies should be agreed between the UK and foreign States, made publicly available and incorporated into law.
Mutual Legal Assistance Treaties (MLAT) – law enforcement tools governing the exchange of information between countries – should be improved and replace attempts to place extraterritorial obligations on foreign tech firms (as proposed in the Draft Investigatory Powers Bill).
7. Protect our encryption standards
Safeguard our country’s security by protecting - not undermining - encryption standards.
Encryption is vital to the security of our online communications. If we weaken standards to allow Government to get its hands on more of our personal communications, that information is vulnerable to use and abuse by the bad guys too. Do we really want our iMessage communications to be less secure than those of people using the service in other countries?
8. Recognition of the unique threat mass hacking poses to our security
Hacking is a grave privacy intrusion - much more intrusive than “traditional” forms of state surveillance, including interception, and its capacity to undermine device, network and internet security can’t be overstated.
It carries unlimited and untested potential for Government to act against the security and economic interests of its own citizens, whether consciously or otherwise.
The Government's draft legislation would allow mass hacking of devices, affecting potentially millions of innocent users' devices, undermining the safety of us all. Hacking should only be used in extremis as a last resort, and warrants should always specify named suspects or premises.
Powers once afforded states, are seldom rescinded, and the inability of the citizen to inquire into how they are being applied, the whole topic wrapped up in a culture of secrecy, means there is effectively no control to prevent misuse. Even in a democracy this is dangerous.
Were government minded to become more authoritarian and repressive than at present constrained, it would of course be a prerequisite.
If the bill passes into law, will anyone be protected from the listening ears or prying eyes of others with evil intent?
The following is a document by 'Liberty', in response to the proposals. It can be found here:
https://www.liberty-human-rights.org.uk/campaigning/safe-and-sound
Why is the Draft Investigatory Powers Bill important?
Surveillance powers can play an important role in fighting serious crime. But the current framework fails to provide sufficient safeguards to ensure it is conducted in a necessary, proportionate and accountable way – online and offline.
The Government’s Draft Investigatory Powers Bill is a once in a generation opportunity to shape our laws for the better – however current proposals will make us less safe and less free. And it's not just us saying that. Voices from across the political spectrum have joined internet companies, tech experts and civil liberty campaigners to call for a redraft of the Bill.
That’s why we need you to add your voice to Liberty’s Safe and Sound campaign for a secure and private Britain.
The authorities do a vital job but abuses can and have happened. The Metropolitan police accessed journalists’ phone records, spied on a grieving Baroness Lawrence and her family and infiltrated social and environmental justice groups to the extent that women were tricked into serious relationships – one even having a child with an undercover officer. GCHQ spied on a torture victim and his lawyers challenging MI6 complicity in his kidnap to Gaddafi’s Libya and unlawfully intercepted the communications of human rights organisations including Amnesty International.
We expect the State to obtain a warrant before entering our homes, never mind searching them and taking away our belongings. Why should it be any different when it comes to our communications?
As ever greater amounts of our lives are stored, shared and sent online, a detailed and intimate picture of you can be pieced together – revealing much more than any search through your bedside drawer. Don't we all deserve some basic protections?
These crime-fighting tools can be used in a way that both keeps us safe and respects our privacy – show your support by signing up to Liberty’s Safe and Sound 8 Point Plan today.
1. Judicial warrants
All surveillance requests must be authorised by a judge.
All surveillance requests must be granted a warrant by a judge before that surveillance takes place – including requests to intercept communications, send undercover operatives to spy on people, or hack and access our data.
And what the Home Secretary has touted as “judicial authorisation” in the IP Bill isn’t actually judicial authorisation at all. The Bill creates a new approach involving a “Judicial Commissioner”.
Ministers will continue to authorise warrants before passing them to a Commissioner – and all they’ll have the power to do is “review” the decision. Relegated to little more than glorified rubber-stampers, they’ll only be able to disagree with outrageously unreasonable requests. A huge number of democratic countries require judicial warrants for surveillance – including all the other countries involved in the Five Eyes Alliance; USA, Australia, Canada and New Zealand.
2. Respect our data
No new blanket powers forcing communications companies to store more – and more revealing types – of our data.
The Independent Reviewer of Terrorism, David Anderson, has warned that the case for a host of bulk surveillance powers has not been made. The USA and a number of other European and Commonwealth countries do not compel service providers to retain their customers’ weblogs for inspection by law enforcement, and continuing down this road will place Britain in the company of authoritarian regimes across the world.
Additionally, the track record of internet companies to keep that data safe doesn’t fill us with confidence (for example see the recent hacking of TalkTalk - four people so far have been arrested including some under the age of 16).
3. Targeted surveillance - for a reason
Surveillance should only be conducted for a number of tightly defined reasons i.e. investigating serious crime and preventing loss of life. Strong legal protection should be provided for privileged and confidential material.
There is no convincing evidence that mass surveillance is vital to save lives. Rather, the amount of data currently being collected overwhelms the security services, making us less safe. Surveillance should be conducted for a narrow range of tightly defined purposes i.e. in the targeted investigation of serious crime and other legitimate objectives such as preventing risk to life. However it is currently being used for vague and non-crime related purposes (as recognised in the High Court judgment in Liberty’s challenge to DRIPA with MPs David Davis and Tom Watson).
A targeted approach to surveillance - requests and warrants must target individuals on the basis of suspicion in criminal activity.
Liberty is calling for a targeted, as opposed to mass or 'thematic', approach to surveillance. As revealed by Edward Snowden, the Agencies have claimed powers to intercept and hack entire telecommunications systems meaning billions of innocent communications are routinely intercepted and processed.
The Draft Bill seeks to put these powers on the statute book and expand them - new provisions allow the Agencies to acquire 'bulk personal datasets' and communications on millions of innocent people.
Retention of communications data and surveillance warrants should instead target individuals on the basis of suspicion of involvement in serious crime.
Liberty is currently challenging the present approach of mass, speculative, suspicion-less interception of “external warrants” at the Court of Human Rights.
Strong legal protection for privileged and confidential material
Legislative safeguards providing additional protection for legally privileged communications, journalistic sources and parliamentarians’ correspondence should be enshrined in primary legislation.
4. Transparency and Redress
All surveillance powers should be publicly disclosed and explicit safeguards set out in the IP Bill. There must be improved redress and increased transparency for people who have been spied on.
The IP Bill has introduced an element of transparency by identifying which surveillance powers the Government is using. However, the Bill is light on detail, and fails to provide necessary safeguards to protect the powers from abuse. In fact, the Bill would introduce new imprisonable offences for whistleblowers, preventing injustices becoming public.
Redress mechanisms must also be improved
A person who was the subject of intrusive and targeted surveillance methods must be told when they are no longer under suspicion (unless there is a good reason for maintaining secrecy).
Further, the Investigatory Powers Tribunal (IPT) – which hears legal challenges against the use of surveillance – must be reformed and made more transparent. Currently it isn’t required to hold oral hearings and if it finds against a complainant it can’t give its reasons for doing so. It cannot make a formal declaration, a “declaration of incompatibility”, that legislation violates the Human Rights Act.
The IPT must become more transparent and open to the public. Whilst the IPT remains so shrouded in secrecy, it is impossible to hold the security services to account for human rights abuses.
5. Use of intercept evidence in court
Intercepted communications should be admissible in criminal trials.
The bar on the admissibility of intercept evidence, if properly obtained via a judicial warrant, in criminal proceedings should be lifted. Why is this vital evidence not used to bring perpetrators to justice?
6. Fair and open international data sharing laws
The arrangements for intelligence sharing of surveillance data between the UK and other countries must be set out in law and available to the public.
Transparent and proportionate arrangements for the sharing of surveillance data between intelligence agencies should be agreed between the UK and foreign States, made publicly available and incorporated into law.
Mutual Legal Assistance Treaties (MLAT) – law enforcement tools governing the exchange of information between countries – should be improved and replace attempts to place extraterritorial obligations on foreign tech firms (as proposed in the Draft Investigatory Powers Bill).
7. Protect our encryption standards
Safeguard our country’s security by protecting - not undermining - encryption standards.
Encryption is vital to the security of our online communications. If we weaken standards to allow Government to get its hands on more of our personal communications, that information is vulnerable to use and abuse by the bad guys too. Do we really want our iMessage communications to be less secure than those of people using the service in other countries?
8. Recognition of the unique threat mass hacking poses to our security
Hacking is a grave privacy intrusion - much more intrusive than “traditional” forms of state surveillance, including interception, and its capacity to undermine device, network and internet security can’t be overstated.
It carries unlimited and untested potential for Government to act against the security and economic interests of its own citizens, whether consciously or otherwise.
The Government's draft legislation would allow mass hacking of devices, affecting potentially millions of innocent users' devices, undermining the safety of us all. Hacking should only be used in extremis as a last resort, and warrants should always specify named suspects or premises.
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