UK: Report of the investigatory powers review

A key report reviewing the UK’s legal framework governing surveillance commissioned by the Government and written by David Anderson QC, was released on 11 June 2015. The thrust of the report is a resounding call for wholesale reform of Britain’s surveillance legislation with it concluding that

“This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.”

Anderson addresses a range of issues and makes more than 120 recommendations for legislative change. Many of these recommendations align with the demands made by Privacy International, EDRi members Open Rights Group (ORG) and Article 19 and their coalition partners in the Don’t Spy On Us campaign: making judges, not ministers, in charge of authorising surveillance, for example, and improving oversight and redress mechanisms.

However, Anderson’s report could have gone further. It is disappointing that he did not see fit to condemn the very idea of bulk interception (leaving that to the courts to decide). His report does not recommend providing equal protections to people no matter where they are in the world, nor does it remedy problems with national laws that claim extraterritorial reach. Key recommendations include:

• The progression of any new surveillance powers – including the Communications Data Bill – should be halted. The report states that no compelling operational case has been made for previous government proposals such as the Snoopers’ Charter, and reiterates that any new proposals should be assessed with a “strict evidence-based approach” as well as a rigorous assessment of “lawfulness, likely effectiveness, intrusiveness and cost.” There can be “no question of progressing proposals” until such conditions are satisfied.
• Judges, not ministers, should authorise warrants for the interception of communications. Rejecting Foreign Office recommendations that judicial authorisation might “disadvantage the UK” because judges would refuse applications for surveillance that Ministers would otherwise green light, Anderson retorts that “were it the case that Ministers might be tempted to issue warrants in circumstances where it is illegal to do so, that would seem to me a strong argument in favour of judicial authorisation.” ] Anderson’s proposals would add an additional and much-needed layer of accountability to Britain’s surveillance system, requiring police and intelligence agencies to have their application for interception scrutinised and signed of by a “judicial commissioner”.
• Extraterritoriality provisions of the Data Retention and Investigatory Powers Act (DRIPA) that are an “unsatisfactory substitute” should be replaced. The long term goal must be a “multilateral arrangement” between states regulating access to information held across borders. A further analysis of cross-border information sharing was to have been provided in a separate report authored by Sir Nigel Sheinwald, but was recently shelved by the Government.
• Intelligence sharing should be properly regulated and prescribed by law. Acknowledging there is no statute or code of practice governing how exchange of information between agencies should take place, it is recommended that new legislation defines as clearly as possible procedures for the receipt and exchange of intelligence including “an express prohibition on the use of foreign partners in any way that results in the circumvention of national legal standards.”
• The Government must expressly avow to the public and explicitly regulate intrusive surveillance capabilities such as hacking and computer network exploitation, rather than maintaining a position of “neither confirm nor deny”. This extends, says Anderson, to techniques such as bulk collection and the use of bulk personal datasets, which was challenged this week by Privacy International in a claim before the Investigatory Powers Tribunal.
• An Independent Surveillance and Intelligence Commission should be established, with the authority to notify individuals if their data has been subject to error and their right to take their case to the Investigatory Powers Tribunal.
• The Investigatory Powers Tribunal should have its powers extended to enable it to make declarations of incompatibility with the Human Rights Act; there should also be a right of appeal on points of law from the Tribunal’s decisions.

A question of trust – Report of the investigatory powers review (11.06.2015)
https://terrorismlegislationreviewer.independent.gov.uk/a-question-of-trust-report-of-the-investigatory-powers-review/

Privacy International briefing on A Question of Trust: Report of the Investigatory Powers Review
https://privacyinternational.org/?q=node/596

Don’t spy on us
https://www.dontspyonus.org.uk/org

(Contribution by Eric King, Privacy International)