“The UK has just legalised the most extreme surveillance in the history of western democracy. It goes farther than many autocracies” Edward Snowden tweeted on the 17th of November. He was referring to the Investigatory Powers Bill (IPB) that – following agreement by both Houses – received Royal Assent on the 29th of November.
The Bill is now an Act of Parliament – therefore, it’s law. A law on the control of communications that was led to the final approval phase without too much noise and among the docility of the parliamentary opposition. Apple, Google and Twitter, among others, opposed the legislative plan, which according to Twitter could have implications for its customers, for the citizens, and for the future of the worldwide technology industry.
What exactly created such a stir in the press?
The Investigatory Powers Act is a Bill which makes provisions about the interception of communications, equipment interference and the acquisition and retention of communications data. Its origin goes back to 2014 when the UK government asked the Independent Reviewer of Terrorism Legislation to review the operation and regulation of investigatory powers available to law enforcement and intelligence agencies, in particular the interception of communications and communications data. This report was published in June 2015 and recommended a new law to clarify these powers. On the 16th of November 2016 the House of Lords approved the final version of the Bill.
What are the new controversial powers?
The Act introduced new powers for UK intelligence agencies and law enforcement, and restated existing ones for targeted interception of communications, bulk collection of communications data, and bulk interception of communications.
An Investigatory Powers Commission (IPC) is being established to oversee the use of all investigatory powers, alongside the oversight provided by the Intelligence and Security Committee of Parliament and the Investigatory Powers Tribunal. The IPC consists of a number of serving or former senior judges. A judge serving on the IPC will review warrants for accessing the content of communications and equipment interference authorised by a Secretary of State before they come into force.
Clearly there are many consequences for all British companies that are identifiable as communication service providers (CSPs). They will be obliged to retain UK internet users’ “Internet connection records” – which websites were visited but not the particular pages and not the full browsing history – for one year. The Act also places a legal obligation on CSPs to assist with targeted interception of data and communications and equipment interferences in relation to an investigation, and to have the ability to remove any possible encryption applied.
That is because – according to this new law – the police and intelligence officers will be allowed to see the Internet connection records, as part of a targeted and filtered investigation, without a warrant. In addition, police and intelligence agencies will be permitted to carry out targeted equipment interference, that is, hacking into computers or devices to access their data for national security matters related to foreign investigations.
However, on a positive note, the legislation for the first time clearly defines the monitoring powers at disposal of the secret services and the police. Among other things, the Internet and telephone providers will be required to record and store the mobile and web activities of their customers for one year. The agencies will be able to access the metadata (i.e. the who, what, when and where of communications), but not their content, without a warrant. The warrant will be used instead to access the agents to journalistic sources. The IPB put the Wilson Doctrine – that restricts the police and intelligence services from tapping the telephones of Members of the House of Commons and House of Lords – on a statutory footing for the first time as well as safeguards for other sensitive professions such as journalists, lawyers and doctors. It also established a new criminal offence for unlawfully accessing internet data and created a new criminal offence for a CSP or someone who works for a CSP to reveal that data has been requested.
Nevertheless, these minor mitigations to the invasive approach of the law do not seem to have an impact of sorts on the majority of the public opinion that renamed the IPB into “Snooper’s Charter”.
The IPB grants the possibility of entering, by law, backdoor in encrypted systems, circumstances on which the web giants have always warned for the negative effects it can have to end in the hands of hackers.
Even Joseph Cannataci, United Nations Special Rapporteur on the right to privacy, during a keynote speech to the Internet Governance Forum in Brazil, attacked the project envisioned by the British government calling it “scary”. Cannataci referred to George Orwell’s “1984” to address the bill, and said that the government has orchestrated a media campaign to minimise the perception that the public may have of the importance of new legislation. “At least Winston [the main character in Orwell’s 1984] was able to go out in the countryside and go under a tree and expect there wouldn’t be any screen, as it was called. Whereas today there are many parts of the English countryside where there are more cameras than George Orwell could ever have imagined.”
Basically, the Snooper’s Charter aims to expand the possibilities of intelligence agencies to carry out mass surveillance activities, otherwise called collection of massive data: all the information collection practices of individuals followed by GCHQ, MI5 and MI6 that just two months ago had been declared illegal by a special tribunal are now legalised. It legalises security agencies hacking operations of computers and mobile phones and allows them access to masses of personal data stored, even if the person concerned is not suspected of any wrongdoing.
“We have created the tools for repression,” said baron Paul Strasburger, one of the representatives of the Liberal Democrats in the Lords and among the main critics of the project. Jim Killock, the Director of the Open Rights Group, said: “The UK now has a surveillance law that is more suited to a dictatorship than a democracy. The state has unprecedented powers to monitor and analyse the communications of citizens, regardless of whether they are suspected of any criminal activity” and has raised the possibility that countries led by authoritarian regimes will use the law as an example. The British surveillance law is reasonably comparable to the ones established in Russia and China.
The prime minister Theresa May presented the project last November when she was Interior Minister. She declared it was necessary to deal with “the rise of emerging threats represented by the progress of technology,” arguing that nothing new has been introduced by law.
The discussion could now be taken to another level. The new law could trigger a legal and political conflict between the United Kingdom and the EU on privacy. Any future EU-UK agreement after Brexit will also depend on whether the regulators in Brussels deem appropriate respect for the privacy of European citizens on the basis of UK law. Based on the IPB, that does not look easy. If an agreement for the transfer of data between the two blocks will not be reached, British companies will face a hard time trying to trade with European companies and vice versa. Especially, since trade exchanges between London and Europe are mostly linked to services, such as interbank, where different sensitive data are to be found, Europe will surely ask for safeguards that won’t let the data end up in the hands of the British government.
This scenario would certainly be quite frightening.
Privacy is universally recognised as a fundamental human right, such as to put an individual in a position to decide whom to introduce to their personal information: this freedom should be taught and treated as a vital part of education. Even in the fight against terrorism, governments should keep in mind that depriving people (and businesses) of fundamental freedom can not be the right solution and only if not relentlessly followed by the registration of all traces left, the construction of identity of every one can be free.
By Deborah Civico, Legal writer.
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