Closer scrutiny of the draft Investigatory Powers Bill, published at 12.30pm today, has highlighted that government claims that the extensive new surveillance powers intended for Britain’s security services won’t enjoy the close judicial oversight claimed by home secretary Theresa May.
The Investigatory Powers Bill will require internet service providers to maintain records of their customers’ browsing habits for at least a year, and require them to turn them over to a range of public bodies on demand. It also provides a range of other surveillance powers related to internet communications.
“It amounts to a dramatic alteration in the powers already available not just to the intelligence services, but to police, tax inspectors, and officials and regulators in almost every department of state. It replaces several pieces of complex and technical legislation,” claimed privacy group No2ID.
It pointed out that Parliament will probably be rushed into passing the Bill as the Data Retention and Investigatory Powers Act 2014 is due to expire at the end of 2016.
Critics also pointed out a section in the proposed Bill that effectively compels judges to approve warrants in almost all circumstances. It states: “In exercising functions under this Act, a Judicial Commissioner must not act in a way which is contrary to the public interest or prejudicial to:
(a) national security;(b) the prevention or detection of serious crime; or(c) the economic well-being of the United Kingdom.”
But the new Bill was broadly welcomed by the opposition Labour Party when it was presented to Parliament today – indicating that it will be passed easily, regardless of opposition outside of Parliament – with only backbench Conservative MP David Davis, who resigned his seat in 2008 to fight a by-election on the issue of identity cards, providing a more critical view.
He took issue, in particular, with the Bill’s claim to provide a double-lock procedure for issuing warrants under the proposals. The warrants, it is claimed, will have to be approved by both the Secretary of State first, and then a judge – but this is not applicable if the request is labelled “urgent” and, in any case, the judicial oversight is minimal, according to David Davis MP
“I draw everybody’s attention to section 19(2), which tells the judicial commissioners they have to make decisions based on judicial review principles, not on the basis of the evidence. In other words, the Home Secretary would have to behave in an extraordinary manner not to get his or her warrant approved. This is not the judge checking the evidence, it is the judge checking that the correct procedure has been followed,” said Davis.
David Allen Green, law and policy commentator at the Financial Times newspaper, who also tweets as @DavidAllenGreen, warned: “There’s lots of clever sleight of hand. For example, ‘judicial’ commissioners with no real judicial powers, and so on.”
He continued: “The exact roles and limits of “judicial” authorisation/approval are not immediately clear on reading the Bill and materials.”
Indeed, other commentators have noted that it does not amount to judicial authorisation, but merely supervision of the process.
Human rights group Liberty warned: “The draft Investigatory Powers Bill contains sweeping new powers for public bodies to track and hack British people’s communications – while failing to include the most basic privacy safeguards.”
It added that the powers that the home secretary Theresa May is seeking exceed anything in place in any other democracy. “The Bill proposes a new power for blanket retention of ‘internet connection records’, covering everything from opening apps and uploading photos to iCloud to visiting websites.
“The information this can reveal is highly intrusive and, for this reason, suspicion-less compulsory retention of internet connections is not allowed in any other EU or Commonwealth countries, nor comparable democracies like the US and Canada. Australia recently prohibited it in law.”
It concluded that the proposed Bill does little more than put all the mass surveillance powers revealed by whistleblower Edward Snowden onto a formal legal footing. Indeed, Edward Snowden tweeted: “By my read, #SnoopersCharter legitimises mass surveillance. It is the most intrusive and least accountable surveillance regime in the West.”
Meanwhile, Adrian Kennard, the co-founder of internet service provider Andrews & Arnold, claimed that the plans may even be unworkable – particularly for a small ISP such as his.
In a personal blog post, he described the mass surveillance plans as “crazy” and added: “The issues include (a) invasion of privacy (b) scope for abuse and thin end of wedge (c) cost and work for ISPs (d) risk of data theft (e) pointlessness as serious criminals will use TOR, etc. Even emotive arguments over lost children do not work as all you find is that they were on Facebook or using WhatsApp, same as every day,” he wrote.