Yet another parliamentary report has criticised Home Secretary Theresa May’s draft Investigatory Powers Bill, warning that the government needs to provide greater justification for the proposed bulk data collection powers and its plans to make ISPs collect “internet connection records” (ICRs) on behalf of the authorities.
The Joint Committee on the Draft Investigatory Powers Bill – a committee of MPs and Lords examining the draft legislation – warned that the law might be going too far.
“It is unarguable that citizens’ private lives and inner thoughts are now captured in communications technology to a far greater extent than previously. Intrusion by the state into this private sphere must only be done reluctantly and on grounds of necessity,” it warned.
However, it acknowledged that, “resolving the tension between privacy and effective law enforcement in this area is no easy task”.
On the subject of ICRs, the report was broadly in favour – convinced by the arguments of the security services and other law enforcement agencies. However, it also highlighted warnings from the industry over the cost and practicality of recording and storing data about customers’ web usage.
“We are satisfied that the potential value of ICRs could outweigh the intrusiveness involved in collecting and using them. But we also heard strong concerns, in particular from some of the providers themselves, about the lack of clarity over what form the ICRs would take and about the cost and feasibility of creating and storing them,” warned the report.
Some smaller ISPs could be driven out of business due to the added costs that the government’s proposals on ICR could end up heaping on them.
“The Home Office has further work to do before parliament can be confident that the scheme has been adequately thought through,” warned the committee.
However, the committee seemed to be willing the government to simply make a better case for all the powers that it is seeking, especially its proposed powers of bulk collection of internet data.
“Other concerns were over the provisions in the Bill for bulk powers to intercept, to acquire communications data and to interfere with equipment. These powers are not new, but have been avowed for the first time in legislation. The public debate over these powers is a healthy one, and the Home Office should ensure that it and the security and intelligence agencies are willing to make their case strongly in the months ahead.”
However, privacy groups were generally pleased with the report’s findings. “This is the third report that criticises the Investigatory Powers Bill, showing a troubling lack of clarity and evidence for the powers that are being demanded,” said Open Rights Group executive director Jim Killock.
He continued: “Theresa May can no longer claim that this is a ‘clear and comprehensible’ piece of legislation. The Home Office needs to address the recommendations of all three reports and undertake a major rewrite of the Bill before it is laid before parliament.”
Graham Smith, a partner at international law firm Bird & Bird, who has already given evidence in parliament, is also pleased to see these failings being raised.
“The message from all three committees is that so far the draft Bill has fallen short on all these counts. This is not a strong foundation on which to build the trust in the investigatory powers system that [independent reviewer of terrorism legislation] David Anderson said was essential,” he said.
He continued: “Another lesson from the committee reports is that it is not enough to have safeguards and oversight, important as those are. The powers themselves must be carefully limited, fully aligned with technical considerations and strictly justified.
“Codes of practice will be helpful and are favoured by the joint committee, but they are no substitute for intelligible and appropriately drawn legislation.”