Obscure surveillance laws in U.K. “corrode democracy itself” says review 

June 18, London: Today’s release of independent reviewer David Anderson QC’s report, commissioned for the Government, is the most rigorous public review of surveillance in the UK agencies ever conducted. The thrust of the report is a resounding call for wholesale reform of Britain’s surveillance legislation, which Mr Anderson calls “impenetrable.” “Obsure laws,” Anderson remarks, “corrode democracy itself, because neither the public to whom they apply, nor even the legislators who debate and amend them, fully understand what they mean.” [13.31] The report concludes that “This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.” [E.S. 35]

Privacy International welcomes Mr Anderson’s detailed analysis of surveillance powers and practices in Britain, and the frank manner in which he confronts the truths revealed by the Snowden documents about surveillance overreach – a first for any official report or review in the UK since the revelations began two years ago. While we are concerned about some of the recommendations, in particular its failure to strongly criticise mass surveillance, we welcome many of the recommendations in the report, particularly recommendations that:

* The progression of any new surveillance powers – including the Communications Data Bill – be halted. The report says 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, Mr 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.” [14.57] Mr 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”.

* To replace extraterritoriality provisions of DRIPA that are an “unsatisfactory substitute”, 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 Mr 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 it’s 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 notable absence from the report is any recommendation that the “mass surveillance provisions” of existing surveillance laws be rolled back in favour of targeted interception powers. Privacy International believes that Mr Anderson was somewhat hamstrung in this respect, being unable to pronounce on the proportionality of bulk interception measures while such questions are currently being considered by court in the UK and Europe [1.12] Mr Anderson notes that, while bulk surveillance techniques can be useful, “it does not of course follow that it is necessarily proportionate, which is for the courts to decide.” [7.26]

Also absent from the report’s recommendations, and despite strong statements about encryption throughout the report, is any suggestion of enhanced powers to regulate encryption standards or usage, an omission that will allay the fears of many.

Eric King, Deputy Director of Privacy International said:

“We applaud David Anderson’s report as we applauded the Intelligence and Security Committee (ISC) report from just a few months ago. The ISC called our surveillance laws “unnecessarily complicated.” David Anderson calls them “undemocratic.” The message cannot be clearer: wholesale reform of Britain’s surveillance laws is needed. Not some tweaks, or a change here and there, but full root and branch reform. Our system of governance and oversight hasn’t worked. It took Edward Snowden, a whistleblower from another country, to shine a light on what was being done in our name, and get us to where we are today.

We now need to start again, debate and discuss every aspect of the vast and incredibly intrusive powers we provide the police and intelligence agencies. David Anderson’s strong recommendations for improvement are the first step towards reform, and now the burden is on the Government, parliament and civil society to ensure that reforms go further and ensure that once and for all, our police and intelligence agencies are brought under the rule of law.”

The Oslo Times

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