Saturday, 7 November 2015

Draft Investigatory Powers Bill (2) - Some of the early reaction

The Draft Investigatory Powers Bill has attracted a considerable amount of initial reaction.  For details of the Bill and links to the various reports that have influenced the Bill's content see Draft Investigatory Powers Bill (1).

The Homes Secretary (Rt. Hon. Theresa May MP) in her statement to the House of Commons said that powers under the Telecommunications Act 1984 section 94 (Directions in the interests of national security etc) had been used to obtain bulk data.  This fact was actually revealed in the Intelligence and Security Committee Report of March 2015 - Privacy and Security: A modern and transparent legal framework.  The Committee accepted that this use of the power was acceptable BUT said that the arrangements lacked clarity and transparency and "must be reformed" - (Page 100).  The former Deputy Prime Minister (Nick Clegg MP) has indicated that only a "tiny handful" of Ministers knew of the power being used - The Guardian 5th November.

The Royal United Services Institute
issued a response to publication of the Bill.  RUSI welcomes the report and has also published a 12 page Briefing Paper to assist with understanding of the Bill.  The briefing paper, by Calum Jeffray, is well worth reading in full.

JUSTICE has expressed a number of concerns and promises a full response to the Bill as well as giving evidence to Parliament.  They have issued a 32 page update (Freedom from suspicion) to their 2011 report (of 164 pages) - Freedom from suspicion: Building a surveillance framework for a digital age
The UK Human Rights Blog was quick off the mark with a post by Cian C. Murphy and Natasha Simonsen - Interception,Authorisation and Redress in the draft Investigatory Powers Bill.   This considers three aspects of the Bill - (1) the creation of a new oversight body; (2) the authorisation regime for interception of communications and (3) reforms ("all too modest") to the Investigatory Powers Tribunal.  More posts will follow dealing with other aspects of the Bill.

The former Director of Public Prosecutions (Sir Keir Starmer QC MP) has broadly welcomed the draft Bill - The Guardian 5th November .  Starmer said that the Bill is a step in the right direction but added - "Clearly the draft investigatory powers bill now needs to be closely scrutinised before it begins its journey through both houses of parliament. Hard questions should focus on the test to be applied by judges before formally approving an intercept warrant; real judicial scrutiny is a safeguard, a judicial rubber stamp is not. And the detailed provisions for the retention and use of internet-connection records, which considerably extend the surveillance reach of the state, need careful attention: what are the limits on retention, and how closely defined and controlled will access to this material really be?"

Joshua Rozenberg - The Guardian 4th November - expressed concerns that the internet surveillance powers risk undermining the judiciary.  Rozenberg wrote - " ... the judicial commissioner must apply the same principles as would be applied by a court on an application for judicial review”. That suggests the commissioner would look more closely at the decision-making process than at the decision itself. 

Judges are used to being called in by ministers to conduct inquiries when public things have gone wrong. This is the first example of a judge being recruited by the government to reassure us that private things are being done right.

Judicial oversight will go down well with European courts and foreign governments. But it is essential to ensure that it is not abused by commissioners being misled or kept in the dark. To do so would damage not only the judicial commissioners, who will be working for the government – it would also damage public confidence in the judiciary as a whole."

An article in The Independent 4th November looks at how the Bill "will affect normal people" (whoever they are)!  They point out that the authorities will be able to access everything your phone or computer does with the information stored for a year.Internet companies will be required to "help spies hack your phone" and conversations with your MP can be "listened in on" - (their phrase).  As far as encryption is concerned they state - "The Government had previously given indications that it would look to ban end-to-end encryption, a technology that allows communications to pass safely over the internet. But it claims to have dropped that proposal."

Another Guardian article claims that the Bill threatens investigative journalism.  The free speech provision of the European convention on human rights, Article 10, gives journalists a strong right to protect their confidential sources of information.  Yet the draft investigatory powers bill, published on Wednesday as a replacement for the outdated Regulation of Investigatory Powers Act, fails to guarantee this fundamental human right.

The Complicity Blog carried a post by Zoe Connell which has identified a number of "ifs and buts" within the bill.  This is a useful read - First thoughts on the draft Investigatory Powers Bill.
From the material to which I have linked it appears that the Bill has been broadly welcomed and that there is a strong case for the powers.  As usual, any devils will be lurking in the detail.

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