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Government Transparency and the Snooper’s Charter in the House of Lords

On 5 and 7 September, the House of Lords concluded into the committee stage of the Investigatory Powers Bill with discussions lasting well into the night and an extension to this exchange slated for 7 September.  To items are germane to what is taking place this week: the second reading of the bill from July and David Anderson’s Review of Bulk Powers which was just published on 7 August.

During the second reading of the bill in July, the government’s approach towards encryption was addressed with Earl Howe, Minister of State for Defence and Deputy Leader in the House of Lords, maintaining that, “Law enforcement and the intelligence agencies must retain the ability to require telecommunications operators to remove encryption in limited circumstances.”  On the other side of this debate, Lord Paddick and Baroness Hamwee requested the removal of the Internet Connection Records (ICRs), arguing they fail to meet the basic test of necessity also making excellent points to justify this position stating that Internet connection records do not do what the Government claim they do: Internet connection records only provide the details of which communications platforms have been used, most of which are based in the United States.  Lord Paddick also referred to earlier statements made by MI5, MI6 and GCHQ which demonstrate that these agencies do not have explicit necessity for ICRs because they already possess other means of securing the data they might need.  The unique position of the UK government insisting upon ICRs was also questioned by Lord Oates who underscored that none of the Five Eyes countries, or any western democracy, collects ICRs.

The “Report of the Bulk Powers Review” by David Anderson supports the operational case for the current practices of the agencies.  The review makes only one recommendation for reform: the creation of a new Technical Advisory Panel of independent security cleared experts to support the Investigatory Powers Commissioner.

As it stands the Government  maintains that ICRs are necessary to combat crime even though it can offer no compelling evidence for this contention. Under the agreed amendments on ICRs, they can only be obtained by UK authorities if they are to be used to help prevent or detect crime. Lord Keen of Elie added that ICRs would only “be able to be acquired only for offences that are sufficiently serious that an offender can be sentenced to at least six months’ imprisonment.“ Nonetheless, the amendments were still criticised because of their vague phrasing.
Last week, however, Lord Paddick switched gears slightly and moved towards a critique of the transparency of the process that the Investigatory Powers Bill would effect upon citizens, their privacy, and human rights law:

Citizens are entitled to the protection of the law but, as the Bill is drafted, it is impossible to challenge the Government and the use of state instruments of interference in people’s private lives if they have no idea that they have been the subject of surveillance. To quote the briefing provided by Liberty, if a person’s Article 8 rights—to a private and family life—and other Human Rights Act rights have been engaged and potentially violated,“in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach”.

What is clear in the discussions during the committee stage is that this bill presents ambiguous language which can, left in the hands of the intelligence services or the police, be applied differently depending on who the subject of investigation might be.

Still, there was great contention with two of the amendments which address bulk acquisition warrants and broad nature of this sort of warrant:

Amendments 210ZF and 204B would add to the current list of reasons for which it may be necessary to disclose or copy communications data obtained under a bulk acquisition warrant. Such disclosure and copying must, of course, be kept to the minimum necessary for a limited number of purposes. The amendment adds, in the case of internet connection records, a requirement of necessity in respect of an individual having committed an offence.

Lord Paddick’s response was to continue to contest vehemently one of the amendments stating, “As far as Amendment 204B and the potential for bulk acquisition of internet connection records are concerned, it is, to us, a rather alarming prospect which I do not think has yet been raised in the public consciousness. It is absolutely certain that we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.”

In response, the Minister of State, Ministry of Defence, Earl Howe expressed his disagreement with Lord Paddick stating that such notifications would necessarily foil terrorist investigations, employing the word terrorist repeatedly, “It is not innocent, ordinary, law-abiding people who would be notified, because the agencies do not seek or obtain warrants against such people; it is suspected criminals and terrorist suspects. They would then change their behaviour, and we would have less chance of bringing them to justice.”  Lord Beith’s response to Earl Howe, however, put to right the assertion that to be investigated signifies that the individual is guilty of anything since, “[i]f an investigation has not been successful in identifying who is involved in a radicalisation ring or in planning a kidnapping, that may well be because some of those people genuinely were not involved in any way, and some other factor—a mistaken number, for example—had drawn them into the net of the inquiry.

The focus of the talks in committee are directed at the issues of fallibility of investigations and the responsibility to public notification, the misuse of the bill’s tenants to uncover private data, and the importance of safeguards to protect privacy.  The next step for this bill is the Reports stage in the House of Lords.

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Julian Vigo is a scholar, film-maker and human rights consultant. Her latest book is Earthquake in Haiti: The Pornography of Poverty and the Politics of Development (2015). She can be reached at: julian.vigo@gmail.com

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