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In his book, State of Exception (2005), Giorgio Agamben traces the notion of “state of exception” (Ausnahmezustand) back to Roman instances of justitium and auctoritas. He then recasts Carl Schmitt’s definition of sovereignty as the power to create the legal exception whereby the increase of power by the state is generally undertaken in times of ostensible crisis. It is within the state of emergency where Agamben locates the state of exception whereby constitutional rights can be diminished or entirely erased and in the process of realising this exceptional state authority, leads to the supersession and rejection of certain rights granted by this new extension of governmental power. And so it seems that this state of exception has been designated in the United Kingdom where now basic tenets of privacy have been rescinded under the guise of counter-terrorism in the age of cyber data.
Effective from 30 December, 2016, the Investigatory Powers Act (IPA), more commonly known as the “Snoopers’ Charter,” has been in full force and this means the end of privacy for those living in the United Kingdom. Now the British state has realised a totalitarian-style surveillance apparatus which is arguably the most intrusive system found within any democracy throughout history. Today the British state had the power to arbitrarily monitor, intercept, record, and even hack the communications and Internet use of the entire population. While the government seems far more invested in handling complaints for PPI claims (for payment protection insurance mis-sold by banks) than looking into its own oversight of privacy laws, the IPA is facing some serious legal challenges this year.
Let’s jump back to 2013 when Edward Snowden revealed the hundreds of mass surveillance programmes under the United States’ NSA (National Security Agency) which, initially assumed to be an anomaly, is now understood to be part of a larger state design that extended far outside the USA. When Parliament finally addressed the industrial-scale spying on behalf of the British government, public and political debates took place in an attempt to curtail these newly cut state powers. Sadly there was little to no political opposition to these measures and instead of curtailing the spying efforts of the government, the spying powers were actually extended and exceeded even those of which Snowden spoke from his knowledge of the NSA.
Today the IPA means that Internet service providers must now store details of everything we do online for twelve months and render it accessible to dozens of public bodies. And this data includes virtually everything from browsing records to data on private citizens, from search engine activity to search engine optimisation to every phone call to text message and geographical location we have held with our mobile. Additionally this law requires that technology companies be obliged to hand over the data that they have about people to intelligence agencies and can force tech companies like Apple, as was attempted in the United States, to remove encryption, ultimately weakening the security of their own products in total secrecy. So where encryption was supposed to protect the data of the individual user, the IPA not only makes mass surveillance for accessible, but now there is an increased risk of criminal hacking for the private citizen. All this information is now readily available for any number of government bodies from the Department for Work and Pensions to the NHS (National Health Service) to the Gambling Commission. What then, do these agencies have to do with protecting the country from “terrorists”?
And some of the most invasive powers of this bill have not yet gone into force. For instance, this charter implicates the collection of Internet connection records, which has been postponed until the government and Internet companies have worked out how they can collect this information safely. In its defence, the UK government has argued that these powers are vital to allow intelligence agencies and the police to stop modern-day crime and to help bring about prosecutions of those involved. But there is no evidence to suggest that such spying measures can actually do either. In fact, the government has yet to demonstrate how possessing such indiscriminate powers are lawful or necessary in order to prevent or detect crime.
The human rights and civil liberties campaign group, Liberty UK, has recently launched a legal challenge to the “sweeping state spying powers” in the newly enacted Investigatory Powers Act. Additionally, post-referendum, there is a conflict between this act and the recent landmark ruling from the EU Court of Justice (CJEU) which, in December, deemed that the indiscriminate collection of emails is illegal as are core parts of the Snoopers’ Charter. Liberty has crowdfunded its challenge of the IPA in court for which they have thus far raised over £53,000.
The critiques of this bill are widespread. Martha Spurrier, Director of Liberty, states: “Last year, this Government exploited fear and distraction to quietly create the most extreme surveillance regime of any democracy in history. Hundreds of thousands of people have since called for this Act’s repeal because they see it for what it is–an unprecedented, unjustified assault on our freedom.” And Bella Sankey, Policy Director at Amnesty International, states: “The Home Secretary is right that the Government has a duty to protect us, but these measures won’t do the job… Instead they open every detail of every citizen’s online life up to state eyes, drowning the authorities in data and putting innocent people’s personal information at massive risk.” And Amnesty has gone on record to call this act “Orwellian.”
The four key points of Liberty’s lawsuit are:
+ Bulk hacking: this allows the state access to electronic devices regardless of whether or not the owners are suspected of a crime or not.
+ Bulk interception: this would allow the government to access texts, online messages, emails and to listen in on calls, again without the requirement of suspicion of criminal activity.
+ Bulk acquisition of communications data and Internet history: this would force communications companies and service providers (ISPs) to hand over records of all electronic activity to include web browsing history for storage, data-mining, and profiling.
+ “Bulk personal datasets”: this allows agencies to acquire and link databases held by either the public or private sectors which detail religion, ethnic origin, sexuality, health problems, political tendencies.
It is important to note here that the predecessor to the IPA was the 2014 Data Retention and Investigatory Powers Act (DRIPA) which expired at the end of 2016. DRIPA was also challenged in 2015 in the High Court by two MPs, Labour’s Tom Watson and the Conservative David Davis backed by Liberty. The claim is that the government was breaking the law by indiscriminately collecting and accessing the nation’s Internet activity and phone records. The High Court upheld the challenge, finding sections 1 and 2 of the Act to be unlawful with the court issuing an order that both these sections be suspended until 31 March 2016, setting a deadline for the government to come up with alternative legislation which would be compatible with EU law. The alternative legislation is, in effect, the IPA.
When Edward Snowden revealed to the world the scale of mass surveillance he warned: “And because of that a new leader will be elected, they’ll find the switch, say that ‘Because of the crisis, because of the dangers we face in the world, some new and unpredicted threat, we need more authority, we need more power.’ And there will be nothing the people can do at that point to oppose it. And it will be turnkey tyranny.” That what Snowden uncovered of the NSA’s activities is dwarfed by the current actions in the UK should be enough to alarm even the most casual of observers.
While technology can be used for nefarious purposes, we need to protect our civil liberties and our privacy from baseless surveillance which ultimately poses a threat to the freedom of the press, the rights of the press, and the freedom of individual thought and the flourishing of opinion.