There’s trouble ahead and we’ve only just begun:
In November 2015 the first draft of the Investigatory Powers Bill was presented to parliament by the Secretary of State. In the brief time that it has been in circulation, the parliamentary scrutiny committee responsible for the reviewing of this bill has received;

  •  A submission to the parliamentary scrutiny committee on the draft investigatory powers bill from the defence industry claims new surveillance laws will have a relatively short shelf life due to the accelerating pace of technology and will need to be revisited “in the not too distant future.”
  • Other evidence published by the scrutiny committee which reveals how tech firms such as Apple, Google, Facebook, Twitter, Yahoo and Microsoft have warned the home secretary of the implications for their industry. Key concerns include the undermining of trust in their technology if encryption is weakened and conflicting laws internationally
  •  A warning from the United Nations human rights watchdog that a lack of oversight and transparency of data collection will “ultimately stifle fundamental freedoms”

Please form your own opinion, after all this is a ‘free country’ we live in but do ensure that you scrutinize the draft bill and read it to its entirety here.

A bill with lofty ambitions:

The bill hopes to achieve a great deal. In the foreword to the draft the secretary of state comments thus;

“The use of investigatory powers is vital to locate missing people, to place a suspect at the scene of a crime or to identify who was in contact with whom. Powers to intercept communications, acquire communications data and interfere with equipment are essential to tackle child sexual exploitation, to dismantle serious crime cartels, take drugs and guns off our streets and prevent terrorist attacks.”

Why the existing law is out of date:
However the bill seems to attempt to enshrine in statute and henceforth make legal, practices which have been going on in increasing amounts anyway. Governmental interferences in electronic messages have been on the increase as digital communication via mobile phones, tablets and laptops via the internet and mobile networks etc have developed. The problem is they developed too quickly for the legislation that was already in place (and certainly those responsible for making new laws). It has to be said that the current legislation available and governing such interception, is not fit for purpose but it would seem that it has not been so for a very long time.

Current laws are being abused:
The law which the government currently uses to get hold of mobile phone communications is Section 94 of the Telecommunications Act 1984 which was obviously enacted way before mobile telephones were even in common use. How can such a wide ranging power derive from such an irrelevant piece of legislation? Well the answer is that successive Home Secretaries have used the excuse of national security combined with the stealth of their own legal scrutinisers to forge a path through the existing legislation and simply get the result they wanted at the time. The section in the Telecommunications Act used to collect your mobile data permits the Home Secretary to give “directions of a general character” which appear to her to be in the interests of national security. So he/she can do what they want, when they want and not have to say why other than it is “in the interests of nation security” Such blatant disregard for the will of parliament and by extension therefore the people is surely no minor issue.

The reach of the new legislation is long:
Make no bones the extent of the interference into your communications as an ordinary citizen of the UK is to say the least far reaching. In a piece written for the register (a web based new organisation offering “independent news, views, opinions and reviews on the latest in the IT industry”), Lord Paul Strasburger describes the activities which the government currently undertakes in the lofty pursuit of preservation of our national security(See the full article here);

“They can hack into your computer, tablet or smartphone to copy all your data, collect your passwords as you key them in and switch on the microphone or camera to spy on you – what they call “Equipment Interference”. They are intercepting and storing enormous quantities of everyone’s internet traffic from fibre optic cables………………The Government is also forcing the phone companies to hand over to MI5 details of everyone’s calls and where the phone is 24/7, storing that data indefinitely and forbidding the companies to reveal what was going on. This information is much more revealing about your lifestyle, your hopes, your concerns, your interests and your friends and lovers than many people realise, especially when combined with other databases that the authorities secretly obtain.”

The legislation in brief (taken from the Guardian Online 4th November 2015)

  • Requires web and phone companies to store records of websites visited by every citizen for 12 months for access by police, security services and other public bodies.
  • Makes explicit in law for the first time security services’ powers for the bulk collection of large volumes of personal communications data.
  • Makes explicit in law for the first time the powers of the security services and police to hack into and bug computers and phones. Places new legal obligation on companies to assist in these operations to bypass encryption.
  • New “double-lock” on ministerial authorisation of intercept warrants with a panel of seven judicial commissioners given power of veto. But exemptions allowed in “urgent cases” of up to five days.
  • Existing system of three oversight commissioners replaced with single investigatory powers commissioner who will be a senior judge.
  • Prime minister to be consulted in all cases involving interception of MPs’ communications. Safeguards on requests for communications data in other “sensitive professions” such as journalists to be written into law.
  • In the case of interception warrants involving confidential information relating to sensitive professions such as journalists, doctors and lawyers, the protections to be used for privileged information have to be spelled out when the minister approves the warrant.
  • Bill includes similar protections in the use of powers to hack or bug the computers and phones of those in sensitive professions as well.
  • Internet and phone companies will be required to maintain “permanent capabilities” to intercept and collect the personal data passing over their networks. They will also be under a wider power to assist the security services and the police in the interests of national security.
  • Enforcement of obligations on overseas web and phone companies, including the US internet giants, in the courts will be limited to interception and targeted communications data requests. Bulk communications data requests, including internet connection records, will not be enforceable.

Who will guard the guards themselves?
This bill is an attempt to legitimise practices that have been employed for years. In that regard I think it is a positive step to bring the extent of this intrusion out into the open and therefore to be able to regulate it. I would look for those that stand between those seeking to collect private information and the warrants they seek to be robust and to be given the power and authority to stand up for this role with impunity.
So “who will guard the guards themselves”? Those who we vote into office and those that they employ to scrutinise this process are given a high degree of trust by the British public. Sadly that trust has continually been abused in the years that ran up to the introduction of this bill. Having the nature of these invasions of our privacy regulated may be a small step forward but when it comes to restoring public confidence that these powers will not be abused then that thousand mile journey has only just begun.

See the live witness testimony of Theresa May which was aired on 13/01/15  at 4:15pm.

Michael Shaw’s Contact Details

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