On Monday the 14th July 2014 new emergency laws were introduced into the House of Commons which will reinforce security services’ powers to require internet and phone companies to keep records of their customers’ calls and emails. The law will not include a power to look at the content of phone calls, but will require the storing of information regarding the location, date, and phone number. The new laws have been agreed with cross-party support.
The Government claims that they have been forced to act due to a European Court of Justice ruling in April which stated that current requirements for internet and phone companies to store data on their customers at the request of Government for 12 months were too wide-ranging and invaded individual privacy. The Government therefore claims that the emergency laws are necessary as there would be no obligation on companies to keep data if there was a UK court challenge to the retention of data.
Although many civil liberties campaigners have openly criticised the move, taking particular discomfort in the Government’s attempt to rush the laws through Parliament before the summer break next week. The claim being that this is due to the emergency created by the European Court of Justice’s ruling, although criticism in this regard is quite justified. The Court ruling was made in April, therefore the emergency has surely been present since then, and yet it has taken three months for it to be classified as such, and then laws rushed through the Commons in a back-room, cross-party deal, without proper democratic scrutiny.
However the composition of the emergency laws is not without promise. There are certain safeguards which may, as Alan Travis, Home Affairs Editor at the Guardian suggests, enable some of the shady surveillance activities, brought to light by Edward Snowden, to be conducted in the open, or at least acknowledged, and thus brought under some degree of democratic control.
The long-running review of the Regulation of Investigatory Powers Act 2000, which forms the legislative basis for the modern surveillance state, will be completed by 2016. This could in theory lead to state surveillance being brought under tighter control, and better regulation.
The creation of The Privacy and Civil Liberties Oversight Board, based on a similar US system, will contain external experts and be required to monitor how the powers are used whilst ensuring that civil liberties are the foundation of counter-terrorism rather than an afterthought. Alan Travis argues that this may provide the currently missing alarm system for the protection of civil liberties, and a major expansion of the Counter-Terror Watchdog, which currently consists solely of David Anderson.
Additionally the publication of annual transparency reports will set out how often the police and security services are using the legislation.
There will be the appointment of a senior diplomat to lead discussions with the US Government and internet companies to establish a new international agreement for sharing data across boundaries. It marks recognition that GCHQ’s and the NSA’s recent surveillance and data collecting activities require a legal basis much stronger than those implied in the Regulation of Investigatory Powers Act 2000.
Furthermore the laws will expire in 2016 thus requiring fresh legislation after the next general election to be re-implemented. This will allow a further review of the necessity of those powers under the new circumstances which will surely evolve over the next couple of years given the pace of technological advancement.
These emergency laws are therefore a departure from the pure surveillance state introduced by the previous Labour Government. They remain a Governmental tool through which information can be gained, but for the first time they have an accompaniment of accountability and democratic control. Whether this is likely to be the start of a more open and palatable period of surveillance or merely a series of empty gestures, time will tell, but it is at the very least a small improvement in rhetoric.
David Cameron speaking on the matter said the following:
"It is the first duty of government to protect our national security and to act quickly when that security is compromised. As events in Iraq and Syria demonstrate, now is not the time to be scaling back on our ability to keep our people safe. The ability to access information about communications and intercept the communications of dangerous individuals is essential to fight the threat from criminals and terrorists targeting the UK.
No government introduces fast track legislation lightly. But the consequences of not acting are grave. I want to be very clear that we are not introducing new powers or capabilities – that is not for this parliament. This is about restoring two vital measures ensuring that our law enforcement and intelligence agencies maintain the right tools to keep us all safe."
Whilst Deputy Prime Minister and leader of the Liberal Democrats (the more obviously pro-civil liberties party) said:
"I believe that successive governments have neglected civil liberties in the pursuit of greater security. We will be the first government in many decades to increase transparency and oversight, and make significant progress in defence of liberty. But liberty and security must go hand in hand. We can't enjoy our freedom if we're unable to keep ourselves safe."
The message is clear; these powers are necessary, no more onerous than those previous, and introduce greater protection of civil liberties rather than the erosion thereof. The Home Secretary Theresa May has also denied the introduction of new powers to force international companies to comply with British intercept warrants, claiming that in Government circles it has been assumed that the power has been presently implied by the Regulation of Investigatory Powers Act 2000.
Therein the problem is contained. The power to conduct mass surveillance of citizens should not be assumed or implied, but explicit and regulated. I have no problem with Government surveillance, if it can be demonstrated to be justified and only used when necessary; in fact I find it slightly less intrusive than the commercial surveillance conducted through internet use to bombard me with targeted adverts, although that may be because I do not see the consequences or outcome of Government surveillance.
The question has to be whether the retention of this data is necessary, for a limited and predetermined timeframe. The answer is yes, simply because it is necessary to criminal investigations which may take months to complete, and would be hindered by the unavailability of pertinent information. This is ghere the annual transparency reports will hold great significance, to assess the frequency with which the powers are being used and to ensure that only information relevant to investigations is being accessed.
Conversely if this information was deleted immediately or soon after its creation, it may encourage the police to request far greater amounts of information for fear of missing that which is relevant.
In summary, any change in surveillance powers is to be viewed with suspicion, in the modern age where any such change is highly unlikely to involve a decrease in such powers. However, if the powers are to remain the same then the attempt to make their use more democratic and accountable must be welcomed, we can only hope that this is the case in practice.