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In a word: privacy and the Investigatory Powers Bill

March 4, 2016

The Intelligence and Security Committee (ISC) in its report in response to the draft Investigatory Powers Bill (the Bill) said, “Overall, the privacy protections are inconsistent and in our view need strengthening. We recommend that an additional Part be included in the new legislation to provide universal privacy protections, not just those that apply to sensitive professions”. In less than a month, the revised Bill was published. In response to the ISC’s recommendation, the parliamentary draftsperson added under the heading “Part 1” the heading “General Privacy Protections” but failed to change the content of Part 1 in any other material way. The failure to do so caused astonishment. David Allen Green at Jack of Kent exposed the cynicism in a blog called “Privacy is Surveillance”, Buzz Feed’s James Ball tweeted dryly “ISC said ‪#IPBill needed a new section to “provide universal privacy protections”. Instead, they changed a heading” and NSA whistleblower Edward Snowden, who exposed the spectre of unlawful mass surveillance by state agencies on a global scale and catalyzed the current reform tweeted sardonically “Headline: “Revised bill adds privacy safeguards.” Reality: Govt changed one header”.

The need for universal privacy protection in the context of covert policing resources is made clear when a typical surveillance scenario is considered: surveillance of a telephone conversation.

If the conversation is intercepted, it needs a Ministerial certificate. Interception has consistently been regarded as “highly intrusive activity”: see the government’s Consultation on Interceptions in 1999. If it takes place without lawful authority it is a criminal offence: s 1, Regulation of Investigatory Powers Act 2000 (RIPA). The content of the conversation is inadmissible and its disclosure is a criminal offence: ss 18 and 19 RIPA.

However, if the conversation takes place on a “hands-free” telephone within a car, the authorisation regime is different. A combined interference with property and intrusive authority is required. This is self-authorised at Chief Constable level but requires approval from a Surveillance Commissioner. The content of the conversation is admissible: R v Alsopp [2009] EWCA Crim 462.

If a person present listening to the conversation (or indeed recording it) is a Covert Human Intelligence Source (and informer or undercover officer) the authority required is internal – superintendent or above – and not subject to the approval regime. The Code of Practice says this at §3.25:

A CHIS, whether or not wearing or carrying a surveillance device, in residential premises or a private vehicle, does not require additional authorisation to record any activity taking place inside those premises or that vehicle which takes place in his presence. This also applies to the recording of telephone conversations or other forms of communication, other than by interception, which takes place in the source’s presence. Authorisation for the use or conduct of that source may be obtained in the usual way”

The material obtained in this manner is admissible. Neither the acquisition of the content of the telephone conversation through a listening device or if recorded by a CHIS is unlawful: authorisation is purely voluntary: s 80 RIPA and C v Police and Secretary of State, IPT/03/32/H

There is no qualitative difference to the nature of the material that is the subject of the surveillance, yet the protections traverse the panoply of authorisations available through the legislative regime. This position will remain if the Bill is enacted in its current form. A similar case can be made out in respect of other investigatory techniques that would be available to the state when the Bill becomes law.

It is worth reflecting on Edward Snowden again. Whether you consider him someone who acted in the public interest or treasonously, it is inarguable that he exposed unlawful acts by governments (our own and foreign). He prompted this change in the law. International standards require it to be sufficiently clear and precise. The ISC, chaired as it is by an eminent QC, no doubt had this at the forefront of its mind when it made its recommendation. If it fails to meet the standards it will be found wanting either here or in Strasbourg. The ISC’s recommendation was the act of a responsible oversight body; in rejecting it the government has acted like a petulant child. It says the Independent Reviewer of Terrorism Legislation, David Anderson QC’s report has heavily influenced the proposed statutory framework. If it was, it has singly failed to appreciate why it was perceptively entitled A Question of Trust.

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7 Comments
  1. Well written, and devoid of much of the emotive hyperbole in the wider debate. My recent thesis, in concluding as to the need for a single comprehensive statute, also placed communications-related information at its conceptual core. For me, ‘investigatory powers’ are a misnomer; the IPBill repeats the practice in the IOCA 1985 and RIPA 2000 of setting out a selection of investigative techniques amidst a background of purported ECHR compliance. CNE and EI more generally are newly avowed additional techniques for obtaining what interception and wireless telegraphy interference etc. achieve. In my view, it follows that the degree of privacy intrusion (i.e. the actual opening and reading the content of the communication and finding out what I have said in the reasonable expectation of privacy) is the same, and that to view the degree of intrusion according to the technique used is a flawed assessment of interference with the right to respect for correspondence/communications and to impart information.
    History will show that the IOCA 1985, and then RIPA 2000 were enacted to ‘sell’ the British public an illusion of human-rights compliance in a range of investigative techniques that were actually very narrow in their ambit, and on which, Snowdenesque, the executive had been publicly exposed. The real Government powers remained concealed in s94 of the Telecommunications Act 1984, Wireless Telegraphy legislation, and in the intelligence-sharing regime existing in secret under the UKUSA but outside statute law. I call it legislative concealment, in that the preambles to the WT Acts and TA1984 give the public no clues as to what powers are actually inside. This sits poorly with the rule of law.
    The IP Bill is undoubtedly transparent, pretty much to the point of overkill. The Bill and its accompanying Codes of Practice and other documentation are unbelievably lengthy and verbose, and in that infuriating Home Office fashion, include constant reminders as to why the powers are needed, and the somewhat unpleasant inference that to oppose that view means endorsing rights to support terrorism or condone paedophilia.
    I actually support bulk communications ‘screening/filtering/collection’, and indeed have no objection in principle to any of the investigative techniques now publicly avowed.
    HAVING BEEN CARRIED ON IN SECRET FOR YEARS, AND BEING CONSTANTLY DEVELOPED AS A MATTER OF POLICY AND OPERATIONAL NEED, they are, like Gerry Adam’s reformed freedom fighters, ‘not going away you know’.
    Objecting to their existence is pointless and despite the best efforts of Shami, Privacy et al, not enough Brits are getting antsy enough about their existence. The key therefore is to ensure the proportionality of their use, something the ECtHR is undoubtedly going to do sooner or later.
    I share the widely held concerns as to the proportionality of their use. The Official Secrets Acts, the IOCA 1985 and RIPA 2000 have repeatedly demonstrated that the UK executive are unable to undertake objective proportionality assessments. Too often, the assessment appears to involve a Home Office ‘M’ equivalent asking a UKIS/LEA ‘James’ equivalent as to the perceived necessity of a particular investigative technique, before weighing that perceived necessity against the likelihood of exposure and/or collateral damage before turning away after a knowing wink as the operation is authorised and conducted.
    Proportionality cannot credibly be objectively assessed by either the Home/Foreign Secretary, by a Chief Constable or Senior Civil Servant, or even by ‘independent persons holding or having held high judicial office’ when the ‘law’ as drafted places no definitional limits whatsoever as to the PURPOSES of the communications-related data acquisition. ‘In the interests of national security’ allowed the ‘necessary and proportionate’ acquisition of confidential communications content from Amnesty International and that which was obtained under the UKUSA agreement from the NSA et al. The legislative concealment referred to earlier allowed the executive a top secret and unfettered discretion to acquire communications-related data through the issue of directions to CSPs and the acquisition of extra-jurisdictionally obtained material from the NSA et al ‘in the interests of national security’.
    It is incredibly disappointing that our democratically elected Government, having heard so much opposition to the structure, scope and extent of this bill, have ignored the most significant of the very real concerns expressed by some genuine experts in their field in scrutinising this bill, and seem hell-bent on introducing RIPA II, a bigger, but equally opaque tome that satisfies only the pointless sop of ‘transparency’, whilst placing no GENUINE, RULE OF LAW COMPLIANT limits or constraints on the purposes of the investigative techniques now avowed and continuing unabated.
    As with DRIPA 2014, and Digital Rights, it is almost certain that this latest rush to legislate in this area of law will be censured by Strasbourg, if not the domestic courts, which begs the question of why the commendable efforts of Anderson, RUSI, Demos, Pounder and even the much-maligned ISC have not been followed up in full.

  2. Good article, what about a call to a CHIS which is intercepted and recorded for intelligence purposes only, but is also recorded by that CHIS for evidence should the prosecution want to admit it? Lawful ? Thanks in advance.

    • Look at s 81(5)RIPA 2000; the use of Part 1 for evidence gathering impermissible. If it is arguable that the purpose of the Part 1 is to assist CHIS to know when to record may be an issue. I don’t have the facts, so the usual caveats apply – this is not legal advice etc.

  3. Ben permalink

    Is this a discussion of the current law or what the law will be if the IP Bill passes? Because, using your example, it will not be possible to intercept the phone all using authorisations under the Police Act 1997 and Part 2 of RIPA. It will no longer be possible to use property interference authorisations in that situation. A targeted interception or equipment interference warrant would be required, which have similar safeguards – albeit product from the latter would be admissible.

    • I am afraid you’ve misunderstood. The position is (and will remain under the new Bill) that the telephone conversation can be intercepted. The blog examines the three ways that a call can be surveyed: (a) interception; (b) listening device; or (c) CHIS. I did not suggest the PA 1997 or Part II RIPA would be used to intercept the call (neither can in fact be used for this purpose) but rather the same content can be monitored using all three resources and that the privacy protections are starkly different.

  4. Sam permalink

    You succinctly expose the fundamental flaw in all of the UK’s investigative powers legislation which approaches the authorisation/approval process from the perspective of the category/type of collection rather than the purpose of it.

    You make the valid point that the same product can be collected in different ways and authorised at different grades or positions.

    I take a similar view to philgloveruk above regarding the transparency of this Bill and offer an additional concern. How can any authorising officer or approver (irrespective of grade or position) properly consider the legal tests or necessity and proportionality if they are not aware of other collection methods being used.

    When I was the Chief Surveillance Inspector, it was clear to me that the best solution is to have a single independent authorising officer responsible for granting all covert surveillance associated with an investigation. By appropriate use of the review/renewal procedures tactics can be amended as the investigation matures.

    Focus on purpose not method.

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