By Robert Stevens
Conservative home secretary Theresa May introduced before Parliament the government’s proposed Investigatory Powers Bill yesterday. The 299-page draft Bill is a fundamental assault on democratic rights and civil liberties.
It has two centrepieces:
* Internet providers will be compelled to store for 12 months the Internet browsing records of every UK citizen. Access to these records by the police and security services is authorised.
* The state’s spies will be legally able to covertly hack anyone’s computer, phone or other electronic communications device.
In its previous guise, the Bill was known as the “Snoopers Charter.”
Such was the scale of intrusions by the state into the privacy of millions that it was rejected in 2012 by the Tories’ previous coalition partners, the Liberal Democrats. But with a few modifications, mainly around the issues of judicial and ministerial oversight of warrants, the latest Bill is even more draconian than the one the Tories were forced to withdraw.
The Bill governs “all of the powers available to law enforcement, the security and intelligence agencies and the armed forces to acquire the content of communications or communications data.”
It covers electronic surveillance, telephone taps and all other forms of spying.
Under the guise of tackling “terrorist plots and serious and organised crimes,” May said the state would have “the ability to intercept the contents of communications in order to acquire sensitive intelligence…. The use of equipment interference powers to obtain data covertly from computers; and the use of these powers by the security and intelligence agencies in bulk to identify the most serious threats to the UK from overseas and to rapidly establish links between suspects in the UK.”
May stated that the Bill took on board recommendations from Parliament’s Intelligence and Security Committee; a review of existing legislation by David Anderson QC, the Independent Reviewer of Terrorism Legislation; and another review from the Independent Surveillance Review convened by the Royal United Services Institute.
The government plans to enact the new Bill by the end of 2016, as the current Data Retention and Investigatory Powers Act ceases to be law from December 2016.
May told Parliament for the first time, in an extraordinary revelation, that every government since 1994 had already issued secret directions to Internet and phone firms, under the 1984 Telecommunications Act, to hand over the all communications data of British citizens in bulk to the security services. She claimed, without citing a shred of evidence, that this data had foiled a “number of attacks” by terrorists in the UK, “including on the London Stock Exchange” in 2010.
The power to access what the Bill terms “Internet Connection Records” will not require the authorisation of a warrant by the state agency seeking the information. An Internet Connection Record is defined in the Bill as the URL of the web site accessed by a user. If the state agency wants to know the full browsing record of an individual–i.e., all the pages that the individual looked at on a web site–this will require a warrant.
May fraudulently claimed, with virtually no challenge made against her, that the Bill had the necessary safeguards in place to protect infringements of privacy, declaring that it included a “double lock” for the use of interception warrants.
In order to access the exact content of phone calls, e-mails or messages sent via social media, state agencies will require a warrant approved by the home secretary and then by a senior judge. At present, such intrusion is carried out with just the home secretary signing a warrant. The Bill establishes an investigatory powers commissioner (IPC), who will be a senior judge, appointed by the prime minister. The IPC will work with judicial commissioners (former High Court judges) who will also be able to authorise warrants.
However, in cases deemed “urgent,” the home secretary will be allowed to authorise a warrant before a commissioner even sees it. In any situation where a commissioner rejects the home secretary’s request, the home secretary would be able to apply to the senior commissioner to have the ruling overturned.
The claim that the intrusions into the privacy of all will have judicial oversight is a sop. Following May’s statement, Tory David Davis pointed out that the Bill “tells the judicial commissioners they have to make decisions based on judicial review principles, not on the basis of the evidence. In other words, the home secretary would have to behave in an extraordinary manner not to get his or her warrant approved. This is not the judge checking the evidence, it is the judge checking that the correct procedure has been followed.”
No one is to be exempted from blanket state surveillance, include members of Parliament themselves. May stated, again without a murmur of opposition, “In any case where it is proposed to intercept the communications of a Parliamentarian–including members of this House, members of the House of Lords, UK MEPs and the members of the devolved legislatures–the prime minister would also be consulted.”
In terms of the vast surveillance dragnet now being legalised, Orwell himself would have been stumped trying to describe May’s statement that the Bill contained, “no substantial new powers” and would “provide some of the strongest protections and safeguards anywhere in the democratic world and an approach that sets new standards for openness, transparency and oversight.”
In 2013, US National Security Agency whistleblower Edward Snowden proved, by making public a mass of secret documents, that the British government, via its vast GCHQ spying network, was conducting the illegal blanket surveillance of every man, woman and child in Britain. This includes all incoming and outgoing electronic communications made by British citizens.
The Bill outlined by May legalises this state surveillance, the scale of which has no historical parallel. Tweeting in response to May’s statement, Snowden pointed out that the government’s mantra that “ ’It’s only communications data’ = ‘It’s only a comprehensive record of your private activities.’ It’s the activity log of your life.”
The rot of British parliamentary democracy was evidenced as May outlined a Bill, which terminates democratic rights stretching back to the Magna Carta of 1215, to just a handful of MPs. The majority deserted the Commons in droves just before she spoke, after listening to the weekly prime minister’s questions session.
The Bill can expect to be passed in 2016 with virtually no opposition, as the Labour Party’s shadow home secretary, Andy Burnham, threw the party’s support behind May’s statement. He declared the Bill went “beyond party politics”, adding, “This is neither a snooper’s charter nor a plan for mass surveillance.”
Labour support for the Bill’s authoritarian and dictatorial measures represents a further sharp shift to the right by the party under its newly elected “left” leader, Jeremy Corbyn. As a Labour backbencher, Corbyn had previously voted against measures proposing the mass retention of communications data, dictatorial “anti-terror” legislation curtailing civil liberties and ID cards.
The Bill was also backed by the Liberal Democrats, with Nick Clegg, the former deputy prime minister in the Conservative/Liberal coalition, describing it as “much-improved” from its 2012 incarnation.