David Anderson QC – the Independent Reviewer of Terrorism Legislation – has now published the findings of his extensive review into the operational case for the bulk powers contained in the Investigatory Powers Bill.
Supported by an expert team of his own choosing, Anderson has duly assessed the specific question of whether the operational case for these powers has been made. The review team has critically appraised the need for bulk capabilities, considering whether the same result could have been achieved through alternative investigative methods.
The Government and the security and intelligence agencies have provided all necessary access, information and assistance for Anderson to undertake his review on a successful basis.
Anderson’s “full and comprehensive report”, which is welcomed by the Conservative Government, makes absolutely clear the critical importance of bulk powers. The report duly concludes:
*Bulk interception is of “vital utility” to the security and intelligence agencies, while alternative methods fall short of providing the same results. In one case assessed by the review team, in which a kidnap had taken place in Afghanistan, the report finds that: “Without the use of bulk interception, it was highly likely that one or more of the hostages would have been killed before a rescue could be attempted”
*Bulk acquisition of communications data is “crucial in a variety of fields, including counter-terrorism, counter-espionage and counter-proliferation” and its use cannot be matched by data acquired through targeted means
*An operational case for bulk equipment interference has been made in principle, and there are likely to be cases where “no effective alternative is available”
*Bulk personal datasets are of great utility to the security and intelligence agencies and, in vital areas of work, there is “no practicable alternative”
The Government is now affording careful consideration to Anderson’s report, which will play a central role in informing Parliament’s assessment of the bulk provisions in the Bill at Lords Committee stage.
Prime Minister Theresa May said: “I’m grateful to David Anderson for this report, which follows a detailed and thorough review in which the Government has provided unfettered and unprecedented access to the most sensitive information about our security and intelligence agencies’ capabilities.”
May added: “The report demonstrates how the bulk powers contained in the Investigatory Powers Bill are of crucial importance to our security and intelligence agencies. These powers often provide the only means by which our agencies are able to protect the British public from the most serious threats that we face. It’s vital that we retain them, while also ensuring their use is subject to robust safeguards and world-leading oversight which are enshrined in the Investigatory Powers Bill.”
Operational case for powers under review
The review looked only at the operational case for the four powers under review, including whether alternative means could have been as effective in achieving useful results. Anderson wasn’t asked to advise on whether the four bulk powers under review were desirable, or should be passed into law, or on the safeguards that should be applied to them. These matters have been the subject of extensive evidence to Parliamentary Committees and are now for Parliament to consider.
Three of the powers under review (ie bulk interception, the bulk acquisition of communications data and bulk personal datasets) are already in use across the range of MI5, MI6 and GCHQ activity, from cyber defence, counter-terrorism and counter-espionage through to organised crime. They play an important part in identifying, understanding and averting threats in Great Britain and Northern Ireland as well as further afield.
After close examination of numerous Case Studies, the review concludes that other techniques could sometimes (though not always) be used to achieve these objectives, but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower.
Accordingly, Anderson’s report states that there’s a proven operational case for the three powers already in use. It also concludes that there’s a distinct (though not yet proven) operational case for the fourth power, ie bulk equipment interference.
Commenting on his review and the subsequent report, Anderson stated: “The pace of change is breathtaking. If it’s to be satisfied that the use of these powers is both necessary and proportionate, and that MI5, MI6 and GCHQ have done everything possible to minimise the privacy footprint of their activities, the Government and, in particular, the new Investigatory Powers Commission need to be fully and independently informed about the latest technological developments.”
The report makes a single and major recommendation: that the Investigatory Powers Bill be amended to provide for a Technical Advisory Panel of security-cleared independent academics and industry experts to be appointed by the Investigatory Powers Commission “to advise the Commission and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability of techniques to use those powers while minimising interference with privacy.”
Liberty condemns “evidence-lite” report
Liberty has moved to criticise the report from the Government’s outgoing Reviewer of Terrorism Legislation, which the Human Rights and civil liberties-supporting organisation suggests “falls far short of the impartial, probing and well-evidenced investigation into the necessity of ‘bulk’ powers” so urgently required.
In May, then Home Secretary Theresa May – under pressure from Liberty in addition to cross-party MPs – announced a review into whether the “unprecedented and disturbingly intrusive” bulk surveillance powers in her flagship Investigatory Powers Bill are justified. Liberty cautiously welcomed the move, and set out the basic framework and requirements needed to make that review effective and gain the confidence of both members of the public and politicians alike.
Liberty claims that the review has “failed to meet these requirements” and that the report published “fails to add any further substance to the Government’s flimsy and, in some cases, hypothetical claims.”
Bella Sankey, policy director for Liberty, said: “Liberty called for an impartial, independent and expert inquiry into these intrusive powers, yet sadly this rushed review fails on all three counts.”
Sankey added: “The report provides no further information to justify the agencies’ vague and hypothetical claims, and instead invites the public to ‘trust us’. Post-Chilcot, this simply will not wash. Hard evidence is required instead.”
Lack of institutional independence
As far as Liberty’s concerned, the reviewing panel wasn’t institutionally independent of the security and law enforcement agencies. Anderson’s three advisors included Robert Nowill, GCHQ’s former director of technology and engineering, and Gordon Meldrum (former director of intelligence for the National Crime Agency).
In conclusion, Sankey commented: “The review panel consisted of former Agency staff effectively asked to mark their own homework and a reviewer who has previously advocated in favour of bulk powers. This review was an opportunity to properly consider the range of targeted methods that could be used as effective alternatives to indiscriminate and potentially unlawful powers. In our opinion, that chance has been wasted.”
As stated, the Report of the Bulk Powers Review concludes that an operational case has been made for three bulk powers in the Government’s Investigatory Powers Bill. According to Liberty, this conclusion is flawed.
Human rights laws require that secret surveillance measures can only be justified where they may be shown to be “strictly necessary for the obtaining of vital intelligence in an individual operation”. The report, suggests Liberty, fundamentally fails to demonstrate that this is indeed the case.
Liberty commented: “It fails to answer the central question – whether information gathered via bulk powers was the critical factor in preventing or detecting serious crime, and whether that information could have instead been obtained from smart and targeted surveillance.”
In addition, Liberty observed: “It focuses only on claimed successes of bulk power use based on anecdotal assertions from the intelligence agencies. It fails to inspect evidence of their failures, or to provide clear, evidence-based methodology to explain its conclusions.”
Targeted, not total surveillance
For its part, Liberty has long been concerned at the lack of any independent evidence that mass surveillance keeps the public safe, and is campaigning for a genuinely effective, targeted system of surveillance that protects the Human Rights to security and respect for private life.
As detailed in its submission to Anderson’s review, Liberty believes that the security and law enforcement agencies’ aims are, or could be, met by targeted methods – collecting and storing data on known suspects and their social networks, visitors to websites hosting illegal content and conflict zones.
By defining zones of suspicion and gathering intelligence from within them, believes Liberty, agencies can create rich, relevant, manageable data that leads to the rapid discovery of targets and threats.
Also responding to the publication of the review, Andy Burnham MP (Labour’s Shadow Home Secretary) said: “We welcome this report that the Government commissioned following pressure from Labour earlier this year, and thank David Anderson and his group for their important work. When the House of Lords debates the Investigatory Powers Bill, they will now be able to consider real evidence for the use of bulk powers.”
Further, Burnham explained: “It’s concerning, however, that the Prime Minister, who knows this legislation well, has not accepted the report in full, and in particular David Anderson’s call for a Technological Advisory Panel to ensure legislation keeps pace with changing technology. Both Theresa May and the Home Secretary must accept the report in its entirety and deliver on the separate concessions extracted by Labour in the Commons, namely tougher restrictions on the use of Internet Connection Records and stronger protections for journalists and lawyers.”