The Investigatory Powers Tribunal (IPT) has found in favour of the Foreign and Commonwealth Office and GCHQ on all points of law in a case brought by Privacy International and a group of seven Internet Service Providers.
The IPT’s ruling made clear that the legal regime under which GCHQ carries out Equipment Interference (EI) – also known as Computer Network Exploitation (CNE) – is, and always has been, compatible with Human Rights law.
The claim challenged ten aspects of GCHQ’s EI work, addressing in particular the compatibility of the legal framework with the European Convention on Human Rights. The IPT examined the legal regime both before and after the February 2015 publication of the Equipment Interference Code of Practice.
Speaking after the judgement became public, Foreign Secretary Philip Hammond said: “I welcome the IPT’s ruling and its judgement that a proper balance is being struck between the need to keep Britain safe and the requirement for the protection of individuals’ privacy. The ability to exploit computer networks plays a crucial part in our ability to safeguard all members of the British public.”
Hammond continued: “Once again, the law and practices around our Intelligence and Security Agencies’ capabilities and procedures have been scrutinised by an independent body and been confirmed to be both lawful and proportionate. The Draft Investigatory Powers Bill will further strengthen the safeguards for those Agencies’ use of these powers, including a new double-lock authorisation process. This legislation will provide our Intelligence and Security Agencies with the powers they need to deal with the serious threats our country faces, but always with those powers being subject to strict safeguards and world-leading oversight arrangements.”
Reaction to the Joint Committee’s Report on the Draft Investigatory Powers Bill
In response to the publication of the Joint Committee’s Report on the Draft Investigatory Powers Bill, Renate Samson (CEO at Big Brother Watch) commented: “Roundly lambasted for its lack of clarity, technical weakness, incomprehension and inconsistency, the Draft Investigatory Powers Bill has found a warily supportive friend in the Joint Committee tasked with scrutinising its proposals.”
Samson continued: “There will be temptation from the Home Office to view this report as a ‘green light’, but the politicians should tread cautiously. While the Committee has only proposed some fine-tuning recommendations, its members pointedly refer to the Intelligence and Security Committee and the Science and Technology Committee whose reports struck savage blows at the Draft Bill, including calls for privacy to be made the ‘backbone’ of surveillance law.”
In conclusion, the Big Brother Watch leader added: “While this report is far from damning, the mild-mannered recommendations should raise serious concern among members of Theresa May’s team that all is far from well with the Draft Bill. A great deal of work must be done to satisfy calls made by all three Committees.”
Liberty calls for full redraft
Liberty is urging the Government to pause and undertake a full redraft of its landmark surveillance legislation in the light of growing concern from cross-party MPs, technology experts and Human Rights campaigners that “no operational case has been made” for the unprecedented powers it proposes.
As stated, the Joint Committee on the Draft Investigatory Powers Bill became the third cross-party Parliamentary Group in ten days to highlight a raft of serious concerns with the planned legislation.
Shami Chakrabarti, director of Liberty, stated: “This report shows just how much homework the Government has to do on this landmark legislation. Despite reams of evidence from the Home Office, the Joint Committee finds the case for unprecedented powers to bulk hack, intercept and collect our private data has not been made. The Government now needs to pause, take stock and redraft. To do anything else would show an astonishing degree of contempt for Parliamentarians’ concerns and our national security.”
Major concerns voiced
According to the Human Rights campaigning group, the 200-page report from the Joint Committee “supports much of Liberty’s evidence”. Among a raft of major recommendations, the detailed document concludes that:
*The case for bulk surveillance powers has not been made, while such powers have the potential to breach the Human Rights Act
*Bulk communications data retention is particularly intrusive and requires further justification and is currently subject to legal challenge by Liberty and MPs Tom Watson and David Davis (more of which anon)
*So-called ‘thematic warrants’ for interception and hacking are too broad and must be re-drafted such that they cannot be used to target large groups of people
*No formal case has been made for the retention of Bulk Personal Datasets (ie huge files containing personal information about vast numbers of people)
*Important changes should be made to provisions regarding encryption to make it clear that the Government cannot insist on ‘back doors’ or preventing end-to-end encryption
*Protections for journalists’ communications and those between lawyers and their clients should be added to the face of the Bill
*Justifications for surveillance must be tightened and national security defined in legislation. Intelligence-sharing safeguards are insufficient, and may further Human Rights abuses. The Government should reconsider its proposal to enforce ‘extra-territoriality’
The Joint Committee also appears to favour reform designed to make intercept material admissible in court, recommending that the Government keeps the issue under review in light of the “significant perceived benefits of using such material as evidence”.
Liberty disagrees with some of the Joint Committee’s conclusions, though, and particularly its support in principle for mass surveillance despite a concession that it was “not well placed to make a thorough assessment of the value of bulk powers”.
Liberty also disagrees with the Committee’s conclusion in favour of the blanket retention of Internet Connection Records and the review model for surveillance warrants, which would continue to see them issued by Government ministers.
Ongoing legal challenge
Liberty is currently representing MPs David Davis and Tom Watson in a challenge to mass data gathering and access powers in the Data Retention and Investigatory Powers Act (DRIPA). Many of these powers are replicated and extended in the Draft Investigatory Powers Bill, despite the ongoing legal challenge.
The case has been referred to the Court of Justice of the European Union (CJEU). Liberty has received an Order from the CJEU confirming its decision to expedite procedure, with a hearing due to take place on 12 April.
The Order draws attention to the intrusiveness of bulk communications data retention, stating that national legislation permitting this process is liable to cause “serious interference with fundamental rights” currently protected by the Charter of Fundamental Human Rights.
If the CJEU finds this interference is unjustified, DRIPA will be struck down, replacement provisions for bulk data retention “stopped in their tracks” and the lawfulness of a range of bulk powers in the Draft Bill “thrown into doubt”.