On 4 November 2015, the Home Office published a proposed Investigatory Powers Bill with the intention of extending police surveillance powers, such as; the interception of communications, equipment interference and the acquisition and retention of communications data. This bill comes shortly after the scandal involving Edward Snowden, who previously leaked information evidencing the collection of phone records by the US National Security Agency. A revised version of the bill was published on 1 March 2016, accompanied by several draft codes of practice and explanatory materials. This will be followed by a second reading of the draft bill by MPs on 15 March 2016.
Rationale for the revised bill follows specific concerns raised by, amongst others, the Intelligence and Security Committee and the Joint Committee on the Draft Investigatory Powers Bill.
Headline recommendations by the above committees include:
1. Privacy Safeguards - it was felt that the draft privacy safeguards within the bill needed to be both clearer and stronger. There are now additional protections for journalists within the bill which removes an exemption for UK security and intelligence agencies seeking to identify journalists’ sources. The bill also now includes statutory protections for lawyers.
2. Internet Connection Records - in light of recommendations from the Joint Committee on the Investigatory Powers Bill and the Science and Technology Committee, the revised bill has sought to incorporate implementation plans developed with industry representatives regarding the retention of internet connection records.
3. Clarity - in the interests of producing a clearer bill, it was requested that more explanatory material be published in order to better explain how and why the powers are being granted to police. A further recommendation was the need for more refined technical definitions within the bill, again to engender clarity as to effect.
Commenting on the revised bill, Theresa May MP stated that this version, "reflects the majority of the committees’ recommendations – we have strengthened safeguards, enhanced privacy protections and bolstered oversight arrangements – and it will now be examined by parliament before passing into law by the end of 2016. Terrorists and criminals are operating online and we need to ensure the police and security services can keep pace with the modern world and continue to protect the British public from the many serious threats we face".
Although it is widely admitted that current legislation in the area of surveillance communication is in need of legislative overhaul, the proposed Investigatory Powers Bill has not been without controversy and increased surveillance powers in the hands of the police have not been welcomed by all.
A report presented to the UN Human Rights Council by special rapporteur on privacy, Joseph Cannataci, was less enthusiastic about the proposed Investigatory Powers Bill. The report criticised the UK government for paving the way towards bulk data collection and mass surveillance, which was felt would have "negative ramifications beyond the shores of the UK" in terms of setting a bad example for the protection of individual's right to privacy by their governments.
In a similar vein, Shami Chakrabarti (director of Liberty, the British civil liberties advocacy organisation) felt that in her opinion the bill was "majorly flawed" and that the "Government must return to the drawing board and give this vital, complex task appropriate time. Anything else would show dangerous contempt for parliament, democracy and our country’s security."
The final form of the Investigatory Powers Bill is hoped to be in place by 31 December 2016. However, in light of the above controversy, it remains to be seen whether this will be achieved. The rushed timings involved in passing this bill have also been criticised, given the sensitive nature of the bill and the need to adequately evaluate its potential impact on all fronts.
This article was written by Christopher Coughlan and Jonathan Hyde.