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Snooper's Charter: Are we about to enter a world of suspicionless surveillance - regulated by politicians?
With powers to snoop on our communications that are unprecedented anywhere in the world, it is essential the Investigatory Powers Bill doesn't let politicians decide who is spied on.
The bill, if it is passed, aims to give the police and intelligence agencies sweeping powers to scoop up our emails, phone calls and text messages; and access details about when, where and with whom we communicate; and even hack into our computers and smartphones. At Privacy International, we have many concerns about the proposals and will be campaigning hard over the coming months, but one of our strongest concerns is about the powers that politicians will continue to wield in deciding who gets snooped on.
If Parliament passes the bill, in essence our personal data will no longer be personal – the state will be able to access it whenever it decides to. The government will be routinely collecting and retaining the data of people who are not suspected of any crime. We must strongly resist giving any government such a power to put every one of us under permanent suspicionless surveillance.
But what makes this an even greater concern is that it is likely these agencies will be able to exercise many of these hugely intrusive powers into our private lives without the prior approval of judges. While Home Secretary Theresa May is promising a reassuring sounding "double lock" system - whereby her warrant approval would then be signed off by a judge - at closer inspection, this is anything but reassuring.
Let's be clear – what the government is proposing is not judicial authorisation. The newly created Investigatory Powers Commission (IPC) will be little more than auditors. As section 19 of the bill indicates, the IPC "will oversee intercepting authorities' use of this power, ensuring that the detailed safeguards set out in legislation are stringently applied...The Commissioner will audit how the authorities use the power and publish his findings annually".
The IPC would only be checking that the home secretary has been following correct procedures, when what we actually need is for them to independently examine the warrant application themselves and decide whether it should be approved or not based on their legal expertise.
The government clearly does not want them to have this power. As Shami Chakrabarti from Liberty put it: "At most, there is a very, very limited role for judges in a rubber-stamping exercise. It is not judicial sign-off... They have spun it as a double lock, but the second person, the judge, does not actually have a key."
In 2014, the home secretary authorised 2,345 interception warrants. As pointed out by her Conservative colleague David Davis MP: "If she is having to sign off 10 warrants a day, she can't possibly do it with the proper scrutiny needed."
Martin Chamberlain QC, who is one of the most pre-eminent lawyers involved in terrorism and national security cases argues: "The idea that the decision-maker can apply her mind properly to every one of these is far-fetched." If the police and intelligence agencies really want to regain public confidence, they shouldn't be placing the burden of authorising their intrusive activities on one busy individual. The so-called double-lock would not change this.
Attorney General Jeremy Wright has apparently advised the home secretary to maintain political authorisation, rather than hand this power to judges. This is wrong-headed. Why are politicians stopping proper legal scrutiny of warrant applications to be carried out by independent judges?
Why is the UK sending a message out to the world that our politicians should be able to operate above the law? One of the reasons we have a judiciary that is separate to both government and Parliament is to prevent the concentration of power within the political classes and to act as a vital check on their powers.
In his wide-ranging report, A Question Of Trust, published in the summer, David Anderson QC, the Independent Reviewer of Terrorism Legislation, called for judicial commissioners to approve warrants. The highly influential security and defence think tank, the Royal United Services Institute (Rusi), also called for judicial approval of warrants in their report published less than two months later.
Dominic Grieve, the former attorney general and the newly appointed chair of the intelligence and security committee, which is Parliament's intelligence "watchdog", has added his voice to the clarion call for judicial authorisation, noting "forms of judicial authorisation or scrutiny exist, for example, in large numbers of other Commonwealth countries and in the United States and work very well". And he rightly rejects concerns that judges would be too slow in authorising urgent requests, stating: "There is no evidence that they cause a difficulty in carrying out the work."
As Davis points out: "We will remain the only one of all the five eye ally countries – the US, Canada, Australia and New Zealand – who won't have judges' sign off." Judicial authorisation in these countries has not hamstrung their ability to carry out surveillance. The UK must not doggedly pursue a separate path.
The perpetuation of such a flawed and cosy approval process will do little to re-establish the credibility that the UK's surveillance regime so badly needs.
Andrew Parker, the head of MI5, has called for a "mature debate" as the Investigatory Powers Bill goes through Parliament over the coming months. As part of that mature debate, we look forward to the government thinking again about whether we can trust a system where intrusion into our daily lives is being approved in in such a cavalier manner.