Investigatory Powers Bill

Written evidence submitted by Brian Scallan (IPB 09)

The oversight mentioned in the bill (paras 194-206) proposes replacing at least seven surveillance commissioners (para 206) with a single Investigatory Powers Commissioner and a number of Judicial Commissioners to be determined by the Prime Minister (para 194).

Given that the bill lays heavy emphasis on bulk interception and bulk datasets, it seems counter-intuitive to reduce the number of surveillance commissioners to a single Investigatory Powers Commissioner plus a few Judicial Commissioners. If anything, the proposed legislation suggests that more oversight of surveillance is required rather than less and not just legal oversight. Even then, the openness or effectiveness of the Investigatory Powers Commissioner is curbed by frequent mention in the bill of the usual catch-alls:

(i) national security,

(ii) the prevention or detection of serious crime,

(iii) the economic well-being of the United Kingdom, or

(iv) the continued discharge of the functions of any of the intelligence services.

One could argue that if the oversight mechanisms are not rock-solid, then ironically, what is being proposed could in the long run undermine the four areas of privileged information enumerated above.

Previous oversight mechanisms such as the Security and Intelligence Committee did not have even one member on its panel with a degree in computer science. That committee was made up of members nominated for selection by the Prime Minister. Members were predominantly lawyers by training, educated during the pre-internet era. To put it another way, with the oversight proposed by the bill, it is obvious that technical issues will always have to be explained in layman’s terms to the Investigatory Powers Commissioner unless he/she has an engineering or computing background. When such vital issues are at stake, the need for in-depth understanding at a technical as well as a legal level is essential or the Commissioner(s) risk having to rely entirely on advisers, lobbyists, special interest groups and expert witnesses. The oversight will necessarily be deficient without outside experts scrutinizing the technical methods employed of those carrying out surveillance and the more aggressive measures such as equipment intrusion mentioned in the bill. It is absolutely not OK for experts drawn exclusively from within the agencies subject to oversight so that they are the only ones to explain difficult technical concepts to the Commissioner(s). There must be a counter-balance provided by outside experts from academia or engineering bodies or there is a high risk of the oversight itself becoming dependent exclusively on the agencies subject to oversight. It would be a circular reference if ever there was one, bordering on the incestuous.

As well as that, there are additional risks around the notion of warrants for bulk interception which could act as an incentive for agencies to apply for overly broad warrants to basically then pick out the parts deemed useful rather than applying for narrowly defined interception warrants which would be more in keeping with respecting the public while pursuing serious criminality.

There must be some measures kept of bulk warrants versus outcomes/convictions, not to mention more general measures of warrants versus outcomes. This at least should be in the public domain.

Lastly, the need for internal vigilance within law enforcement against infiltration will be vital since the powers at their disposal will be immense, but if the effectiveness of the oversight is as weak as it seems then that risk just increases over time.

In a nutshell, I'm genuinely concerned that what is being proposed in the Investigatory Powers Bill with its extensive powers and seemingly weak oversight, represents such a complete asymmetry of power between the individual and the state that is more akin to oppressive political regimes rather than a Western democracy.

March 2016

 

Prepared 24th March 2016