Investigatory Powers Bill

Written evidence submitted by Leonard J. Crabs
on behalf of the Megan Kyanka College Fund (IPB 29)

Submission to the Public Bill Committee on the Investigatory Powers Bill

1. PREFACE

1.1 Fundamentally, the IP Bill authorises and codifies practices which intelligence and law enforcement have been using under interpretations of existing law that were not disclosed to Parliament. The Bill's explanatory notes assure us that that the new law ostensibly authorises no new powers and thus should be uncontroversial.

1.2 However, many of the existing powers were never explicitly authorised by Parliament. They were never debated. Many were authorised directly by a former or current Home Secretary and not subject to legal scrutiny. The public was unable to challenge the law in court, or even to know that they had legal standing. These powers have never been authorised by Parliament, but were created ad-hoc in absolute secrecy.

1.3 Therefore, the new Bill cannot be considered as a straightforward tidying-up of existing good law. It proposes powers that have been ruled illegal in other nations such as the United States. To quote Paul Hayes QC on this Bill, "the Bill is so bad – technically, philosophically, legally, pretty much any way you want".

1.4 We concur with the letter written to the Guardian on 15 March 2016 and signed by over 250 lawyers and 50 law schools, that the proposed IP Bill is "unfit for purpose", and will continue to be without "significant revisions".

1.5 The proposed IP Bill utterly changes the way law enforcement and intelligence are performed in the United Kingdom, in a manner that is incompatible with the international community, with the historical practice of law enforcement in the UK, and the standards that citizens current understand to be the case.

1.6 Indeed, it should shock the IP Bill Committees, Parliament, and the UK public to hear that the explanatory notes of the IP Bill claims merely to codify existing law enforcement and intelligence practices, while at the same time the text of the Bill describes powers that literally revoke the right to privacy of all UK citizens.

1.7 The letter of 15 March 2016 signed by hundreds of legal experts describes that the IP Bill's bulk warrants violate the fundamental right to privacy; the Bill's "targeted" warrants fail to meet international standards as they don't actually require a specific target; and the Bill authorises interceptions without reasonable suspicion or national security need.

1.8 We agree with this group, as well as independent observers, that these are serious issues and the Bill must not proceed to law until these and other issues are appropriately addressed.

2 CRITICAL FLAWS IN THE IP BILL

2.1 POTENTIAL FOR MISUSE DUE TO AMBIGUOUS TEXT

2.1.1 We must assume that the intelligence agencies will operate with two properties: first, that in pursuit of their duties they will interpret the law as broadly as possible in order to maximise ther ability, and secondly, that owing to secrecy, their activities and interpretations of law will not be hampered by scrutiny from Parliament, press, public opinion or most lawsuits.

2.1.2 The only exceptions to this are limited: the IPT, which has almost never found against the state in its hearings, and where lawyers who bring suits are often forbidden from facts due to secrecy; the Parliamentary surveillance oversight committee, which a leaked GCHQ document described as favourable to GCHQ after the 7/7 bombing; and the Home Secretary who must approve intelligence warrants based on whatever limited synopsis the agency provides, and who (as pointed out by David Davis MP) has not enough time to give proper consideration to the thousands of warrants per year, and who is not necessarily qualified legally to determine the legality of the warrants.

2.1.3 Several parts of the Bill have been criticised as confusing or ambiguous. This includes the definition of Internet Connection Records, which the owner of Internet service provider A&A testified to the committee is neither a term ordinarily used in the industry, nor defined in the text of the bill (it was defined in the explanatory notes, but explanatory notes are not law); the definition of terms like "telecommunications provider" which seems to refer to phone companies and ISPs like BT but might be construed to refer to any private citizen who operates a website; etc.

2.1.4 Recommendation: Any section of the Bill which critics describe as confusing or ambiguous must be changed to be made explicit and unambiguous.

2.2 DOUBLE LOCK

2.2.1 The "Double Lock" standard suggested is widely regarded by legal experts as insufficient. It replaces one weak lock with two weak locks. In fact, the metaphor of a "lock" is strained at best.

2.2.2 The Home Secretary has not conceded to the recommendation of independent reviewer David Anderson QC, who insisted that it was necessary for a judge to sign surveillance warrants. Such warrants may approve such programmes as, according to classified documents leaked by Edward Snowden, a system to record the audio of all phone calls within the United Kingdom. The Home Secretary, any Home Secretary, is unqualified to determine if this is legal and proportionate, since they current Home Secretary is not a senior judge, the post of Home Secretary is not required to be a judge.

2.2.3 The concept of a "Double Lock" suggests that the decision is twice as strong if signed by both the Home Secretary and a judicial commissioner. However, it is the current understanding that the judge will have limited ability to perform this task and would for the most part be a rubber stamp on the decisions which will continue to be made by the Home Secretary.

2.2.4 The metaphor "double lock" is inaccurate because it suggests that the decision is strong if made by two people. In fact, it would clearly be strongest if made by a single, most qualified person.

2.2.5 Recommendation: Following the recommendation of David Anderson QC, the Home Secretary should surrender responsibility for signing warrants, and pass this on to a senior judge who has full authority necessary to examine the legality and necessity of warrants.

2.3 JUDGE MUST SIGN POLICE WARRANTS

2.3.1 The proposed Bill authorises police to access data which a person would consider private, including by equipment interference (generally understood as "hacking"), targeted surveillance, and access to databases acquired by mass surveillance.

2.3.2 It is the general understanding of the public that each citizen possesses a general right to privacy, and that in order for police to violate that right, it is not sufficient that they merely do so in the pursuit of enforcing the law. They also need reasonable suspicion regarding the person targeted, and frequently a warrant signed by a judge pertaining to that specific case.

2.3.3 It is completely unthinkabout that police departments should be authorised to sign their own warrants, or that warrants in criminal cases should be "general warrants" which cover citizens who are not under suspicion. This Bill would effectively to revoke UK citizens' right to privacy and right to quiet enjoyment of their property.

2.3.4 Police are not judges, and, like intelligence agencies, it must be assumed that, in pursuit of their duties, police will operate at the maximum extent of what the law allows, in order to maximise their effectiveness. The law cannot take for granted that police will strictly limit their own use of surveillance data to protect the public's right to privacy.

2.3.5 Recommendation: Police should never be authorised to sign their own warrants. Nor should warrants cover targets without suspicion.

2.3.6 Recommendation: The right to hack innocent persons without suspicion, to acquire non-public data on persons without suspicion, and so forth, should be limited to National Security only and subject to serious oversight.

2.4 PRIVACY CONCERNS

2.4.1 Recommendation: No agency, except for policing and intelligence, should have access to private data.

3 MINOR ISSUES

3.1 USE OF THE TERM "COMMUNICATIONS DATA"

3.1.1 The phrase "communications data", referring to data about data (e.g. the time of a phonecall), is not commonly used in the technical industry. The common term is "metadata".

3.1.2 The term "communications data" could easily be misconstrued by courts, where judges, lawyers and juries are frequently unfamiliar with technical terms, to refer to the data of a communication, such as the content of a phonecall or message.

3.1.3 Recommendation: Change all instances of "communications data" to "metadata".

March 2016

 

Prepared 24th March 2016