Investigatory Powers Bill

Written Evidence submitted Labour Campaign for Human Rights (IPB 52)

The Labour Campaign for Human Rights (LCHR) is a human rights campaign formed of Labour Party supporters. We aim to promote human rights within and beyond the Labour Party. We have been campaigning on the issue of mass surveillance since our creation in August 2013.

Summary

1. LCHR is opposed to the Investigatory Powers Bill as it stands for the following reasons:

i. Bulk collection of communications data amounts to mass surveillance and represents a disproportionate infringement on privacy.

ii. There is very little persuasive evidence for the effectiveness of mass surveillance. In fact, most evidence suggests it is highly inaccurate.

iii. The Bill does not include sufficient safeguards to guard against misuse of its powers.

2. We recommend the following changes to the Bill:

i. Remove the sections of the Bill proposing bulk retention of internet connection records, bulk equipment interference warrants, and bulk dataset collection and replace them with provisions for targeted collection and interference.

ii. Replace provisions for bulk communications intercept with targeted intercept only, abolishing the system of general warrants and replacing them with a system of individual warrants issued on the basis of reasonable suspicion.

iii. Switch from a system of ministerial authorisation of interception warrants to a system of judicial authorisation, with a judge playing the exclusive oversight role. Failing this, ensure judges have the scope (including access to all relevant material) to conduct a full merits review of warrants rather than just examine the procedure.

The IPB’s impact on privacy

1. Part 6 of the Investigatory Powers Bill enshrines in law the sweeping powers of mass surveillance that were first revealed to the public by Edward Snowden in 2013. Instead of using individual warrants to conduct targeted surveillance on the basis of suspicion, under this system approximately twenty ‘general warrants’ are used to target entire communications systems or sections of the public.

2. Bulk data collection is highly invasive. It allows the data of millions of innocent people to be gathered and potentially examined either by computer software or human analysts. This includes information about which websites we visit, where we are located when we send messages, and the content of our emails. From this information a detailed portrait can be drawn of our lives, including about our personal relationships, financial details, health and legal issues, and daily movements.

3. The Bill also includes a new provision to allow for the bulk retention of internet connection records. This means every internet user’s browsing histories will be stored automatically by internet service providers for 12 months. Considering the variety of modern internet uses, this provides for a further intrusion into people’s daily lives.

4. The Bill allows for ‘bulk equipment interference warrants’, which could enable the security services to hack into people’s computers and mobile phones en masse. This is an additional invasive infringement on privacy.

5. The Bill contains a provision for class warrants to be used to collect bulk personal datasets, such as medical records. Obtaining this data in bulk means the records of many people not under suspicion will be included in any dataset.

Potential for misuse and the oversight system

1. The security services have a long history of misusing their powers, including in cases that have affected the Labour movement directly. For example, intelligence agencies carried out surveillance on trade unions in the 1970s and 1980s as part of "counter-subversion" activities meant to halt the spread of communism. This surveillance of the unions reached a peak during the 1984-5 miners’ strike. The security services tapped the phones of the entire national and local leadership of the National Miners’ Union (NUM), rented the building opposite the NUM’s headquarters in Sheffield in order to spy at close quarters, and bugged a hotel and restaurant frequented by top union officials. The police and security services infiltrated the union’s highest levels – in the 1970s, the NUM’s president was himself an informant for Special Branch, while a chief executive who accused the union leadership of corruption and embezzlement was later accused in parliament of having been an MI5 agent.

2. The police and intelligence services also have a history of spying on Labour politicians. The police special branch carried out covert monitoring of 10 MPs during the 1990s – all of them from the Labour Party, according to recent revelations by former undercover officer Peter Francis. Several became cabinet ministers in this period: Jack Straw, Harriet Harman and Peter Hain. The files contained personal information on the politicians’ finances and private lives.

3. Documents leaked by Edward Snowdon revealed that GCHQ, along with the NSA, have been using their mass surveillance capabilities to collect communications data from civil society groups such as Médecins du Monde and the United Nations bodies UNDP and UNICEF. In July 2015, UK’s Investigatory Powers Tribunal also revealed that GCHQ has been intercepting, accessing, and storing the communications of human rights group Amnesty International. Other notable revelations about GCHQ’s activities include evidence from the Snowden files that they have intercepted and collected millions of people’s private webcam images, targeting 1.8 millions users in one month alone. This includes sexually explicit material.

4. The IPB appears to propose a major change to the system of oversight surrounding mass surveillance. This is to switch from ministerial authorisation for intercept warrants to a ‘double-lock’ system of ministerial authorisation combined with judicial review. While at first seeming to incorporate the key proposal of the Anderson report to allow independent, judicial authorisation of intercept warrants, the proposed change stops far short of this and only allows judges to review the procedure by which a warrant is authorised.

5. Without full judicial oversight, the government is effectively signing off on its own warrant requests. No other country in the ‘five eyes’ intelligence community, including the USA, Canada, New Zealand, and Australia, uses this system. However, by giving a judge the ability to review the proportionately and necessity of warrant requests, an independent safeguard would be assured.

Effectiveness

1. There are serious reasons to doubt the effectiveness of mass surveillance. Not only is it remarkably inaccurate as a detection tool, it also diverts significant resources away from traditional methods that would do more to prevent terrorist attacks. Moreover, mass surveillance may make the fight against terrorism harder in the long run by alienating communities and contributing to radicalisation.

2. A 2009 report by the US government found that only 1.2 per cent of tips provided to the FBI by mass surveillance techniques made a significant contribution to counter-terrorism efforts. Another recent study by the New America Foundation found that National Security Agency mass data collection played a role in, at most, 1.8 per cent of terrorism cases examined. By contrast, traditional investigative methods initiated 60 per cent of investigations.

3. The technology itself is the reason for its lack of utility, being highly inaccurate. Indeed, computer scientist Ray Corrigan has written, "Even if your magic terrorist-catching machine has a false positive rate of 1 in 1,000-and no security technology comes anywhere near this-every time you asked it for suspects in the UK it would flag 60,000 innocent people."

4. Perversely, this lack of precision means mass surveillance can actually frustrate counter-terrorism efforts. Both Michael Adebolajo and the Hebdo killers were well known to security services prior to their attacks, indicating the intelligence failures were to do with lack of attention rather than lack of data. Mass surveillance means intelligence analysts are forced to spend their time sifting through a large amount of data rather than carrying out the targeted monitoring and detection that’s really needed.

5. Counter-radicalisation experts have also argued that mass surveillance may alienate Muslim communities and possibly contribute to radicalisation. In 2014, Jonathan Russell from the counter-extremism group Quilliam wrote that the "introduction of a sweeping [mass surveillance] law…will be exploited by extremists to show that the government wants to spy on its own citizens [and] that all Muslims are suspected of being terrorists."

Recommendations

1. To mitigate these concerns, we recommend the following changes to the Bill:

iv. Remove the sections of the Bill proposing bulk retention of internet connection records, bulk equipment interference warrants, and bulk dataset collection and replace them with provisions for targeted collection and interference.

v. Replace provisions for bulk communications intercept with targeted intercept only, abolishing the system of general warrants and replacing them with a system of individual warrants issued on the basis of reasonable suspicion.

vi. Switch from a system of ministerial authorisation of interception warrants to a system of judicial authorisation, with a judge playing the exclusive oversight role. Failing this, ensure judges have the scope (including access to all relevant material) to conduct a full merits review of warrants rather than just examine the procedure.

April 2016

 

Prepared 6th April 2016