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The Home Office believes the legislation is necessary to protect the country’s national security, and that it has sufficient oversight for the surveillance powers it gives, but civil rights groups have said the powers are draconian and too intrusive.
The IP Bill grants intelligence agencies the ability to obtain and use bulk personal datasets that will include mostly individuals who are not suspected in any wrongdoing.
In August 2016, a report by David Anderson, Queen’s Counsel, said there was no alternative to the controversial bulk surveillance powers proposed in the bill, but Liberty said there was no compelling operational case for each of the IP Bill’s bulk powers.
For each bulk power, Liberty said, an exploration of the technical options available to UK law enforcement and intelligence agencies shows that a targeted approach would do the job just as well.
In December 2016, the European Court of Justice (CJEU) in Luxembourg ruled that the retention of communications data for 12 months is unlawful.
The ruling was related to a case orginally brought against the Data Retention and Investigatory Powers Act (Dripa) by Labour member of Parliament Tom Watson and current Brexit secretary David Davis – although Davis withdrew his name from the action after his elevation to the Cabinet in July 2016.
Dripa ruled ‘unlawful’
In 2015, the UK High Court found parts of Dripa to be unlawful and incompatible with European law, in response to which the government appealed and the case was then referred to the CJEU.
In its judgment, the CJEU found that European Union (EU) law precluded national legislation that prescribed general and indiscriminate retention of data.
It said blanket data retention was not allowed, that an independent body must authorise any access to data, that only the data of those suspected of serious crimes could be accessed, and that those who had their data accessed must be notified.
Responding to the ruling, Liberty, which represented Watson’s case, said the judgment upheld the right of ordinary people not to be spied on without good reason, and called on the UK government to make urgent changes to the IP Act to comply with the ruling.
A Home Office spokesperson said: “We are disappointed with the judgment from the European Court of Justice and will be considering its potential implications.
“It will now be for the Court of Appeal to determine the case. The government will be putting forward robust arguments to the Court of Appeal about the strength of our existing regime for communications data retention and access.
“Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public.”
Act an ‘assault on freedom’
But determined to force the government to reconsider, Liberty is calling for public donations via crowdfunding platform CrowdJustice to raise £10,000 by midnight on 8 February 2017 to seek a High Court judicial review of the core bulk powers in the Investigatory Powers Act.
Martha Spurrier, director of Liberty, said: “In 2016, this government exploited fear and distraction to quietly create the most extreme surveillance regime of any democracy in history. Hundreds of thousands of people have since called for this act’s repeal because they see it for what it is – an unprecedented, unjustified assault on our freedom.
“We hope anybody with an interest in defending our democracy, privacy, press freedom, fair trials, protest rights, free speech and the safety and cyber security of everyone in the UK will support this crowdfunded challenge, and make 2017 the year we reclaim our rights.”
The controversial legislation received royal assent in December 2016, just days after a petition opposing the planned legislation topped the 100,000 signatures that should have triggered a parliamentary debate. The number of signatories has since reached more than 206,000.
In a bid to force the government to change the law, Liberty plans to challenge the lawfulness of bulk powers to hack into devices, intercept communications and acquire communications data and internet history without requiring suspicion of criminal activity.
Experts say government has failed to listen
Information security experts have repeated raised concerns about collecting and storing communications data for 12 months, as required by the act.
These provisions have raised concerns about how this data will be protected. “Aside from the arguments around privacy, which are extensive and valid, it’s also a huge security risk,” said Ed Macnair, CEO of cloud security firm CensorNet.
Responding to news that the controversial legislation had been passed, security firm Sophos said the government has failed to address data security issues raised by security and technology firms.
John Shaw, vice-president of product management at Sophos, gave evidence at the Science and Technology Committee hearing about the draft bill in November 2015.
He said all complaints since the beginning of the consultation process about the government’s ability to force internet service providers (ISPs) and other tech companies to keep a years’ worth of records about all customers’ surfing habits have “fallen on deaf ears”.
Read more about the IP Act
- Labour’s shadow home secretary Diane Abbott says wider society must now debate the controversial Investigatory Powers Bill, despite Parliamentary approval.
- As the Investigatory Powers Bill goes through its final stages in Parliament, a former GCHQ intelligence officer puts the case for the bulk surveillance powers contained in the legislation.
- Former NSA technical director Bill Binney talks about the Investigatory Powers Bill and the UK government’s independent review of bulk surveillance powers.