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In May 2016, then home secretary Theresa May commissioned a review of the “operational case” for the bulk surveillance powers in her flagship Investigatory Powers Bill.
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It was an admission that the government, despite months of pre-legislative scrutiny and reams of written evidence, had failed to justify why bulk surveillance powers are necessary.
On 7 August, May, now prime minister, received David Anderson QC’s report, which assesses whether the bulk powers demanded by the government are proportionate.
Anderson, the government’s independent reviewer of terror legislation, didn’t call for submissions to his inquiry. Human rights organisation Liberty submitted anyway.
Everyone’s communications data and web browsing history will be collected
If passed, the Investigatory Powers Bill, also referred to as the snoopers’ charter, will fundamentally shift the relationship between citizen and state, allowing mass interception and mass hacking, forcing internet and phone companies to store everyone’s communications data and web browsing history, and retention of bulk personal datasets, which are population-level databases.
Given how unprecedentedly intrusive these proposals are, the least we should demand from the government is an exhaustive analysis of the core question: Is spying on each and every law-abiding citizen truly the only way to fight terror and serious crime?
Human rights laws require that secret surveillance measures can only be justified where it can be shown that they are “strictly necessary for the obtaining of vital intelligence in an individual operation”.
As the review takes place, trust in our intelligence agencies is strained. The Chilcot report heavily criticised the agencies’ culture, leadership and over-reliance on flawed intelligence. Now more than ever, an unquestioning acceptance of agency and government assurances – with no detailed evidential basis – just will not wash.
Will the Anderson Review deliver?
To be credible and effective, the Anderson Review must forensically scrutinise the operation of every practice that falls under the term “bulk” – not just inspecting evidence of claimed successes, but failures too.
It must robustly question whether, but for the scope of these powers, critical information resulting in serious offences being prevented or detected would not have been obtained – and it must provide detailed evidence and methodology to support its conclusions.
Crucially, this must include a thorough assessment of whether the same information could have been gathered using an alternate, targeted system.
There is no compelling operational case for bulk surveillance powers
Liberty’s submission laid out a thorough analysis of whether there is a compelling operational case for each of the IP Bill’s bulk powers. The answer is no. For each bulk power, an exploration of the technical options available to our spies shows that a targeted approach would do the job just as well.
Liberty has also provided an analysis of every example put forward in the government’s “operational case” – a 47-page document published with the bill. Most of these scant anecdotal examples are too vague or hypothetical to qualify as evidence, but Liberty’s conclusion in each case is the same: every one manifestly fails to prove the strict necessity of bulk powers.
Why targeted surveillance is a better alternative
All aims are, or could be, met by targeted methods – collecting and storing data on known suspects and their social networks, visitors to websites hosting illegal content, and conflict zones. By defining zones of suspicion and gathering intelligence from within them, you create rich, relevant, manageable data that leads to the rapid discovery of targets and threats.
The Investigatory Powers Bill is in the last stages of parliamentary scrutiny, but it’s not too late to turn the tide and move toward targeted surveillance that would better keep us safe and respect our human rights.
Sadly, the government has granted little time for the review, and thereby reduced the pool of witnesses available to Anderson to those who already have security clearance. A panel tasked with this sort of inquiry must be seen as institutionally independent of the security and law enforcement agencies. That his three-person team includes former GCHQ and National Crime Agency directors casts doubt on this.
Anything less than a thorough, comprehensive and procedurally irreproachable review will do a disservice to this important public debate. But, by undermining due process from the start, the government has set the panel what looks like an impossible task.