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The Court of Appeal has ruled that the government’s surveillance regime is unlawful, in a decision that could force a major rethink of the Investigatory Powers Act and impose tighter controls on the government’s access records of the population’s browsing, email and phone use.
The controversial act, known as the Snooper’s Charter, allows a wide range of government bodies to access the private data of individuals without suspicion that they are involved in serious crime, and without prior approval from a court or independent watchdog.
The case, part of a long-running legal challenge brought by Labour MP Tom Watson against the Data Retention and Investigatory Powers Act (DRIPA), is likely to force a rethink of the Investigatory Powers Act.
“The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data,” said Watson after the verdict.
In a 10-page judgment, the Court of Appeal ruled that it is unlawful for the government to access private communications data retained by phone companies and internet service providers, for reasons that fall short of fighting serious crime, or without a prior review from a court or an independent watchdog.
In November last year, the government proposed a series of amendments to the Investigatory Powers Act – which are now out for public consultation – in an apparent move to pre-empt the court’s decision by introducing new restrictions to government surveillance.
The proposals limit the ability of senior police officers, and officials at the Department for Work and Pensions and HM Revenue and Customs, to authorise their own access to communications data, requiring permission from a new authorising body, the Office of Communications Data Authorisation.
The government also plans to restrict police and other public bodies’ access to communications data for investigations into crimes that carry a prison sentence of at least six months, rather than the usual three-year threshold for serious crime.
But the proposals are likely to face further legal challenges after today’s judgment, amid widespread criticism from human rights groups that the government’s plans in effect rewrite the definition of serious crime, allowing surveillance to continue with the addition of only minimum safeguards for privacy.
“The government has defined serious crime out of existence,” said Corey Stoughton, advocacy director of Liberty, which is backing the case. “It has always been understood that when terrorism or a mass shooting is involved, you subjugate privacy to national security. The notion that you extend serious crime to include everything except parking offences or jaywalking is breathtaking.”
Further legal challenges
The court decided not to rule on a series of further challenges to DRIPA brought by Tom Watson and Liberty, opening up the way for further legal challenges to the Investigatory Powers Act in the future.
Lord David Lloyd-Jones said in the judgment that there was “considerable” uncertainty over whether DRIPA contains adequate safeguards against communications data leaving the EU.
This would be a matter for the Court of Justice of the European Union to decide, following a referral by the UK’s secret surveillance court, the Investigatory Powers Tribunal, he said.
The questions of whether government agencies are required to give notice to people when their data is accessed and retained, and whether the government is using an overly broad definition of national security to legalise access to a wider range of public data, will also be subject to further court challenges.
Liberty said it plans to raise these points in an ongoing legal action against the government over the Investigatory Powers Act.
The act allows the security services, MI5, MI6 and GCHQ, and a wide range of government bodies access to personal internet and phone communications data, if it is in the interests of national security – a definition that also includes “economic wellbeing,”, said Stoughton.
“It is hard to say how wide this exemption is, as there is so much secrecy,” she said. “There is reason to be concerned.”
The Open Rights Group, a campaigner for privacy and online free speech, urged the government to admit that its surveillance legislation is flawed and to make changes to protect the public’s fundamental rights.
“The Investigatory Powers Act carves a gaping hole in the public’s rights,” said Matthew Rice, spokesman for the Open Rights Group. “Public bodies are able to access data without proper oversight, and access that data for reasons other than fighting serious crime. These practices must stop – the courts have now confirmed it.”
The Internet Service Providers Association, which represents ISPs, said it is imperative that the government acts on the court’s ruling.
“The legislative framework in this area has long been contentious and the passage of data retention powers has been fraught with challenges over the years,” it said. “During the passing of the Investigatory Powers Act, we and others called for a legal framework that would comply with existing rights and rulings so that it would not be revisited on a regular basis.”
Liberty said the court’s decision is a signal that the government should rethink the Investigatory Powers Act, and impose limits on the way it accesses and retains data.
“This is the latest in a series of rulings that have constrained the UK’s surveillance regime,” said Stoughton. “Every time a court looks at the surveillance regime, it finds a new problem, and the government has to rewrite the Investigatory Powers Act. That is going to keep on happening because the legislation was flawed to begin with.”
Responding to the judgment, security minister Ben Wallace said communications data has been used in the vast majority of serious and organised crime prosecutions and every counter-terrorism investigation by MI5 over the past decade, and is often the only way to identify paedophiles involved in online abuse.
“This judgment relates to legislation which is no longer in force and, crucially, today's judgment does not change the way in which law enforcement agencies can detect and disrupt crimes,” he said.
Wallace said the government would continue to defend “vital” surveillance powers “which parliament agreed were necessary in 2016”, in ongoing litigation.
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