Public authorities set to receive expanded surveillance powers

The UK government is seeking to further expand mass surveillance powers to allow five additional public authorities to obtain communications data.

According to a memorandum explaining the purpose and effect of the Investigatory Powers Regulations 2020, public authorities will gain these powers “as they are increasingly unable to rely on local police forces to investigate crimes on their behalf”.

The new authorities are the Civil Nuclear Constabulary, the armed police force in charge of protecting civil nuclear sites; the Environment Agency; the Insolvency Service; the UK National Authority for Counter Eavesdropping (UKNACE), an anti-espionage service; and the Pensions Regulator.

“To protect national security and investigate serious crimes, law enforcement and relevant public authorities need the ability to acquire communications data,” said a Home Office spokesperson.

“These powers are only used where it is absolutely necessary and proportionate and are independently authorised by the Office for Communications Data Authorisations, except in urgent or national security cases.”

In response to questions from Computer Weekly about why the authorities in question are increasingly unable to rely on local police, and whether the changes would be rolled back after these forces regained capacity, the Home Office said the organisations have specialist knowledge and are therefore better equipped to obtain the relevant communications than local police.

At the moment, only public bodies listed in Schedule 4 of the Investigatory Powers Act 2016 (IPA), colloquially dubbed the Snoopers’ Charter, are able to obtain communications data, which includes the metadata but not the contents of a communication.

The new powers have been put forward as a draft statutory instrument, a form of legislation that allows Parliament to introduce new provisions into existing laws without having to pass a completely new Act.

This means the regulations will still need to be debated by both MPs and peers before they come into effect.

The memorandum said: “A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.”

The government has already eased the IPA’s restrictions on mass surveillance this year with the passage of the Coronavirus Act 2020 in late March, which confers regulation-making power on the home secretary to change the warrant-issuing procedures.

Previously, a warrant had to be signed by the relevant secretary of state and then approved by a judicial commissioner for it to be lawful. Now, the home secretary can allow the investigatory powers commissioner to directly appoint temporary judicial commissioners for terms of no more than six months.

The new powers also allow the home secretary, at the request of the investigatory powers commissioner, to extend the ex post facto authorisation period of a warrant for up to 12 working days, effectively quadrupling the previous time review limit.

The government’s own summary of impacts statement said urgent warrant extensions could lead to increased interference with citizens’ Article 8 rights to privacy, “but it is judged to be necessary and proportionate in the circumstances”.

Last year, a series of heavily redacted documents disclosed in court revealed that judicial commissioners had issued warrants for bulk surveillance after MI5 wrongly briefed them that it was meeting the data-handling obligations required under the IPA.

The documents revealed that MI5 had failed to protect legally privileged material and other key safeguards, resulting in “serious compliance gaps”, according to the then investigatory powers commissioner, Adrian Fulford.