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RUSI surveillance review calls for clearer UK interception legislation

The latest surveillance review calls for a new, comprehensive and clearer legal framework in the UK to provide a fresh start on a basis of mutual trust

An independent review has called for a fresh start in the law for interception of communications in the UK, saying a new, democratic licence to operate is needed.

The report, entitled A democratic licence to operate and commissioned by former deputy prime minister Nick Clegg, is based on investigation and consultation in the past year by the Royal United Services Institute (RUSI).

The report, which has been presented to prime minister David Cameron, shows how a democracy can combine a high level of security with respect for privacy and freedom of speech.

The authors of the report have called on government, civil society and industry to accept the report’s recommendations and work together to put them into practice.

“Despite the disclosures made by Edward Snowden, we have seen no evidence that the British government knowingly acts illegally in intercepting private communications, or that the ability to collect data in bulk is used by the government to provide it with a perpetual window into the private lives of British citizens,” the report states.

However, the report’s authors said they have seen evidence that the present legal framework authorising the interception of communications is unclear, has not kept pace with developments in communications technology, and does not serve either the government or members of the public satisfactorily.

In the light of these findings, the report said a new, comprehensive and clearer legal framework is required to provide a fresh start on a basis of mutual trust in the key principles the review sets out.

The report’s authors include RUSI members from the fields of investigative journalism, the internet, law, policing, political life and moral philosophy. The review panel also included former heads of the three UK intelligence and security agencies.

The report calls for a radical reshaping of the way that intrusive investigative techniques using the internet and digital data are authorised that is fully compliant with the human rights framework.

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It recommends a strengthening of the present system of safeguards by requiring requests for interception for the prevention and detection of serious crime to be authorised by a senior judge, and that the warrants signed by secretaries of state for purposes relating to national security – including counter-terrorism – all come under judicial scrutiny as detailed in the report.

The review examined the powerful digital techniques available to the intelligence agencies and police, and accepts that they are needed. However, the report’s authors said the state should always be reluctant to invade the privacy of its citizens in an open society and that it should never be a matter of routine.

The report highlights inadequacies in law and oversight and calls for urgent new legislation to provide a new democratic mandate for digital intelligence.

'Golden opportunity'

According to the review panel, the present arrangements are too complex to be understood by the citizen and have contributed to a public credibility gap that must be addressed.

The report sets out 10 tests that any new legislation must pass before it can be regarded as giving the police and the intelligence agencies a democratic licence to operate.

Review panel chairman Michael Clarke said the report provides “a golden opportunity” for government to make a fresh start by introducing legislation that provides a clear and legally sound framework within which the police and intelligence agencies can confidently operate, knowing that at all times they will be respecting human rights.

“There is at present no shortage of mechanisms that regulate the way the government runs interception programmes, but they are complicated, overlapping and in some cases, creaky. There is a manifest need for new legislation. We have outlined 10 tests that people in Britain should apply when they hear what the government proposes. If government proposals genuinely meet these criteria, the new legislation will be able to address justifiable public concerns, and also allow the police and intelligence agencies to get on with their job,” he said.

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UK citizen Kevin Cahill, who mounted legal challenges against Facebook, Microsoft and Google after Edward Snowden named them as contributors to the US Prism surveillance programme, said the report is a valuable advance in the public understanding of what UK secret surveillance is about.

“The report acknowledges the role of Edward Snowden, who is, however reluctantly, admitted as the hero of the project; without Edward Snowden, no report. Like David Anderson’s recent report on proposed surveillance legislation, the RUSI report acknowledges the appalling state of the laws relating to security and surveillance in the UK,” he said.

If UK citizens cannot understand a law, they cannot be expected to obey it, Cahill told Computer Weekly.

However, he said the report failed to examine Prism, which he describes as the US National Security Agency’s surveillance programme in the UK.

“The report merely notes that the US had acknowledged that it is operational. The next step was simple and never taken. Is it operational in the UK? The answer is yes. And is it legal? The answer is no,” said Cahill, who has called for the full revelation of what Prism is in the UK.  

Investigatory Powers Bill

Reports on surveillance in the UK by RUSI, Anderson and parliament’s Intelligence and Security Committee (ISC) are aimed at guiding the UK government’s formulation of legislation designed to give police and intelligence agencies more power to monitor online communications. 

In May 2015, the government announced the proposed Investigatory Powers Bill in the Queen’s Speech, which it said will “modernise” the law on communications data.

Civil liberties groups such as Big Brother Watch have welcomed the ISC, Anderson and RUSI reports, but called for wider parliamentary and public debate on the issue.

Big Brother Watch cheif executive Renate Samson said the RUSI report’s conclusion that privacy is not just a balance to security, but a vital component of society, is significant.

“Privacy concerns should not be seen as a burden by those in power, but as an essential addition to democratic debate,” she said.

According to Samson, with the recommendations of the ISC, Anderson and RUSI reports echoing one another in their calls for change, it is clear that the status quo is no longer acceptable.

“We support a number of the recommendations; including scrapping the current outdated patchwork of legislation, the judicial approval of warrants, a clearer and beefed-up method of redress, reform of the MLAT [mutual legal assistance treaty] process and the introduction of a new, technically adept and fully supported oversight regime,” she said.

In light of the analysis given by the three reports, Samson said there is no excuse to rush through ill-considered laws. “Proper consideration must be given to ensure that a balanced regime is established which protects our privacy, security and the future economic well-being of the country.”

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