Why police forces need to be honest about mass mobile phone surveillance

Police stonewall on mobile phone surveillance

Constabularies have denied freedom of information (FoI) requests, but they have gone further to stifle public debate.

Police and crime commissioners have a legal duty to publish spending reports monthly for their respective forces, but in the months following the initial investigation, 30 police forces temporarily stopped publishing monthly spending data giving details of the contracts they award, and have since revised what information is published.

In the case of Avon and Somerset Constabulary, the police and crime commissioner openly stated that the spending data had been taken down from its website and redacted in the interests of “national security” in response to the investigation.

This stonewalling suggests that neither journalistic inquiry nor freedom of information requests by concerned citizens will, on their own, open the door to transparency. Consequently, The Bristol Cable took the decision to turn its investigation into a national campaign to press for change.

The campaign seeks clarity to some fundamental questions:

• In what circumstances are IMSI-catchers used?
• Which authorities operate them?
• How are innocent people safeguarded from this intrusive surveillance technology?

A 2016 investigation by technologist Richard Tynan found evidence of the use of IMSI-catchers in London, including at a large, public, anti-austerity demonstration and outside the Houses of Parliament. The charity Liberty has expressed concern that IMSI-catchers could be being used to target protestors, particular communities and places of worship.

Government silent on mobile phone monitoring

The indiscriminate, dragnet nature of IMSI-catcher technology, which intercepts the data of all mobile phones within an area of several kilometres, is unlikely to be proportionate or justifiable in law. It is therefore concerning that Parliament has not been consulted on the use of IMSI-catchers and that relevant statistical data or governing policies have not been published.

A parliamentary briefing by The Bristol Cable – with guest contributions from Angela Patrick, barrister at Doughty Street Chambers, and Silkie Carlo, then advocacy officer at Liberty (now at Big Brother Watch) – lays out the uncertain legal basis for the use of IMSI-catchers and the need for urgent transparency.

Thangam Debonnaire, MP for Bristol West, has submitted written questions to the Home Office seeking clarity on which forces own and operate IMSI-catchers and what guidance governs their use.

The response was vague and shed nothing new. Nick Hurd MP referenced the Police Act 1997 and the Intelligence Services Act 1994 as the relevant governing legislation, and the investigatory powers commissioner as tasked with oversight. However, Hurd failed to confirm the technology’s mere existence, or to specify which forces owned or operated it.

With crime growing increasingly sophisticated, police are turning to innovative technology. But can the police and security services legitimately stay silent about their capabilities by claiming transparency will harm operations? Internationally, IMSI-catchers have already been dubbed “law enforcement’s worst-kept secret”.

In recent years, there have been a string of damning revelations about illegal or controversial police surveillance powers, with police spying infringing the civil liberties of journalists, parliamentarians and campaigners.

Definition of serious crime is too broad

These cases have also raised concerns over how IMSI-catchers could be misused. And yet, the issue here is less of police misconduct. Rather, the primary issue is one of a turbulent political climate changing the legislative definitions of extremism and serious crimes, which surveillance capabilities only enhance.

Take the Investigatory Powers Act (IPA), also known as the snoopers’ charter. It limits surveillance by police and government agencies to “serious” crimes. However, Angela Patrick writes in the parliamentary briefing that these crimes are “broadly defined to include offences carrying a sentence of over three years’ imprisonment, or any violent crime or crimes done for unspecified ‘substantial’ financial gain or where conduct is by a large number of persons in pursuit of a common purpose”.

Patrick highlights that group conduct is covered, meaning that police and agencies might seek to rely on these powers for the investigation of public order offences arising from protest activities.

Meanwhile, any investigation of violent crime or financial crime for “substantial gain” will also open the door to the IPA. This threshold is less stringent than it might first appear, placing only limited restraint on state surveillance.”

With the goalposts of justice in flux, one cannot be confident that institutionalised checks and balances will protect civil liberties. As Cardinal Richelieu, the 17th century French clergyman, incisively wrote: “If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.”