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On the 15th March 2016, Parliament debated the contentious Investigatory Powers Bill. The Bill, otherwise known as the Snooper’s Charter, greatly expands the powers of British security services. This expansion should not be underestimated. MPs in the Commons debate noted that if this legislation were to be passed in its current form, it would be the most intrusive surveillance of any liberal democracy – even the United States. Among other widened powers, bulk data collection is authorised in the Snooper’s Charter. In layman’s terms, this allows the Government to store every internet interaction of everyone in Britain for 12 months, representing an enormous cost to individuals’ right to privacy. Mass domestic surveillance is truly overstepping the limits of State authority.
The Right to a Private Life
Article 8 of the European Convention on Human Rights enshrines the right of everyone to a private and family life, and is mirrored by Article 17 of the International Covenant on Civil and Political Rights. Provisions are made here for the interference of public authorities in privacy on grounds of national security, public safety and economic wellbeing to name but a few. Limitations to this right, however, are subject to the usual conditions of necessity and proportionality. Mass surveillance fails both of these tests.
The United Nations Special Rapporteur on the Right to Privacy, Joseph Cannataci, recently passed comment on the Bill. He stated that indiscriminate bulk collection of data was contrary to the standards of several UK Parliamentary Committees, the jurisprudence of both the European Court of Justice and the European Court of Human Rights, the UN’s Counter-Terrorism and Privacy reports and the very spirit of the right to privacy itself. This reads like a shopping list of ignored advice, and prompted Cannataci to dub the Bill “worse than scary”.
The necessity of monitoring every single individual’s internet records on grounds of national security or public interest is absurd. Its proportionality is therefore almost not even worth addressing. Both rest on the assumption that mass surveillance protects the nation from threat, and this is an assumption which must be challenged.
Drowning in Data
I recently had the privilege of attending a talk by journalist and whistleblower Duncan Campbell and ex-senior National Security Agency (NSA) official Bill Binney. Bill worked for the intelligence services across the pond for thirty years, and had astonishing insight into the world of security intel. Duncan was the first person to discover the existence of the Government Communications Headquarters (GCHQ) in the 1970s, the British equivalent to the NSA.
Into a tiny room at the University of Sussex limped Bill, supported by a crutch and with noticeable lesions on his head and arms. It was as if his body was sagging under the weight of nearly half-century of State secrets. Duncan was quiet and seemed fairly shy until he was asked questions about surveillance, at which point he exploded into life. Needless to say, both men regaled the room with extraordinary tales of State snooping on both sides of the Atlantic. We were assured that mass data collection was nothing new, and that the Investigatory Powers Bill was simply an attempt to legitimise the previously secret surveillance on a massive scale that was exposed by Edward Snowden in 2013. While this may sound abstract and conspiracy-theorist, the reality is far closer than we might think. One of the largest bulk collection cables for mass surveillance in Europe lies less than five miles south of Your Rights Matter’s base, beneath the waves under Brighton Pier.
Both Bill and Duncan expressed grave concerns with the Snooper’s Charter and the effectiveness of bulk data collection. The duo proceeded to explain that mass surveillance drowns data analysts in such enormous quantities of information that they simply cannot cope. This kind of monitoring provides almost no actionable intelligence, as no distinction is made between the mundane and innocent internet communications of the vast majority of the public and those communications which warn of a potential threat to national security. Bill wryly observed that of the swathes of data that analysts receive, “99% is useless. Who wants to know everyone who has ever looked at Google or the BBC? We have known for decades that that swamps analysts.”
Going one step further, the duo claimed that this lack of actionable intelligence may actually cost lives. Despite the existence of mass surveillance, terrorist attacks still occur. Bulk data cannot prevent such attacks, because wading through the mire of billions of internet records is simply impossible. Duncan noted that after the attacks in Paris, Copenhagen, Woolwich and London, State authorities were quick to say that they had prior knowledge of the culprits, yet had no power to stop them. The focus of mass surveillance appears to be on retrospective analysis – once an attack has been carried out, the security services can dip into their vast archives of citizen’s internet communications in order to chase those responsible. In other words, the United Kingdom is sacrificing the privacy of every single individual on its shores in order to say ‘I told you so.’
Traditional targeted surveillance of known individuals, for both Bill and Duncan, was not only less intrusive than bulk data collection but also more effective. Most of the thwarted attacks on national security that make it to the press are attributed to this form of monitoring, which functions due to its relative lack of data compared to mass surveillance. Bill notes that targeted surveillance “provides a rich environment of information to figure out what attacks are going to happen – it’s cheaper and of course less intrusive.” The assumption of mass surveillance’s effectiveness is false, and negates its necessity. It is also disproportionate to this false necessity, as both Bill and Duncan agree that less intrusive measures are also ultimately more effective. The Investigatory Powers Bill as it stands is consequently an arbitrary limitation of every individual in the country’s right to privacy.
What Next?
The Investigatory Powers Bill passed through the first stage of voting at the Commons by 266 on March 15th. An overwhelming number at first glance, but only so high because both Labour and the SNP elected to abstain, preferring to wait for amendments to the bill before their votes are ultimately cast. Despite the breakneck speed at which the legislation is being pushed through Parliament, it was reassuring to hear serious criticism from MPs on either side of the aisle. Particularly reassuring were the comments from ex-Home Secretary Ken Clarke and ex-Attorney General Dominic Grieve, both of the Conservative party, who although backing the bill stated that they would need to see dramatic improvements in its privacy protection.
The issue, however, is far bigger than bipartisan politics. Should it pass in its current form, its mass surveillance authority truly would affect us all. The Snooper’s Charter, to borrow from Bill Binney, trades off 100% of privacy for 99% useless information. It weighs the civil liberties of the overwhelming majority of innocent Britons against national security threats which it still would not be able to prevent, and tips in the latter’s favour. It is so important to keep an eye on the evolution of this bill. Theresa May will certainly be keeping an eye on you!