12 November 2015

Nosing About In The Emails

Does the draft Investigatory Powers Bill cover all the gaps?

By John Watson

The failure by the Government to obtain parliamentary authority for the extension of the RAF’s activities in Iraq into Syria conjures up the image of targets dodging across the border like rabbits and then thumbing their noses at the boys in blue from the safe haven on the other side.  In fact it cannot be quite like that.  I have never myself commanded a convoy of lorries in the desert but getting them to the border when pursued by a Tornado doing mach1.3 and firing raptor missiles sounds quite tricky.  It might also be pointless as American planes, which are less inhibited as to geography, would probably be waiting to blast you on the other side.

However that may be, the more general point that placing unnecessary limitations on your freedom of manoeuvre can only jeopardise effectiveness must be right; it is odd, then, to see the same theme reappear in the draft Investigatory Powers Bill which was published last week.

For those who, like Sleeping Beauty, have been out of touch with the news for some time, the draft Bill – only a draft as it is put forward as a basis of further consultation – is the Government’s attempt to codify in one place all the powers of the security and law enforcement agencies to obtain information about digital and other communications.  It takes into account reviews by David Anderson QC (the Independent Reviewer of Terrorism), the Intelligence and Security Committee of Parliament and the Royal United Services Institute.  Most of the powers in the draft bill already exist in one statute or another but the hope is that bringing them together into one code will mean that Parliament will be able to consider them as a whole, that a coherent set of privacy safeguards can be incorporated and that, at the end of the day, everyone will know exactly where they stand.  The opportunity is also being taken to extend the power to force service providers to retain internet connection records for up to 12 months so that they can be accessed by the relevant agencies.

So far so good and the detail doesn’t disappoint either.  There is a careful split between the right to access communications data (e.g. who emailed whom and which websites were accessed) and the power to intercept – i.e. to read the contents.  The second is clearly the more intrusive as it would expose that unfortunate joke you made about the list of people you fancied beheading, while the first would just provide a list of your email contacts.  It is for that reason that Interception Warrants are the subject of double safeguards.  The warrant will need to be issued by the relevant Secretary of State and also authorised by a Judicial Commissioner, a judge drawn from a special team headed up by the powerful Interception and Communications Commissioner himself.

It is when you get down to “Bulk Interception Warrants” that the analogy with Syria floats to the top.  These are warrants relating to general data rather than to specific data about particular persons, premises or operations.  In other words they authorise a trawl whose purpose is to reveal the existence of communications to which access can then be sought.  Bulk warrants have to relate to overseas related communications, and both the Secretary of State and the Judicial Commissioner have to be satisfied that the warrant is in the interests of national security or of the fight against serious crime or

“in the interests of the economic well-being of the UK so far as those interests are also relevant to the interests of national security.”

However, this last ground can only be relied on if the information relates to the acts or intentions of persons outside the UK.  On the face of it this is rather odd.  Imagine:

M: “How did you hear about this wicked plan to destroy sterling, Mr Bond?”

Bond: “As 008 died, he wrote a note in his own blood on the pavement.”

M: “So we don’t know who is involved? Careless of him not to leave a full list.”

Bond: “The note just said that it was a cluster of bankers in the City using new ‘nuclear derivatives’.  We could pick them up if we used our bulk powers to call in all e-traffic with the words ‘nuclear derivatives’ in it.”

M: “Wake up, Bond, this is 2015.  We’d need foreigners to be involved for that.  You’ll just have to get the information unofficially.  Get all the heads of UK banks round a table with a pool of sharks underneath.  That should do the trick.  I certainly wouldn’t want us to exceed our rights under the Investigatory Powers Act.”

The power is clearly aimed at foreign conspirators but as there is already a requirement that the warrant has to be proportionate you wonder if it should be less restrictive.  Perhaps in the hundreds of pages of drafting something else covers the gap.  Certainly it needs to.

We will all get to understand the draft bill better as it is discussed.  It is clearly a serious attempt to give the intelligence services what they need while restricting the flow with provisions designed to protect privacy.  Still, the debate will see the civil liberties industry in full flow as they try to justify their existence and, although the Government has tried to pre-empt much of that with its reliance on the Anderson report, it is important that politicians and press stand behind it and resist the temptation to grandstand on proposals which we simply cannot afford to get wrong.  Andy Burnham, for the Labour party, has already indicated his support, and it is to be hoped that at least on this issue the two main parties will stand like brothers, shoulder to shoulder in the attempt to get the balance right.