SNOOPING LAWS

The announcement of a new surveillance law has fostered the suspicion that a voracious security state is elbowing aside the rights of civilians to communicate in private. There may well be cause for mistrust – but such concerns lie in the manner of the law’s introduction, and much less so the provisions it contains.

The UK Government justifies bringing in ‘emergency’ legislation as it intends to keep a full-blown register (a ‘who’s who of public enemies) that will shore up the power of government bodies to gather data on British citizens.

This is a law which has been agreed upon in principle by party leaders at Westminster behind closed doors. The speed of its introduction has raised many eyebrows, not least because this is a process that has not been open to public consultation and one which clearly adds to the impression that the Government is seizing for itself unwarranted powers.

In reality, though, the ‘emergency’ being enacted upon is more banal. In a few years, the law may actually benefit the libertarian cause. The exact cause for adopting parliamentary legislation in the first place is down to a legal case launched by the Open Rights group. Although the organisation is temporarily dormant, it has been made active following an April ruling from the European Court of Justice (ECJ). That ruling would have lifted the requirement for telecommunications companies to keep a wide range of billing data on their customers for a period of 12 months.

Keeping this data available to the authorities is the reason for instigating emergency legislation. This is preferable than to suddenly ‘going dark’, and appears to require no immediate development in changing the status of our security. Important concessions have been conceded: an independent privacy and civil liberties board is to be created, and there will be a review of the Regulation of Investigatory Powers Act (RIPA). This sets the limit on digital surveillance. The emergency amendments will also expire in 2016, so that new laws can be created once the review has been completed and appraised.

Some critics argue that what we need is smarter surveillance, not yet more of it. This far reaching extension of government spying on our daily lives, they say, would be illiberal and possibly ineffective.

Since this Bill is also about interception (and not just retention of data) many people will want to know what the additional protections will be if we are to have any confidence in such powers. One requirement is greater transparency so that we know how and why this data is being used. Government openness around surveillance can be improved without compromising security.

The Government has promised an annual transparency report. The concerns of libertarians will be whether it is sufficiently comprehensive, but that can only be deduced once the full details are known. In his annual report, the Interception Communications Commissioner, Sir Anthony May, said: ‘The unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.’ Sir Anthony also expressed ‘considerable sympathy’ with those who are hazy and unsure about the details and implications of snooping legislation.

The Government has made a strong case for law enforcement agencies to be given access to communications traffic (which precludes its content as this would require a warrant) in the investigation of serious crime and terrorism.

The Coalition remains divided over how wide the new powers should be. The Prime Minister has indicated that he favours revisiting the option of wider snooping powers, but Nick Clegg remains opposed. But however surveillance legislation evolves it is right that a sunset clause exists in the Bill to curtail its powers in 2016. That forces a renewal by the next Parliament – but only after a wider democratic debate about how best to strike the balance between privacy and security.