Posted by Joseph Saviri on June 17, 2015.
“Doubt is an uncomfortable condition, but certainty is a ridiculous one.”
Like many, I came away from reading the Report on the Investigatory Powers by David Anderson QC, impressed by the thoroughness with which the entire review was undertaken (‘Anderson Report’). The Anderson Report can be regarded as being successful in achieving two goals – (i) providing a sound theoretical and principled framework for forthcoming conversations on the role, value and limits of surveillance in a democracy; and (ii) the identification of measures that need to be implemented to ensure that our surveillance laws are appropriate for the digital age. It is particularly helpful to find in one document a lucid and analytical account that sets out the technological context for the twin public policy goals – safeguarding citizens and ensuring that citizens liberties are not compromised by breaches of their privacy. National security is a subject that makes regular media appearances and with good reason. There has been much anger, uncertainty and confusion originating from Snowden’s disclosures relating to the unwarranted intrusions by Security and Intelligence agencies into citizens privacy under the mantle of “national security”. The Anderson Report goes a long way towards reflecting public concerns about the level of intrusion engaged in by Security and Intelligence agencies in particular. Another key feature of the Anderson Report is the timely reminder to everyone that the subject of investigatory powers should not be limited to the obvious group of actors and personnel. A number of organizations already possess non-RIPA powers (Annex 6) and the distinction between Law Enforcement and investigatory powers exercised by Local Authorities are increasingly becoming blurred (Annex 13). In this brief note, I want to add two additional thoughts, which look beyond the Anderson Report. First, it would be marvelous if the 124 recommendations made in the review were implemented. I am less than confident that this would materialise for no reason other than the fact that the Anderson Report is only one part of the Government’s ongoing review of the investigatory powers and capabilities of our Security, Intelligence and Law Enforcement Agencies. The Anderson Report is the second of three reviews. The Intelligence and Security Committee recently published its review of the technological capabilities of Security and Intelligence agencies within the context of the legal and privacy frameworks that govern their use. The report, entitled the Privacy and Security Inquiry (‘PSI’), is the culmination of an inquiry into the interception capabilities of Security and Intelligence agencies, and in particular the collection of communications data. Notwithstanding the elegance and persuasive reach of the Anderson Report, it is difficult to ignore some key policy directions which do not deviate from the Government’s ambitions, as set out in the Queen’s Speech. Yes, it is true that the PSI is remarkable, not least for the fact that the Intelligence and Security Committee, is now on record, and seen to publicly scrutinising “the full range of the Agencies’ intrusive capabilities.” (p.1) Both the Anderson Report and the PSI agree that there is a need to provide a coherent regulatory framework. Both reviews seem to regard bulk collection of communication data as permissible subject to safeguards. The Anderson Report will be sandwiched between the PSI and a forthcoming third review. The final review is to comprise a panel coordinated by the Royal United Services Institute and established by the former Deputy Prime Minister. The Anderson Report, it would seem, is not the final word on the subject.
The Home Secretary, Teresa May observed, the aim of the final Review is to:
report on the legality, effectiveness and privacy implications of the UK’s surveillance programmes, and assess how law enforcement and intelligence capability can be maintained in the face of technological change.
My second observation relates to the first and the extract above – what are we trying to achieve from all three reviews? I am not sure whether we have really grappled with the question of what we expect from our Security, Intelligence and Law Enforcement and other public agencies. Both PSI and the Anderson Report, seem to accept that collection of information and/or surveillance is the norm, subject to suitable safeguards. I have some doubts about this. Interestingly, it is the debates and arguments surrounding the collection of bulk data that epitomises the critical tension between whether probable cause is needed ex ante or ex post with safeguards. To say, that our Security and Intelligence agencies require more access to our communication data, for the simple reason that there are heightened risks and there is a possibility (however remote) that it may prove to be beneficial sometime in the future, is unlikely to encourage restraint from Government’s – recent events such as Plebgate and Leveson Inquiry show how easily investigatory powers can be easily overreached.
Where do we go from here?
If these independent reviews are to serve a broader objective in raising national consciousness and promote greater engagement with society, there is much work to be done by everyone to ensure that this actually happens. My fear is that newspapers and media may end up framing the issues identified in the Anderson Report relying on anecdotes, high profile incidents and scaremongering and prevent a proper and informed debate taking place. Neither should we take the view that providing ready access to our personal information promote security and reduce risks. How should we initiate the conversation? This is indeed a challenge, given that the Anderson Report noted the general apathy amongst the UK population about Snowden and its significance for the growing power imbalance between the State and its electorate? I am in no position to provide an answer but I want suggest a starting point in the quest to begin the conversation we should be having. The Anderson Report provides a clue:
There is much to commend David Anderson QCs use of trust as a lens through which we think about the intractable subject of national security and privacy. It is easy to be attracted to the word ‘trust’ – it evokes a relationship which is consensual and underpinned at least by mutual respect and confidence. But there is a premise in the title to the Anderson Report that merits reflection. Trust is an attractive and alluring word – reducing mistrust will enable an appropriate balance to be struck between the privacy and security interests. For example, unauthorised intrusions by law enforcement without probable cause can reduce confidence amongst citizens. Targeting particular individuals on the grounds of race or religion, can lead to concerns about discrimination and thereby undermine trust. It makes sense to think of safeguards ensure that trust is not abused. However, are there not some forms of intrusions, which undermine human development and values? This is not the time or place to argue for the reasons bulk collection of metadata offends human rights principles and values but there is a real need to drill into these questions.
My wishlist, is that the principles outlined in the Anderson Report continue to remain in the forefront of debates regarding surveillance law reforms. All aspects of investigatory powers and technological capabilities must be subjected to rigorous scrutiny if accountability is to be maintained. Transparency will address any concerns about misuse and surveillance creep. Transparency and accountability will also enhance trust. It is my wish that all surveillance powers, investigations or activities, to the extent that they are appropriate, be based on careful, evidence led assessment of both risks to national security and impact on citizen’s liberty. The Anderson Report provides us with a number of principles that aspires towards a principled framework appropriate for the present age. Readers may wish to consider whether we should hold our elected Parliaments to higher standards and require them to to endorse the International Principles on the Application of Human Rights to Communications Surveillance. It seems a real irony that just as there is a growing outcry in the United States, regarding the legitimacy of bulk collection of communications data by Security and Intelligence agencies, that our recent elections had little or no debate on the growing surveillance State.
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