The Labour Campaign for Human Rights organised an event at which Kier Starmer, Labour’s shadow spokesman on the Investigatory Powers Bill, he introduced himself, and pointed to his record as a Barrister where he has been involved in a number of cases prosecuting the government, the police and the intelligence agencies and his time as DPP. He says his experience shows him the “the reality of the crimes to be fought”. (This is not necessarily a scarce resource if you came to adulthood living in the UK in the eighties, or were working or travelling in London on 7th July 2005.) The rest of this article looks at the critiques made by the guest speakers and audience; it’s a piece of reporting, not a polemic, there’s plenty of those around. Basically the view in the room was it’s not fit for purpose, the new powers are too extensive, the old powers are too extensive, the proposed oversight remains too weak and the powers are not necessary, effective or proportionate. Those of us in the Labour Party can also add, the question where did this come from as Party policy.
Not fit for purpose
Starmer stated that the current proposal not good enough, but without new law we get no safeguards. He acknowledged that without the Snowdon leaks we wouldn’t be here, because neither Parliament nor the primitive and ineffective oversight bodies had a clue of the extent of surveillance going on but stated that GCHQ/MI5 actions have been legal. Personally, I dispute this and I am not alone and since some of these people are going to court, “we’ll see”.
Starmer’s first three problems are that the current proposed Bill needs improvement.
- Operational Cases, (WTF are these)? (Is this proof of “necessary and effective”)
- No definitions (powers, thresholds and safeguards)
- Internet connection records
- Also legal and journalistic privilege is not sufficiently substantial (looks like RIPA weakened journalistic privilege which had been established in PACE).
- Judicial warrants (2nd Lock vs. Equal Lock) currently the judges are being kept away from “probable cause”.
Citizens not Suspects
Sara Ogilvie from Liberty spoke next and agreed that a new law is needed. She repeated the central heart of the campaign that the law needs to be based on the principle that we’re citizens not suspects and that the intelligence agencies and the police should not be snooping on people for whom they have no legitimate interest and no independent warrant.
Sara also agreed on a need for changes to the judicial supervision clauses. It’s essential that the assessment of probable cause is not exclusively undertaken by the police and politicians. While it is proposed that the Investigatory Powers Tribunal is enhanced, it remains to weak, under resourced and insufficiently independent.
She also spoke about MP’s privilege and parliament’s ignorance until the Snowden leaks. The former is proof of the intelligence agencies overreach and the latter proof of the historic failure of parliament to supervise the intelligence agencies.
She also stated that the law says nothing about international transfers and thus places no constraints or supervision on what GCHQ gives the US, and what it gets back. This is particularly important in the light of the coming legal challenges especially the Watson/Davies case.
Jim Killock made short intervention, he spoke about the power of the Filter. (This is the snooper’s search engine) and stated that “what’s lacking is any concept of constraint?” I agree, every time I have thought surely they won’t do everyone, that the return on investment doesn’t work let alone that they should be constrained by proportionality, I have been proved wrong. As Jim said, there’s no proportionality and while talking about the accessing of the data he said that, “if it’s easy, it’ll happen”; of course it will, imagine the pressure the police and their political supervisors are on in these circumstances.
New powers to snoop
Jim was followed by Eric King of #dontspyonus. He had intervened earlier to state that he had counted 30 new powers for the intelligence agencies. This law is not just about legalising the activities we know about through Snowden but also some of those about which we are less sure. This is a problem for them; to legalise activities otherwise illegal they have to tell us about them.
Eric listed the most worrying new capabilities, as
- Aggressive Hacking
- Bulk Interception
- Bulk generation of personal data sets
- & communication acquisitions
These are explained in more detail in the document, the Operational Case of Bulk Powers., which is hosted on the Home Office’s Bill documentation page; which includes the Home Office view of the ECHR impact.
The legalisation of hacking involves the intelligence agencies being given immunity from prosecution under the Misuse of Computers Act. It also creates a conflict of interest. Good citizens report vulnerabilities. In fact the coming GDPA will make this a legal duty to report all breaches in good time. In order to exploit, without probable cause, the phones and computers of residents in the UK, or maybe other countries in the EU, GCHQ will need to keep the vulnerabilities secret. You can’t defend citizens and hack and spy on them at the same time. Furthermore, we know they can do this at scale.
Proportionate, not from this point of view
Eric stated that the intelligence agencies are processing 50bn records/day on the back of 10 warrants and 1600 cables. This is estimated to be 25% of the internet. There is no constraint. It looks as if we give them a power, and the money and they will use it. In the Q&A, the question now it seems sadly being championed by Dominic Grieve that it’s not surveillance unless it’s seen by people was raised. The searches are being conducted by computers and algorithms. It’s one of the reasons they want to build data sets of all of us, so they can see the difference between the goodies and potential baddies.
What I’d have asked?
Two questions I would have liked to ask are where do you think the justification to defend Britain’s economic security will take us. German corporate board rooms, or trade union branch meetings and national executive committees. The government are claiming that this justification is being weakened. The second question is how do you stop the baddies getting into these databases?
Encryption was raised, but evaded as was the economic impact of banning encryption and the creeping criminalisation and corruption of civil computer security research.
Necessary and effective
Eric had in his contribution raised the question of how to place a “necessary and effective” test on the powers and their use. He made the important point that many countries are walking away from these powers, firstly in the USA, but also on the mainland of Europe. In the USA, they have concluded that these powers and programmes are neither effective nor necessary. and senior US intelligence officials have told parliament so. Kier Starmer made the, in my mind inaccurate comment that the US values its privacy more. I am not sure they do, certainly not more than the children (and grandchildren) of Europe’s Stalinist & Fascist dictatorships. It’s just in the US they have visceral distrust of government.
Eric tried to take the debate onto the proposed new legal bulk capabilities, but Starmer and the audience kept returning to data retention with two contributors stating under pressure from Starmer that they could live with the data being held by private companies provided that it could be only accessed by warrant. I am unconvinced and the meeting didn’t take a vote.
Starmer asks twice how you tell the victims or the survivors of terrorist attacks or child abductions that you could have stopped if the privacy laws hadn’t stopped the police. I suppose the same as what you might say when the intelligence isn’t otherwise good enough, say 7/7. The systems aren’t invincible, and as argued by some experts may give a false sense of security.
I’ll finish on the fact that the UN’s Human Rights Chief has asked parliament not to pass this illiberal law, the most invasive in the western world because of those countries queuing up to follow this route.
Basically Starmer’s experience as a prosecutor has led to him valuing the intelligence too much. It’s possible he’s the wrong person to lead Labour’s response, particularly at a time when the front benches monopoly on short (& long) term policy development is being challenged.
The one thing to be remembered though is that Labour are the opposition, the law has been proposed by the Government and one that seems not to be listening to either its lawyers, nor parliamentary scrutiny.