The Investigatory Powers Bill: keeping a watching brief

In the words of the illustrious spymaster Ian Fleming in Casino Royale: “History is moving pretty quickly these days, and the heroes and villains keep on changing parts.”

Legal reform is afoot in the collection and use of data and communications by the police and security agencies (that is, MI5, MI6 and GCHQ) for intelligence-gathering and law-enforcement purposes. The controversial Investigatory Powers Bill, nicknamed the ‘Snooper’s Charter’, is subject to final parliamentary scrutiny by the House of Lords this autumn. The Bill will replace the existing law on interception, the Regulation of Investigatory Powers Act 2000.

The background

The existing law on interception, the Regulation of Investigatory Powers Act 2000 (‘RIPA’), is acknowledged as being no longer fit for purpose, sometimes referred to as ‘analogue legislation in a digital age’. Yet the draft Investigatory Powers Bill is controversial, generating fervent debate about the need to balance the right to individual privacy with the requirement of the police and security intelligence agencies to obtain targeted access to information for investigations, often in the context of terrorism and organised online crime.

The Bill was introduced to the House of Commons in spring of this year. Following a successful transit through the Commons in the summer, the Bill is now being considered by the House of Lords.

Key provisions

The key powers proposed in the Bill are as follows:

• Interception: Powers to intercept communications (bringing together the powers in RIPA and the Wireless Telegraphy Act 2006). Interception is the ability to acquire the content of communications, such as the body of an email or what was said during a telephone conversation.
• Communications data: Powers to assess communications data, being information related to particular communications – for example, the details of the sender, recipient and time and date of an email.
• Equipment interference: Power of equipment interference (sometimes known as Computer Network Exploitation or hacking) based on powers currently used by police and the security and intelligence agencies, such as accessing computer equipment to acquire private data, including communications. The current use of such powers being used already was only recently admitted openly, in the wake of the Edward Snowden disclosures.
• Equipment interference: Power of equipment interference (sometimes known as Computer Network Exploitation or hacking) based on powers currently used by police and the security and intelligence agencies, such as accessing computer equipment to acquire private data, including communications. The current use of such powers being used already was only recently admitted openly, in the wake of the Edward Snowden disclosures.
• Internet connection records: Powers to require communications service providers to log and retain Internet connection records, which give details of interactions between an individual’s device (such as a mobile telephone or laptop) and the Internet. This would include, for example, the websites, applications and services accessed, but not the specific pages visited or the specific information accessed.
• Bulk powers: Various bulk powers allowing certain public authorities to have access for specified purposes to large quantities of data. The four bulk powers deal with bulk interception, bulk equipment interference, bulk acquisition (of communications data) and bulk personal datasets (such as the electoral roll).

Many of the powers are already in use, albeit sometimes under oblique interpretation of existing legislation, and the Bill aims to clarify and enhance the existing provisions.

In addition, there is the proposed introduction of new safeguards: warrants should enter into force only after the approval by a judge; the creation of a new regulatory and supervisory body headed by the Investigatory Powers Commissioner; and additional protections for the communications of certain sensitive professions, such as lawyers, journalists and MPs.

The current status

In August 2016 David Anderson QC reported to the Prime Minister on the findings of his review focusing on the proposed use of bulk powers under the Bill, to inform the Lords’ current consideration of the Bill.

His report concluded that there was a proven operational case for the three powers already in use across the range of MI5, MI6 and GCHQ activity and a distinct operational (though not yet proven) case for the fourth power of bulk equipment interference. The report also recommended that the Bill be amended to provide for a Technical Advisory Panel of security-cleared academics and industry experts to advise on the impact of changing technology on the exercise of investigatory powers and on the availability of techniques to use those powers while minimising interference with privacy.

Conclusion

For some, the draft Bill is perceived as a Snooper’s Charter and a plan for mass surveillance. For others, it is a welcome update to law which has not kept pace with changes in technology, allowing the police and intelligence agencies to operate more effectively in our digital age in order to safeguard national security, investigate crimes and protect the public.

Few changes have been made to interception powers under the current legal framework, instead making explicit some capabilities that were previously lawful under broad, general powers. The most noticeable legislative change, however, relates to equipment interference, which remains controversial. Critics of the Bill are particularly concerned that the obligation for communication service providers to record Internet activity in the UK is an unnecessary intrusion into privacy.

The current pace of technological change is rapid, and the uptake of mobile phones and portable computers and handheld devices allowing Internet on the go has transformed the way we all communicate. It remains to be seen how much the need of security agencies to access the data and communications of a small minority, such as terrorists and criminals, will affect the communications of ordinary citizens. We await the final draft of the Bill to assess the degree to which a balance in these competing aims has been reached. It remains to be seen whether, like James Bond’s martini, we should be shaken or stirred …