Emma Carr is Acting Director of Big Brother Watch.
The debate on the Data Retention and Investigatory Bill (DRIP) was something to be witnessed, with Members of Parliament from all political parties berating or welcoming the legislation with equal measure.
Putting aside the process of the emergency legislation, the contention has been around the claim from the Home Office that DRIP does not change the status quo, as well around as the strength of the safeguards. It is the safeguards that MPs have been quick to point out when their support for DRIP has been questioned, whilst at the same time being forced to acknowledge that few details have appeared in documents currently available to the public
One such safeguard, an annual transparency report, is certainly laudable; yet in this regard the status quo is not only a problem – it represents a total failure of oversight. The Home Office has been aware for several years of statistical failings in the recording of how existing powers are used. For instance, in his latest annual report the Interception of Communications Commissioner, Sir Anthony May, stated that “the unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.” The Commissioner also highlighted the fact that the public, and indeed the Government, has absolutely no idea of how many individuals’ data has been accessed; rather we are provided with an arbitrary number of “approvals”.
Indeed, Big Brother Watch’s own research, ascertained under Freedom of Information in 2012 during the scrutiny of the Draft Communications Data Bill, found that only one police force in the entire country could quantify how existing powers were being used. The Home Office relied on a rushed two-week “dip sample” commissioned when the committee began asking questions.
Nothing in the DRIP Bill addresses this, despite the Commissioner responsible for overseeing the use of these powers saying it is a significant problem. It is also remarkable that we know far more about how the existing powers are being used thanks to the likes of Google, Facebook and Microsoft’s own transparency reports. Indeed, when the Snoopers’ Charter was considered, the suggestion was made this was because services like Skype were beyond the reach of law enforcement. Thanks to Skype’s own transparency report, it became clear that, in 2012, the UK authorities received more data from Skype than any other Government, including the US.
It is not unfair to ask why companies like BT, Sky, TalkTalk and EE have not been as forthcoming in producing similar transparency reports. The answer may well be that companies are hiding behind the criminal offence of “tipping off” – intended to cover individuals being made aware their calls are being listened to – to avoid publishing aggregate statistics. It is for this very reason that Vodafone’s recent global transparency report did not include data on the UK. The Liberal Democrat Member of Parliament, Dr Julian Huppert has therefore proposed an amendment to DRIP to clarify this – a sensible and minor change which one could even argue is not a change in the law, just clarifying existing law.
Clearly, as this example illustrates, it is not hard to see the benefits of this lack of data from the Home Office’s perspective. If nothing else, when it attempts to resurrect the Snoopers’ Charter for the umpteenth time, the only data available will be the data it chooses to gather.
Many MPs have made an argument during the debate that perhaps, if the Government had allowed MPs more than one day to look at this legislation, then this sort of detail could be addressed and ironed out. Indeed, perhaps the wider question of the array of legal powers used to request communications data – not covered by the Interception of Communications Commissioners – could have been clarified and tidied up.
It is at this moment that it is worth remembering the words of the Prime Minister, who in 2011 said:
“Information is power. It lets people hold the powerful to account, giving them the tools they need to take on politicians and bureaucrats.”
Indeed, giving people an incomplete picture under the guise of a safeguard is bad Government and a disingenuous oversight. If the Home Office is serious about giving the public a meaningful picture of how their data is accessed, then the Home Office must not be allowed to set the rules on what data is recorded.