Andrew Day is a Junior Research Fellow at the Henry Jackson Society.
Britain’s laws governing online surveillance are painfully out of date and no longer fit for purpose in the internet age. The Draft Investigatory Powers Bill Committee has reported on its investigation into proposed new surveillance regulation, and the Government has now outlined its reponse. As with every review before it, and there have been many, the committee underlined the necessity for new legislation placing surveillance powers on a clearer legal footing. Nobody has evidence that Britain’s secret intelligence agencies have acted unlawfully or maliciously under the current regime, but this legislation strikes the correct balance between security and privacy concerns. Any further changes to the draft bill should not come at the expense of its primary purpose, which is to enable Britain’s intelligence agencies to meet the challenges of technological advances.
Utilising communications data is essential in curtailing the activities of terrorists, paedophiles and other serious criminals. Access to communications data played integral part of the investigation into child grooming cases in Oxford and Rochdale. Over the previous decade, it has been used as evidence in 95 per cent of all serious organised crime cases dealt with by the Crown Prosecution Service.
This is about law enforcement agencies being able to see the ‘who, when, where, and how’ of a communication, but not the ‘what’ i.e. the content. Accessing the content, known-as data interception, requires a signed warrant from the Secretary of State. These warrants are already retrospectively checked by commissioners. The draft bill proposes additional oversight, with judges scrutinising warrants for reasonableness and legality.
Historically speaking, these practices are nothing new, of course. Communication interception was used by GCHQ’s predecessor to great effect in the struggle against Nazism. It was the defensive rearguard against Soviet infiltration during the Cold War. It is now an indispensable tool in our efforts against the global scourge of militant jihadism
The concern is that without new legislation, excitable European judges could fatally undermine intelligence gathering capabilities. British courts have confirmed that GCHQ’s activities are legal, but it would not be the first time that judges in Strasbourg and Luxemburg have unilaterally intervened on the wrong side of a national security issue. The extraordinary saga over the deportation of Abu Hamza is not unfortunately a unique case.
So is the government trying to steal your privacy? Of course not. Even if GCHQ wanted ‘mass surveillance’, and they do not, it would still be illegal. And even if they wanted to do it, they would be unable to carry it out. The exponential growth of the internet means the amount of data they are capable of scanning represents still only a tiny slice of overall internet traffic.
Large tech companies such as Facebook and Google are objecting, although they declined to send bosses to give evidence in person at the committee. These companies are posturing and they know they are. They are sending a message to their customers, whose data they routinely analyse for commercial purposes, that they are on the side of privacy in a broader debate about internet freedom. Google’s apparent objections are all the more curious given the company’s history of censoring its own search engines in China. They would be better served looking at their own privacy policies and questioning the extraordinary amount of privacy its consumers have given away to the private sector.
The fundamental point is this: if information is required for national security and serious crime purposes, why should it be beyond the judicially warranted reach of the state? If critics are still unsure of their answer, they should at least recognise the threats Britain now faces. The threat of terrorism has never been greater and the country is facing industrial, state and military espionage on an unprecedented scale. The national grid is not coming under some form of cyber attack every week, but every single minute. These threats have only been amplified through the reckless treachery of Edward Snowden, whose revelations have aided and abetted hostile intelligence terrorist cells and hostile foreign powers. The government must now surely realise that its most strident critics will not be appeased. Further delays to this legislation will only weaken our security as this legislation is needed now.