UK: Legitimising surveillance
The Regulation of Investigatory Powers Bill [R.I.P. Bill]
In June 1999 the Home Secretary put out a consultation paper on the interception of telecommunications prior to publishing a Bill to replace the 1985 Interception of Communications Act (IOCA) (see Statewatch, vol 9 no 3 & 4). This dealt primarily with state agencies intercepting phone-calls, e-mails and faxes. On 9 February the "Regulation of Investigatory Powers Bill" (RIP Bill) was introduced. The title of the Bill can only be described as deliberately misleading, placing the emphasis on the "Regulation" rather than on the extensive new powers of surveillance being legitimised. It covers:
- the interception of telecommunications (including the exchange of data with third states/agencies)
- intrusive surveillance (on residential premises and vehicles)
- covert surveillance
- the "use of covert human intelligence sources" (agents, informants, undercover officers)
- power to demand communications data (eg: billing details)
- power to order the handing over of encryption "keys"
Home Secretary, Jack Straw, said: "None of the law enforcement activities specified in the Bill are new. Covert surveillance by police and other law enforcement officers is as old as policing itself; so too is the use of informants, agents and undercover officers." The Home Secretary is thus, at a stroke, seeking to legitimise all the current practices of the "law enforcement agencies" which are currently unregulated and in most cases not covered by law.
There may be nothing "new" but there are certainly practices in the Bill which should have been the subject of democratic control and scrutiny. There are a host of new surveillance powers in the Bill which have not been put out to consultation but simply added to the proposed legislation.
The scope of the new surveillance powers reflects the changing nature of "policing", not just in the UK but in most EU countries. Over the past ten years secret and clandestine methods of gathering "intelligence" previously employed in the days of the Cold War by internal security agencies have permeated policing practice. According to the Home Office the Bill will enable the law enforcement agencies to conduct systematic targeting of an individual over a period of time in order "to obtain a picture of his life, activities and his associates."
Another driving force behind the provisions in the Bill is the EU draft Convention on Mutual Criminal Assistance (which covers interception and covert operations) and the "requirements" set out in the EU-FBI telecommunications surveillance plan adopted by the EU in January 1995.
Liberty has commented that:
the clandestine nature of the operations regulated by the legislation heightens the care needed to ensure that necessary official activities impinge as little as possible on citizens' rights. Against that background, the current criteria for authorising interception and surveillance are objectionably vague and overboard.
One of the most objectionable aspects of the Bill is that it will allow the executive - politicians and officials - to authorise themselves to conduct surveillance rather than on the basis of a court order.
It may offer some comfort to know that the Home Secretary has, as required by Section 19 of the Human Rights Act 1998 (which incorporated the European Convention on Human Rights) formally made the following statement: "In my view the provisions of the Regulation of Investigatory Powers Bill are compatible with the Convention Rights." When the Home Secretary says the R.I.P. Bill will secure "a better balance between law enforcement and individual rights" it is certain that it is the former's interest he has in mind and not the latter's.
Analysis of the Bill section by section
see FIPR for analysis of encryption debate
see STAND for R.I.P.Bill