R.I.P. Bill to introduce far-reaching surveillance
01 July 2000
The Bill will legitimise existing clandestine practices and introduce controls over encryption - all on the authority of politicians and officials
The Regulation of Investigatory Powers Bill has 73 clauses and 4 lengthy Schedules plus 357 points in the "Explanatory Notes". It is presented in three main sections: Part I - Interception of communications; Part II - Intrusive Investigation Techniques; Part III - Decryption powers.
Part I - Interception of communications
This section incomprehensibly starts with defining "unlawful interception" which covers interception by anyone not authorised by the state (Home Secretary, judge or a host of others). Though it makes "lawful" real-time interception (as it is happening) if carried out by a person who has the right to "control the operation or use of the system" or who has "the express or implied consent of such a person" (Article 1.6). This proposed lawful power extends to collecting and storing a communication that "is being, or has been, transmitted" or while being transmitted is "diverted or recorded" and to "data attached to a communication" (Article 2.7, 2.8, 2.9).
Article 3 plunges straight into "Lawful interception without a warrant" (both post and communications). It is lawful, without a warrant, if one of the parties (the sender or receiver) consents or if "surveillance.. has been authorised in Part II" (covert investigations).
Article 4 extends the categories where interception is "lawful" without a warrant. It covers prisons, hospitals and patients under the Mental Health Act 1983. It also covers any "business", which can by authorised by the Home Secretary by regulation, to monitor or record all communications conducted by that business. "Business" in this section is defined as including government departments, "any public authority" and any person given authorisation.
This Article also makes "lawful" the interception of communications in line with the EU draft Convention on Mutual Assistance in criminal matters without a warrant. It allows the interception of communications of a person in another country through telecommunications systems based in the UK due to an interception warrant issued in that country. No limits are placed on the use made of the intercepted material, ie: it does not have to be used for the grounds on which the interception was requested.
Article 5 finally gets around to dealing with instances where a warrant is needed for the interception of telecommunications and postal services.
Article 5.1.b. covers intercepting communications (post and telecommunications) at the request of a non-UK state or agency under an "international mutual assistance agreement". While Article 5.1.c. allows the Home Secretary to request interception of communications outside the UK. Article 5.1.d. covers "intercepted material" and "communications data" (electronic communications).
Article 5.1.3 sets out the criteria for issuing warrants: a) "in the interests of national security" (valid for up to six months); b) "for the purpose of preventing or detecting serious crime" (valid for up to three months); c) "for the purpose of safeguarding the economic well-being of the UK" (valid for up to six months, for people outside the UK); d) for international mutual assistance agreements.
Hidden at the back of this lengthy Bill in section 71 (2) and (3) is the definition of "serious crime". This includes:
conduct by a large number of persons in pursuit of a common purpose
The Explanatory note says this reflects Article 8 of the European Convention on Human Rights which refers to "disorder and crime".
The concept of "national security" is as usual not defined and is subject to the changing perceptions of governments, ministers and officials of all kinds. Liberty, observes: "If Parliament has not judged an activity sufficiently grave or insidious to justify bringing it within the criminal law, then it should not generally be regarded as a legitimat