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New Snooper's Charter will define relationship between the state and citizens for a generation

The Investigatory Powers Bill forces companies to retain the browsing history of everyone in the UK. It is a step too far

Whether it’s the BBC's One Show's interview with "real life James Bonds" or The Times getting a tour of GCHQ’s Cheltenham headquarters, Britain’s spies have embarked on an unprecedented PR campaign over the last two weeks. The spooks appear to have been the warm-up act for the Home Office’s more traditional ‘briefings’ on what will appear in the draft Investigatory Powers Bill, expected to be published on Wednesday.

Recent reports suggested the new Bill would force telecoms companies to retain the web browsing histories of every computer user in the UK, which could be accessed by the police with a court order. This contentious measure was one of the reasons the draft Communications Data Bill, more commonly known as the Snoopers' Charter, was dropped back in 2012. However on Sunday it was reported that the government had "backtracked". Companies would only be obliged to retain data about the communications platforms you visit – for example Facebook or WhatsApp – so that the police would find it easier to get data from those platforms. Many commentators have dismissed this apparent climbdown as ‘spin’, designed to appear as though the government is making concessions when really they are extending powers.

Fundamental rights

The European Court of Justice (CJEU) ruled in 2014 that blanket data retention without suspicion severely interferes with our fundamental rights to respect for private life and to the protection of personal data. As a result, it struck down the Data Retention Directive that had obliged European telecoms companies to collect and retain location and traffic data for between six months and two years. Three months later, the UK government re-instated these powers by rushing the Data Retention and Investigatory Powers Act (DRIPA) through Parliament. This summer, the High Court found that parts of DRIPA were unlawful because there are insufficient privacy safeguards in places. The government is appealing but it seems headstrong to propose any increase in blanket data retention in light of both of these rulings.

There have also been mixed reports about encryption, which we should be relieved to note is not being "banned". Henry Porter writing in the Observer notes: "Frankly, the idea was hopelessly impractical and the government is making a virtue out of necessity." 

Over 40 businesses have signed an open letter urging the government not to force companies to weaken encryption. Despite this, the Telegraph reports that companies such as Apple will not be able to offer products and services with end-to-end encryption. It is unclear how they will impose this on companies based outside of the UK.

On one crucial issue, the government has been quiet: should judges or ministers have the power to sign off surveillance warrants away from ministers? Last year alone, Theresa May signed off the equivalent of 10 surveillance warrants a day. Never mind the potential political bias, the numbers alone suggest that this is not a process that stands up to scrutiny.

Why the spin?

There is no doubt that the UK needs new surveillance laws. Open Rights Group and other civil liberties organisations have long called for a new legal framework that would give the agencies important powers they need to target those suspected of crimes, while protecting all of our rights to privacy. Three separate inquiries into surveillance have also called for the law to be reformed. It is extremely unlikely that any campaign group will call for this law to be scrapped in its entirety.

But the back and forth of announcements does not really help the supposed "mature debate" that the Director General of MI5, Andrew Parker has called for. Ministers reassure us that the British public want the security services and police to have such powers. If they are so confident, why the need for spin prior to publication?

This Bill will define the relationship between the state and the public for a generation. We don’t need smoke and mirrors. We need an open and honest discussion about the limits we want to place on state powers and the privacy intrusions we are willing to accept in the name of national security. Open Rights Group and the Don’t Spy on Us Coalition have outlined the consensus for reform in our latest report. We are ready for a mature debate. We hope the government is too.

Little Atoms' parent comnpany 89up works with Open Rights Group on surveillance issues
Pam Cowburn is Communications Director of Open Rights Group