Parliamentary Committee Savages The Investigatory Powers Bill

Gus Hosein, Executive Director, Privacy International said:

“Parliament's Intelligence and Security Committee (ISC) has today slammed the Government’s draft Investigatory Powers Bill for its lack of transparency, lack of clarity and lack of privacy protections. We urge the Home Office to take on board the wide ranging criticisms that the tech sector, civil society, and now even the Parliamentary committee that oversees the surveillance capabilities of the intelligence agencies, have made of their proposals. The ISC's report is clear on the requirement of a root and branch reconsideration of the legislation, pushing privacy to the forefront.

"The ISC, which has the unique ability to take evidence on classified matters, has issued a strong warning that 'Privacy considerations must form an integral part of the legislation, not merely an add-on'. Given their privileged position and ability to review secret documents, this warning that 'privacy protection should form the backbone' of the draft legislation must be taken seriously.

"As the ISC notes "The Investigatory Powers Bill is the first major piece of legislation governing the Agencies’ powers in over 15 years." and that "it appears that the draft Bill has perhaps suffered from a lack of sufficient time and preparation". With such crucial legislation it is critical that the Home Office take sufficient time to redraft the legislation, before presenting it to Parliament.

"The ISC states that it is an essential step in seeking to protect both security and privacy that the Bill clearly sets out all the intrusive powers available to the Agencies. Their highly critical report points to numerous instances where the Bill has failed in this most basic of requirements.

"The ISC report states that 'The draft Bill provides that all Bulk warrants must specify the 'operational purpose' for which the material collected is being examined; however, no detail is provided as to what these operational purposes may be. The Committee considers this completely unsatisfactory: it contradicts the primary purpose of the draft Bill, to provide some much-needed transparency in this area.' The ISC recommends that detail is published on the operational case to enable Parliament to evaluate the provisions. It cannot be acceptable that the operational purposes for bulk powers are finalised after the Bill itself has been passed. The desire to rush not only the draft Bill but the Bill itself without strong operational purposes is inappropriate. As the ISC states "We fail to see how Parliament is expected to approve any legislation when a key component on what much of it rests, has not been agreed, let alone scrutinised by an independent body.” The Home Office has had ample opportunity to make an operational case for the powers they seek, and they have completely failed to do so.

"There are numerous points in the ISC report where it highlights lack of consistency, a lack of transparency, unnecessarily confusing and complicated aspects, lack of detail and misleading clauses.

"This lack of transparency is at the heart of one of our current cases, challenging GCHQ hacking of computers and mobile devices. The Government currently relies on the Intelligence Services Act 1994 (“ISA”) as providing the legal authority to hack, even though the legislation fails to expressly authorise hacking. The ISC Report specifically criticises the Government for retaining certain hacking activities under the ISA, noting that it “fails to achieve transparency in this area and effectively means that such operations remain ‘secret’ and thus not subject to clear safeguards.'

"The ISC recommends that the vague justification for the use of interception powers, for reasons of 'economic well-being' be removed as a separate category. They state that 'national security' is sufficient in itself. It is telling that the ISC report states that 'We have questioned both the agencies and the Home Office on this matter and neither have provided any sensible explanation.'

"The ISC notes its disappointment and the 'significant missed opportunity' - that the IP Bill has failed to cover all the Agencies' intrusive capabilities. Referring back to its' own report, published in March 2015, it states that the draft Bill’s failure to address recommendations raised less than a year ago means that 'various powers and authorisations remain scattered throughout different pieces of legislation. As a result, the draft Bill is handicapped from the outset in terms of the extent to which it can provide a clear and comprehensible legal framework to govern the use of investigatory powers.'

"The committee has taken a stand today against some of the most intrusive powers contained in the Bill. Calling for the removal of warrants that would allow for a wide net to be used to obtain datasets containing information relating to innocent individuals is a huge step forward. The committee also calls to rein in powers for the retention of these datasets, powers for the state to hack, and access to our communications data. This is a statement of intent from the committee. They are doing the job they need to do: to oversee and hold to account the investigatory powers of the police and intelligence agencies in the interests of the public. We now need to see a totally revised Bill that takes heed of the ISC’s strong recommendations, and is clear, transparent and respects people’s privacy."