Sandcastles At Low Tide: Joint Committee On Human Rights Scrutinises Investigatory Powers Bill

News & Analysis
Sandcastle in a beach

Another committee-led scrutiny. Another list of changes that need to be made to the Investigatory Powers Bill. This seems familiar.

The Joint Committee on Human Rights has weighed in with scrutiny of the Investigatory Powers Bill prior to the Bill’s debate and vote in the House of Commons on the 6 and 7 June. The recommendations the report contains once again raise questions about the fitness of the Bill to be passed in its current form.

The Committee identified thematic warrants - which allow for bulk hacking of devices or bulk communications surveillance - as being far too broad to sufficiently limit invasive interception powers. This is a good thing. The use of thematic warrants in the Bill threatened a 250-year old custom in the UK of prohibiting ‘general warrants’. Legal experts, international organisations, and tech companies have all criticized the existence of thematic warrants in the Bill, and we are glad to see the continued inclusion of such broad powers receive the criticism they deserve.

We identified thematic warrants as problematic in our analysis of the Bill back in February 2016. Privacy International’s challenge of government hacking in the Investigatory Powers Tribunal revealed, for the first time, the UK were issuing general warrants for hacking within the UK. Privacy International are continuing to challenge this in the courts via judicial review. These powers were hidden in the “targeted” sections of the report, and appear to conflict with both the long-held UK custom against general warrants, as well as with two recent cases decided by the European Court of Human Rights – Zakharov and Szabo.

Speaking of European case law….

The Committee’s remarks that bulk collection is “not inherently incompatible” with the right to privacy based on existing European case law, is like a sand castle built at low tide. The landscape of the case law in this area is set to change and has been changing rapidly. Recent decisions from the European Court of Human Rights in Zakharov, and by the Court of Justice of the European Union in Digital Rights Ireland have been clear in condemning the practice of collecting, in bulk, the communications of individuals without sufficient limitations. And the upcoming cases involving Privacy International and other UK human rights organisations will will soon add to the available case law in Europe. While this scrutiny is welcomed, on this point, the committee may find itself reviewing its opinion again.

These two statements from the same committee, in the same report, would seem to be at cross purposes. If the committee were unhappy with the broad nature of thematic warrants they should have been outraged by the bulk powers. Thematic warrants are bulk warrants and vice versa.

Normally we talk about Orwell in this space from the perspective of the telescreen as mass, ubiquitous surveillance, but another aspect comes out from these two statements: doublethink.