Destroying Democracy Under the Cloak of Defending It
The problems with thematic warrants and why they should be removed from the UK Government’s Investigatory Powers Bill
We currently have the rare opportunity to scrutinise and debate the powers that law enforcement, the security and intelligence agencies and public bodies should have to interfere with our private communications, our devices and our digital lives. These powers are being enshrined and expanded upon in the draft Investigatory Powers Bill (IP Bill), currently under scrutiny by the Joint Committee on the Draft Investigatory Powers Bill (‘Joint Committee’).
Privacy International has a number of concerns about this draft legislation, as set out in our submission to the Joint Committee i. One particularly troubling aspect is the inclusion of thematic warrants.
Thematic warrants grant the government the power to conduct surveillance of a group or category of people without requiring each target of the surveillance to be identified in the warrant. The Home Office is trying to disguise this broad new power as ‘targeted surveillance’. While the draft bill contains highly problematic sections that outline ‘bulk’ surveillance powers, these thematic warrants are buried in the so-called ‘targeted’ provisions that authorise intercepting the communications and interfering with the equipment (a.k.a. hacking) of people who reside in the United Kingdom.
Thematic warrants are not only problematic because they are hidden in the draft bill, but also because they are contrary to the law. They upend a long tradition in the UK of prohibiting ‘general warrants’ and directly conflict with two recent cases decided by the European Court of Human Rights – Zakharov and Szabo.
The Home Office has also failed to provide a strong operational justification for the inclusion of thematic warrants in the IP Bill. From the scant evidence they have presented, thematic warrants appear to be a matter of mere convenience, not necessity.
For these reasons, legal experts, tech companies, Internet Service Providers (ISP) and civil society have all criticised thematic warrants. In light of these concerns, the power to issue thematic warrants should be struck from the IP Bill.
A brief history of thematic warrants
The only mention of the term “thematic warrants” is buried away at paragraph 212 of the Explanatory Notes to the Draft Investigatory Powers Bill (IP Bill), where the Home Secretary admits that certain types of ‘targeted’ warrants, ‘have sometimes been described as thematic’.
The term thematic warrant was first used in 2015 when the Home Secretary admitted, in the run up to the tabling of the IP Bill, that the intelligence agencies had adopted a fairly loose interpretation of ‘one person’ and ‘single set of premises’ in section 8(1)(a) RIPA (Regulation of Investigatory Powers Act 2000) and were obtaining warrants under this section not for ‘one person’, but for ‘any organization or association or combination of persons’. Warrants obtained under this surprising and broad definition were termed ‘thematic warrants’.
“Although they were not formally approved by parliament, somehow they were invented out of RIPA.” David Davis MP in oral submission to the IP Bill Joint Committee ii
Thematic warrants in the IP Bill
Without actually using the term 'thematic warrants' reference to them appear twice in the draft IP Bill: in Clause 15(2) which describes the permissible subject matter for interception warrants; and in Clause 90, which describes the subject matter of equipment interference warrants.
Clause 15(2) and 90 of the IP Bill follow the same dubious approach, allowing a warrant to be obtained in respect of people or equipment “who share a common purpose who carry on, or may carry on, a particular activity” (Clause 15(2)(a) and 90(b)); “more than one person or organization, or more than one set of premises, where the conduct authorized or required by the warrant is for the purposes of the same investigation or operation” (Clause 15(2)(b) and 90(c)&(e)); or “equipment that is being, or may be used, for the purposes of a particular activity or activities of a particular description” (Clause 90(f)).
It is worth emphasising that these thematic warrants, once granted for ill-defined categories or groups of people (or equipment), delegate to the police or intelligence agencies the decision as to whose privacy will be interfered with,. This will increase the risk of arbitrary action and will undermine the implementation of effective authorisation and oversight.
As stated in Privacy International’s evidence to the Joint Committee:
Under a thematic warrant, the Secretary of State and a Judicial Commissioner will not approve each individual target of the surveillance. Instead, the police and intelligence agencies can choose their targets without additional sign off. For instance, a thematic warrant might authorise the hacking of “all mobile phones in Birmingham” (Clause 90(e)) or the interception of the communications of “anyone suspected of having travelled to Turkey” Clause 15(2)(a).
The purported safeguards at Clauses 27iii and 101iv are insufficient to remedy these concerns. As highlighted by Justice, the law reform charity, thematic warrants can also be modified after their authorisation. Clause 30 provides that the power of Targeted Interception, that includes thematic warrants could be modified by the Secretary of State or a senior official at any time, to add or remove any person, place or organisation. It would also permit a minor modification by the person to whom the warrant is addressed, or their colleagues, to vary such names or descriptions or to add, vary or remove any other ‘factor’ specified in a warrant.
These modifications can be made without any further judicial authorisation, thus side-stepping the already limited judicial oversight provided in the IP Bill. As Justice astutely notes:
“If the modification power in Clause 30 applies to thematic interception; as it appears it must, this could for example mean a warrant for interception of the communications of a group of students at the University of London could, in principle, be legitimately expanded to cover all students in the UK without further judicial approval.” Justice submissions to the IP Bill Joint Committee v
This breadth of application makes it particularly difficult to assess necessity and proportionality in any meaningful way, undermining the ability of any authorising body, including a Judicial Commissioner, to act as a significant safeguard against abuse.
Thematic warrants are ‘general warrants’
Since it does not require each individual target to be named or even known, a thematic warrant is equivalent to the general warrants outlawed 250 years ago.
“A foundational series of eighteenth century cases established that the use of ‘general warrants’ which permitted arrest and search and seizure in respect of classes of individuals, usually the ‘authors, printers and publishers’ of a named periodical, were unconstitutional. Henceforth, the need to identify suspects or specific property was a basic touchstone of the warrant system’. The offensiveness of general warrants is that they delegate to those executing the warrants to determine the strength of evidence against individuals and thus whether they are subject to the coercive authority of the warrant or not. As Lord Mansfield stated in Leach v Money ‘It is not fit that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge…’ (at [260], [264]).” Tom Hickman QC in evidence to the IP Bill Joint Committee vi
Broad-based concern about thematic warrants
Legal experts, international organisations, tech companies and ISPs have all criticised thematic warrants and called for a “return to suspicion-based interference with suspicion based surveillance of individuals who are properly identified and properly targeted.”vii Mozilla warns that:
“The scope of the interception and interference capabilities are dangerously expansive. Specifically, the broad powers envisioned through the bulk provisions seem to be permissible outside of the ‘bulk’ provision. This is particularly evident in the case of ‘thematic warrants’…” viii
Mozilla thus finds it hard to understand why, in light of the scope of thematic warrants, they are classed as targeted not bulk. GreenNet Limited, an ISP, fears that “Fuzzy or ill-defined powers will be extended in practice, much as they were under RIPA (for example, “thematic” s8(1)warrants).”ix
As stated by Liberty, a thematic warrant is an ‘open-ended warrant that could encompass many hundreds or thousands of people’. The Network of Police Monitoring in their evidence to the Joint Committee raise the context of protest policing, stating that:
“In the context of protest policing, this [Clause 15] extends the use of surveillance activities to any individual associated with a protest group that meets the definitions…Not only does the surveillance extend to individuals themselves…it arbitrarily extends it to all individuals believed to share a ‘common purpose’ with them.
This provides policing bodies with wide-sweeping powers to undertake surveillance on political activists and protest groups. We suggest this cannot be acceptable in any democratic society.”x
The Government’s independent reviewer of terrorism laws, David Anderson QC has raised concerns about thematic warrants and has recommended that:
“Specific interception warrants should be limited to a single person, premises or operation. Where a warrant relates to an operation, each person or premises to which the warrant is to apply, to the extent known at the time of the application, should be individually specified on a schedule to the warrant, together with the selectors (e.g. telephone numbers) applicable to that person or premises.”xi
Thematic warrants are a matter of convenience, not necessity
To date the justification offered by government agencies for this new power is insufficient. Law enforcement agencies informed David Anderson QC that thematic warrants would help deal with the proliferation of documents required by the current warrant regime. MI5 suggested a thematic warrant is a matter of convenience, resulting in certain efficiency gains, rather than operational necessity.
“Where we need to use the same capability on multiple occasions against a defined group or network on the basis of a consistent necessity and proportionality…rather than ‘[applying for] individual warrants against each member of the group.” xii
The operational case has not been made for expansion of the subject matter of warrants which can result in surveillance of groups. The Home Secretary must be clear about her intention and set out the operational case, so that a full and informed debate can take place in Parliament.
“It is important because, conceptually, it is anathema to the existing culture of surveillance that has been going since the 18th century in this country. If we are to move in that direction, it needs an informed parliamentary debate about it, to decide if we want to go in that direction.” Matthew Ryder QC in oral evidence to the IP Bill Joint Committee xiii
Thematic warrants are also in conflict with recent court decisions
Proposals to introduce such a broad power come at a time when the European Court of Human Rights has brought significant scrutiny to bear on surveillance powers. Recent rulings have clarified that warrants for the interception of communications need to identify the individuals or set of premises to be put under surveillance. Failure to do so constitutes a breach of the right to privacy under Article 8 of the European Convention on Human Rights (ECHR). Thematic warrants may therefore be insufficiently precise to be compatible with Article 8.
The Court focused on the importance of identifying specific individuals or a single set of premises in the Grand Chamber judgment in Zakharov v Russia (47143/06) 4 December 2015, which declared that ‘the interception authorization …must clearly identify a specific person…or single set of premises’ (at [260], [264]). The Court expressed concern about a Russian surveillance law, which permitted interception of communications for reasons connected with ‘national, military, economic or ecological security.’ The authorisation process was proved inadequate:
“Turning now to the authorisation’s scope of review, the Court reiterates that it must be capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as for example an act endangering national security.”
The Court concluded that the Russian law failed to require adequate identification of the risk posed by a particular individual and of the necessity and proportionality of subjecting him or her to surveillance, noting:
“courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorize interception of all telephone communications in the area where a criminal offence has been committed.”
“the failure to disclose the relevant information to courts deprives them of the power to assess whether there is sufficient factual basis to suspect the person in respect of whom operational-search measures are requested of a criminal offence or of activities endangering national, military, economic or ecological security.”
In the more recent case of Szabo and Vissy v Hungary (37138/14), the Court considered whether there existed adequate and effective guarantees against abuse of secret surveillance powers. It ruled that the body authorizing surveillance must ‘verify whether sufficient reasons for intercepting a specific individual’s communications exist in each case.’ The Court remarked on the absence of any legal safeguards requiring ‘a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measures – and on this basis of individual suspicion regarding the target person’. Only demonstrable existence of a reasonable suspicion, the court emphasised, ‘would allow the authorizing authority to perform an appropriate proportionality test.’ The Court said:
It is of serious concern, however, that the notion of ‘persons concerned identified…as a range of persons’ might include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens…For the Court, the category is overly broad, because there is no requirement of any kind for the authorities to demonstrate the actual or presumed relation between the persons or range of persons ‘concerned’ and the prevention of any terrorist threat – let alone in a manner enabling any analysis by the authorizer which would go to the question of strict necessity with regard to the aims pursued and the means employed.
Recommendations
The Intelligence Services Commissioner, appointed on 1 January 2011 to provide independent external oversight of the use of intrusive powers by the UK intelligence services and parts of the Ministry of Defence, points out, “the critical thing . . . is that the submission and the warrant must be set out in a way which allows the Secretary of State to make the decision on necessity and proportionality”xiv. Thematic warrants make this very difficult, especially where the subject matter may be drawn as broadly as Clauses 15 and 90 would permit.
If the Home Secretary wishes to introduce thematic warrants, which have never been debated or approved by Parliament, she should do so openly and forthrightly. It is misleading to call warrants that allow for bulk surveillance ‘targeted’. It is disappointing that a Home Secretary who seeks, in her own words, to “protect privacy and security by improving transparency and through radical changes to the way investigatory powers are authorised and overseen” and who states that she wants to ensure the use of powers in the IP Bill are “subject to robust safeguards and visible effective oversight” is introducing a Bill which is full of obfuscation in relation to powers which fundamentally challenge what has historically been seen as acceptable limits on the power of the Executive.
Thematic warrants do not belong in this bill, or in any legislation in a modern democracy, as they represent a significant step backwards in the rule of law.
FOOTNOTES
i http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26371.html
ii http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26371.html
iii Targeted Interception
Clause 27 Requirements that must be met by warrants
…
(4) A warrant that relates to a group of persons who share a common purpose or who carry on (or may carry on) a particular activity –
(a) describe that purpose or activity, and
(b) name or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe.
(8) Where a warrant under this Chapter authorizes or requires the interception of communications, the warrant must describe those communications by specifying the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communication.
iv Clause 101
Requirements that must be met by warrants
v Justice http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26448.html
vi Para 14 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26201.html
vii Rachel Logan, Amnesty International http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26308.html
viii Mozilla http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26349.html
ix http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26396.html
x Network of Police Monitoring http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26335.html
xi https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434399/IPR-Report-Web-Accessible1.pdf
xii Para 36 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26371.html
xiii http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/oral/26441.html
xiv Page18 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/437995/50100_HC_225_Intel_Services_Commissioner_accessible.pdf
