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Investigatory Powers Bill published: Minimal changes are not even cosmetic

1 March 2016

The UK Government has today published the Investigatory Powers Bill which it expects Parliament to pass this year. Three Parliamentary reports reviewed the previous draft and called for clarity, consistency, and coherence. Those recommendations have instead been met with changes that could not even be considered cosmetic, and which mock the parliamentary process. The Government's claim to have redrafted the Bill in-line with privacy protections has amounted to changing the title of Part 1 from "General Protections" in the draft, to "General Privacy Protections" in the published version. The change in no way should count towards meeting the Intelligence Security Committee's (ISC) recommendation that "privacy protections should form the backbone of the draft legislation, around which the exceptional powers are then built".

Despite grave concerns in the consultation process, bulk surveillance powers remain in the IP Bill. While the Bill may contain superficial improvements for journalists and lawyers, the continued existence of chapters on bulk collection and bulk equipment interference - hacking by any other name - leaves the privacy of the majority undermined and at risk of arbitrary interference. The Government struggles to justify these powers. If adopted as currently envisaged, the Bill would codify a practice of mass, untargeted surveillance by the UK intelligence services that treat everyone as suspects. These powers are not lawful, nor necessary or proportionate. They also set a terrible international precedent. The underlining rationale that support these surveillance powers is an approach to security and counter-terrorism that treats the privacy of individuals as an impediment to the pursuit of security aims - wrongly arguing that we can have either security or privacy, but not both.

The Intelligence and Security Committee also expressed concerns that no details were provided as to what operational purposes there may be to justify bulk powers. The current IP Bill does not address this fundamental concern and the detail provided is insufficient to allow for effective Parliamentary scrutiny.

Mass surveillance, as envisaged in these proposed “bulk” warrants, turn the exception into the rule. They do not belong in any law seeking to be 'world-leading', as the Home Office has obnoxiously and dangerously claimed yet again today. These unjustifiable powers need to be removed from this bill.

Despite the Government's assurances, the provisions of the Bill that could be used to undermine encryption or force companies to assist in hacking their customers remain essentially unchanged. 

The Government states that it has met the majority of the recommendations laid out over the three parliamentary reports. Given the attempt to address the concerns of the Intelligence and Security Committee on privacy were crudely met by adding one word to the title of the 'General Provisions' section, we are skeptical whether those recommendations allegedly implemented, have be done so properly. Further, this is not a simple numbers game. If the Government have failed to address all recommendations then there is a real risk that they have failed to take onboard key aspects of detailed pre-legislative scrutiny.

Together with the Bill, the Government has published six draft codes of practices. Accompanied by various other witnesses, Privacy International routinely raised concerns during the draft Bill consultation period on the over-reliance on codes of practices. Codes of practices are not, and cannot substitute primary legislation, on key matters that affect individuals, such as their right to privacy.

The Bill has now introduced a provision restricting UK authorities from requesting a foreign intelligence agency from carrying out interception of communications, unless they have a warrant. This has been hailed by the Government as the fix to the lack of regulation of intelligence sharing. In fact, it hardly addresses the on-going concerns about the practices of intelligence sharing which were revealed in mid-2013. In particular, the provision does not prevent or regulate the receiving and sharing of vast amount of personal data collected by foreign intelligence agencies in the course of their activities. As such the Bill fails to take on board the concerns expressed by the draft IP Bill Joint Parliamentary Committee report, which emphasised the need to build "more safeguards for the sharing of intelligence with overseas agencies".

Today, a concerned group from across academia, government, civil society, and industry have called in the national press for the Government to put a halt to the march of the Investigatory Powers Bill. Three parliamentary reports, industry and civil society evidence have uniformly called for far more clarity and consistency. The Government has not met those fundamental requirements, and the published version of the Bill is plainly not fit for purpose.

The Home Secretary states that the IPBill 'ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe - and no more'. We disagree.

Dr. Gus Hosein, Executive Director of Privacy International said:
 

"The Intelligence and Security Committee called for a new chapter consolidating and strengthening privacy in the Bill; the Home Office has responded by adding one word in the title of Part 1. It would be shameful to even consider this change cosmetic. The Bill published today continues to adhere to the structure and the underlying rationale that underpinned the draft IP Bill, despite the criticism and lengthy list of recommendations from three Parliamentary Committees.
   
The continued inclusion of powers for bulk interception and bulk equipment interference - hacking by any other name - leaves the right to privacy dangerously undermined and the security of our infrastructure at risk. Despite this, the Home Office stands by its claim that the Bill represents "world-leading" legislation. It is truly world-leading, for all the wrong reasons.
   
This morning, a concerned group from across academia, government, civil society, and industry have called in the national press for the government to not to rush the Investigatory Powers Bill. Three parliamentary reports have called for more clarity, consistency and coherence. The Home Office has not met those crucial requirements and the publication of the Bill today begins a debate on a bill that is plainly not fit for purpose."

Additional resources:

Experts call for delay
Over 100 people and organisations have signed a public letter calling for the Government to stop rushing the Bill through Parliament. The signatories include MPs, academics, lawyers, human rights activists representatives from the tech industry: http://www.telegraph.co.uk/comment/letters/12178545/Rushing-the-Investig...

Report to MPs
The Don’t Spy on Us coalition have published a report for MPs, summarising the flaws that experts have identified.
https://www.dontspyonus.org.uk/assets/site/dontspyonus/files/investigato...