LCHR: The Investigatory Powers Bill

7/24/2019 LCHR: The Investigatory Powers Bill

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The Investigatory Powers Bill –

recommendations for the Labour Party

March 2016



Executive Summary

The Investigatory Powers Bill (IPB) marks the culmination of the debate about masssurveillance in the UK. On the one hand, it is an extraordinary step forward. It brings theactivities of GCHQ, Britain’s communications spy agency, out into the open and gives them afirm legal basis. On the other hand, the Bill enshrines into law many of the surveillance

practices that have generated public concern, while offering inadequate safeguards toprevent their misuse. Worse still, the effectiveness of the proposed powers remains in doubt.There is strong reason to believe they are at best a distraction from effective counter-terrorism techniques, and at worse wholly counter-productive.

This briefing covers a range of issues in the debate around the IPB, including the Bill’s likelyimpact on privacy, the potential for misuse and the proposed oversight system, encryption,and the efficacy of the powers.

LCHR supports a Bill that would switch to a system of targeted surveillance, incorporating thehighest standard of safeguards and protecting encryption. To this end, we recommendLabour MPs pursue the following changes to the IPB:

• Remove the section of the IPB proposing bulk retention of internet connectionrecords in its entirety.

• Replace provisions for bulk communications intercept with targeted intercept only,abolishing the system of general warrants and replacing them with a system ofindividual warrants issued on the basis of reasonable suspicion. This will be moreeffective and avoid alienating communities.

• Switch from a system of ministerial authorisation of interception warrants to a systemof judicial authorisation, with a judge playing the exclusive oversight role. Failing this,ensure judges have the scope (including access to all relevant material) to conduct afull merits review of warrants rather than just examine the procedure.

• Ensure the new Investigatory Powers Commission is properly resourced.

• Reform the Intelligence and Security Committee so that it is chaired by an oppositionMP, information cannot be withheld from it, and its membership selection is not

subject to a prime ministerial veto.

• Ensure the IPB protects encryption by removing provisions that may force companiesto provide “back doors” to encrypted data for the security services.



Introduction

The Labour Campaign for Human Rights has been campaigning on mass surveillance sinceour formation in August 2013. Since then we have attempted to stimulate discussion anddebate within Labour about its efficacy and its impact on privacy. We have met Labour MPson both sides of the debate, hosted parliamentary events, authored articles, consulted

experts, produced briefings, and taken the discussions to dozens of CLPs through ourworkshop events.

The Investigatory Powers Bill marks the culmination of the debate about mass surveillance inthe UK. On the one hand, it is an extraordinary step forward. It brings the activities of GCHQ,Britain’s communications spy agency, out into the open and gives them a firm legal basis. Onthe other hand, the Bill enshrines into law many of the surveillance practices that havegenerated public concern, while offering inadequate safeguards to prevent their misuse.Worse still, the effectiveness of the proposed powers remains in doubt. There is strongreason to believe they are at best a distraction from effective counter-terrorism techniques,and at worse wholly counter-productive.

The IPB should not be viewed in isolation. It is one element of a broader strategy by the Tory

government to strengthen executive power. Taken together with the Trade Union Bill, plans toabolish the Human Rights Act, freedom of information review and boundary changes, this Billis part of a bigger story that ends with a dramatic shift of power away from political opposition,civil society, and citizens, and towards the government.

This briefing covers a range of issues in the debate around the IPB, including the Bill’s likelyimpact on privacy, the potential for misuse and the proposed oversight system, encryption,and the efficacy of the powers.

The IPB’s impact on privacy

Part 6 of the Investigatory Powers Bill enshrines in law the sweeping powers of masssurveillance that were first revealed to the public by Edward Snowden in 2013. Instead of

using individual warrants to conduct targeted surveillance on the basis of suspicion, underthis system approximately twenty ‘general warrants’ are used to target entire communicationssystems or sections of the public. GCHQ is believed to collect, en masse, approximately 50billion communications events per day, including emails, browsing records, webpages,locations, and other data.

1 The vast majority of this data is collected from people who are

under no suspicion.

While these powers are focused on “external communications”, in practice the nature of themodern internet means even communications that are domestic will often pass throughservers based abroad, thus allowing them to be treated as external. Moreover, according tothe Draft Bill, material collected in this way can be examined for “general purposes” for whichthere is currently little guidance. As Liberty has stated in its evidence to the Joint Committeeon the Draft Investigatory Powers Bill, the definition of this “could in theory be as broad in its

nature as the three grounds on which the warrant was originally justified”.2

Bulk data collection is highly invasive. It allows the data of millions of innocent people to begathered and potentially examined either by computer software or human analysts. Thisincludes information about which websites we visit, where we are located when we sendmessages, and the content of our emails. From this information a detailed portrait can bedrawn of our lives, including about our personal relationships, financial details, health andlegal issues, and daily movements.

1 Evidence by Liberty to Joint Committee on the Investigatory Powers Bill, 82

(http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26430.pdf)2 Evidence by Liberty to Joint Committee on the Investigatory Powers Bill, 84(http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26430.pdf)



The Bill also includes a new provision to allow for the bulk retention of internet connectionrecords. This means every internet user’s browsing histories will be stored automatically byinternet service providers for 12 months. Considering the variety of modern internet uses, thisprovides for a further intrusion into people’s daily lives. As the respected technology bloggerPaul Bernal has said, “Monitoring the websites we visit isn’t like having an itemised telephonebill!it’s like following a person around as they visit the shops!go the pub, go to the cinema,

turn on their radio, go to the park, visit the travel agent, look at books in the library and soforth.”

3 It also helps to build a picture of trends and patterns in people’s lives over time.

Even worse, a plethora of public authorities will have access to these internet connectionrecords, including HMRC and the Food Standards Agency. Moreover, a warrant will not berequired for access, with access instead being authorised by a “designated person” within therelevant public authority.

LCHR believes both the bulk intercept powers and the bulk retention of internet connectionrecords provided for in this Bill represent an unacceptable infringement on privacy,fundamentally upsetting the correct balance of power between state and citizen in a modern,healthy democracy.

LCHR’s recommendation:

- Remove the section of the IPB proposing bulk retention of internet connection records in itsentirety.- Replace provisions for bulk communications intercept with targeted intercept only,abolishing the system of general warrants and replacing them with a system of individual

warrants issued on the basis of reasonable suspicion.

Potential for misuse and the oversight system

Potential for misuse

The security services have a long history of misusing their powers, including in cases that

have affected the Labour movement directly.

For example, intelligence agencies carried out surveillance on trade unions in the 1970s and1980s as part of “counter-subversion” activities meant to halt the spread of communism. EvenMI5 operatives sometimes thought the government went too far in applying this to industrialdisputes, and the future director general commented in 1977 that senior officials tended “toequate subversion with activity which threatens a Government’s polices”.

4

This surveillance of the unions reached a peak during the 1984-5 miners’ strike, under theorders of the Thatcher government. The security services tapped the phones of the entirenational and local leadership of the National Miners’ Union (NUM), rented the buildingopposite the NUM’s headquarters in Sheffield in order to spy at close quarters, and bugged ahotel and restaurant frequented by top union officials.

5 The police and security services

infiltrated the union’s highest levels – in the 1970s, the NUM’s president was himself aninformant for Special Branch,

6 while a chief executive who accused the union leadership of

corruption and embezzlement was later accused in parliament of having been an MI5 agent.7

Further details on the police’s surveillance of unions after the Cold War was revealed bywhistleblower Peter Francis, who said that in his career as an undercover police officer he

3 A few words on Internet Connection Records, Paul Bernal

https://paulbernal.wordpress.com/2015/11/05/a-few-words-on-internet-connection-records/4 Christopher Andrew, “The Threat of Subversion”, MI5 History. https://www.mi5.gov.uk/home/about-

us/who-we-are/mi5-history/the-cold-war/the-threat-of-subversion.html5 Seumas Milne, “The Enemy Within” (2014), p. 342

6 BBC, “Former NUM chief was police informer”,24 October 2002.

http://news.bbc.co.uk/1/hi/programmes/true_spies/2351547.stm7 Early Day Motion 2352, “Mrs Stella Rimington and the Miners' Union”, 20 July 1993.

http://www.parliament.uk/edm/1992-93/2352



spied on members of unions including: Unison, the Fire Brigades Union, CommunicationWorkers Union, National Union of Teachers, and the National Union of Students.

8 He

confirmed the identity of former undercover officer Mark Jenner, who posed as a joiner andused a false name to join UCATT, a construction workers’ union, and gather information on itsmembers – some of whom were added to blacklists.

9

The police and intelligence services also have a history of spying on Labour politicians. Thepolice special branch carried out covert monitoring of 10 MPs during the 1990s – all of themfrom the Labour Party, according to recent revelations by former undercover officer PeterFrancis. Several became cabinet ministers in this period: Jack Straw, Harriet Harman andPeter Hain. The files contained personal information on the politicians’ finances and privatelives.

10 Labour MP Sadiq Khan was also bugged by police while visiting prison in 2005 and

2006 as part of his campaign to help a terror suspect avoid extradition to the United States.11

According to MI5’s official history, the Thatcher government saw the peace movement as thebiggest source of subversive threat.

12 The agency targeted the Campaign for Nuclear

Disarmament (CND) in the 1970s and 1980s, and held a permanent file on CND secretarygeneral Bruce Kent, who they described as a “possible anarchist”.

13

Covert monitoring of activists continued after the fall of the Soviet Union. One officer, wholived undercover as an environmental activist for seven years, was unmasked as part of acourt case in 2011. There is evidence of the police’s recent attempts to spy on studentgroups, including video footage of an officer trying to recruit an activist to report on theactivities of students from Cambridge University in exchange for money.

14

Whistleblower Peter Francis has also revealed his work in the 1990s to infiltrate anti-racismgroups under a false identity and gather information to discredit the family of murderedteenager Stephen Lawrence.

15

Meanwhile, documents leaked by Edward Snowdon revealed that GCHQ, along with theNSA, have been using their mass surveillance capabilities to collect communications datafrom civil society groups such as Médecins du Monde and the United Nations bodies UNDP

and UNICEF.16 In July 2015, UK’s Investigatory Powers Tribunal also revealed that GCHQhas been intercepting, accessing, and storing the communications of human rights group

Amnesty International. Other notable revelations about GCHQ’s activities include evidencefrom the Snowden files that they have intercepted and collected millions of people’s privatewebcam images, targeting 1.8 millions users in one month alone.

17 This includes sexually

explicit material.

8 Paul Lewis and Rob Evans “Covert police unit spied on trade union members, whistleblower reveals”,

The Guardian, 13 March 2015. http://www.theguardian.com/uk-news/undercover-with-paul-lewis-and-rob-evans/2015/mar/13/covert-police-unit-spied-on-trade-union-members-whistleblower-reveals9 Nick Sommerlad, “Undercover cop joined construction union UCATT to spy on workers”, The Mirror ,2

March 2015. http://www.mirror.co.uk/news/uk-news/undercover-cop-joined-construction-union-526117410

Rob Evans and Rowena Mason, “Police continued spying on Labour activists after their election asMPs”, The Guardian, 25 March 2015. http://www.theguardian.com/uk-news/2015/mar/25/police-spied-

on-labour-mps-whistleblower11

BBC “MP was bugged twice, report says”, 21 February 2008.http://news.bbc.co.uk/1/hi/uk_politics/7256421.stm12

Christopher Andrew, “The Defence of the Realm: The Authorized History of MI5”, 201213

Christopher Andrew, “The Defence of the Realm: The Authorized History of MI5”, 201214

Rob Evans and Mustafa Khalili, “Police tried to spy on Cambridge students, secret footage shows”,The Guardian, 14 November 2013. http://www.theguardian.com/uk-news/2013/nov/14/police-cambridge-university-secret-footage15

Rob Evans and Paul Lewis, “Police 'smear' campaign targeted Stephen Lawrence's friends and

family”, The Guardian, 24 June 2013. http://www.theguardian.com/uk/2013/jun/23/stephen-lawrence-undercover-police-smears16

James Ball and Nick Hopkins, “GCHQ and NSA targeted charities, Germans, Israeli PM and EU

chief”, The Guardian, 20 December 2013. http://www.theguardian.com/uk-news/2013/dec/20/gchq-targeted-aid-agencies-german-government-eu-commissioner17

http://www.theguardian.com/world/2014/feb/27/gchq-nsa-webcam-images-internet-yahoo



There is an often mistaken assumption that the security services only use powers to protectthe public. In fact, as the evidence above demonstrates, throughout their history and right upuntil the present day, they have used them for reasons that stretch far beyond this. Spying onunions, activists, and human rights groups as well as politicians and millions of webcam userssuggests not only a risk but a propensity for misuse. In light of this, it is concerning that theIPB is set to grant the security services such extensive powers with such poor checks and

balances.

Oversight system

The IPB proposes two main changes to the system of oversight surrounding masssurveillance. The changes are billed as an improvement to current safeguards, but as theystand are wholly inadequate.

The first proposal is to switch from ministerial authorisation for intercept warrants to a ‘double-lock’ system of ministerial authorisation combined with judicial review. While at first seemingto incorporate the key proposal of the Anderson report to allow independent, judicialauthorisation of intercept warrants, the proposed change stops far short of this.

18 As Andy

Burnham, the Shadow Home Secretary, stated in a letter to the Home Secretary last year, the

proposed system only allows a judge to review the procedure by which a warrant isauthorised rather than weigh the evidence for the warrant itself:

19

[You] created the impression that both the home secretary and a senior judgewould review the evidence. Indeed, you may recall that I asked you in theHouse about what would happen if there were a difference of opinion betweenthe two.

On closer inspection of the wording of the bill, it would seem that it does notdeliver the strong safeguard that you appeared to be accepting. The currentwording of the draft bill requires the judge to review the ‘process’ undertaken bythe Home Secretary in the same way applied to a judicial review.

20

Without full judicial oversight, the government is effectively signing off on its own warrantrequests. No other country in the ‘five eyes’ intelligence community, including the USA,Canada, New Zealand, and Australia, uses this system. However, by giving a judge the abilityto review the proportionately and necessity of warrant requests, an independent safeguardwould be assured.

The IPB also proposes that in “urgent cases”, ministerial authorisation is enough by itself solong as it is followed by judicial review within a period of five days. The definition of “urgent”must be tightly worded to ensure this procedure is not abused.

The second major proposal is for the Interception of Communications Commissioner, theIntelligence Services Commissioner, and the Chief Surveillance Commissioner to be merged

into a new Investigatory Powers Commission. It is vital that this new body is properly

resourced so that it can play its oversight role effectively.

The IPB does not include provisions to reform the Intelligence and Security Committee

(ISC), which provides parliamentary oversight of the intelligence services. The ISC has

lost much credibility over its perceived closeness to the intelligence community following

the Snowden revelations and it could benefit from reform to ensure its independence

from the government.

18 http://www.theguardian.com/world/2015/jun/11/anderson-report-tests-surveillance-laws-judicial-

warrant-analysis19

http://www.theguardian.com/politics/2015/nov/09/andy-burnham-investigatory-powers-bill-judicial-safeguards-letter-theresa-may20 Letter from Andy Burnham MP to the Home Secretaryhttp://www.newstatesman.com/politics/uk/2015/11/labour-demands-stronger-safeguards-investigatory-powers-bill



LCHR’s recommendations:

- Switch from a system of ministerial authorisation of interception warrants to a system of judicial authorisation, with a judge playing the exclusive oversight role. Failing this, ensure judges have the scope (including access to all relevant material) to conduct a full merits

review of warrants rather than just examine the procedure.- Ensure the new Investigatory Powers Commission is properly resourced.- Reform the Intelligence and Security Committee so that it is chaired by an opposition MP,information cannot be withheld from it, and its membership selection is not subject to a prime

ministerial veto.

The IPB’s impact on encryption

Encryption refers to the process of transforming data from plain text into cipher text so thatonly authorised parties can access it. It is one of the prime ways of ensuring internet datasecurity and privacy as encrypted communications can only be accessed by using anencryption key or password.

The original Draft IPB aimed to change the current state of encryption by making it a legalobligation for companies to bypass encryption when possible in order to allow securityservices to hack into and bug computers or phones for surveillance purposes. It demandedthat companies submit decrypted communications to the Home Office, if requested. This maymean that end-to end encryption has to be banned because these strongly encodedcommunications cannot undergo decryption. However, the recent re-draft of the Bill makes itclear that the government will take a pragmatic approach and not ask companies to removeencryption unless it’s technically feasible and affordable. Nonetheless, there is stillconsiderable concern about potential overreach with these powers.

Apple, which applies end-to-end encryption in its iMessage, is critical of the Bill, insisting that“[w]e believe it would be wrong to weaken security for hundreds of millions of law-abidingcustomers so that it will also be weaker for the very few who pose a threat. In this rapidlyevolving cyber-threat environment, companies should remain free to implement strongencryption to protect customers.”

21 Similarly, Facebook, Google, Microsoft, Yahoo Microsoft

and Twitter submitted written evidence to the Joint Committee on the Draft InvestigatoryPowers Bill stating that “[w]e reject any proposals that would require companies todeliberately weaken the security of their products via backdoors, forced decryption, or anyother means.”

22

Encryption is highly important because it ensures that information is kept private andinaccessible to third parties. This is important in terms of sharing any sensitive data such asfinancial transactions or emails. Alongside protecting individual citizens’ data, there is also thenational interest to consider. One of the significant current security threats to Britain is cyber-warfare. Cyber security campaigners representing 42 countries recently signed an open letterto world governments attempting to uphold the importance of encryption, writing that “[s]trongencryption and the secure tools and systems that rely on it are critical to improvingcybersecurity.”

23 Yet the IBP could actually legalise a form of cyber-warfare.


- Ensure the IPB protects encryption by removing provisions that may force companies to

provide “back doors” to encrypted data for the security services.

21 Written evidence. Available at:

http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-investigatory-powers-bill-committee/draft-investigatory-powers-bill/written/26341.html22

Written evidence. Available at:

https://www.globalnetworkinitiative.org/sites/default/files/Written%20evidence%20-%20Facebook%20Inc.%2C%20Google%20Inc.%2C%20Microsoft%20Corp.%2C%20Twitter%20Inc.pdf23

Security For All . Available at: https://securetheinternet.org/



Effectiveness

There are serious reasons to doubt the effectiveness of mass surveillance. Not only is itremarkably inaccurate as a detection tool, it also diverts significant resources away fromtraditional methods that would do more to prevent terrorist attacks. Moreover, masssurveillance may make the fight against terrorism harder in the long run by alienating

communities and contributing to radicalisation.

A 2009 report by the US government found that only 1.2 per cent of tips provided to the FBIby mass surveillance techniques made a significant contribution to counter-terrorism efforts.

24

Another recent study by the New America Foundation found that National Security Agencymass data collection played a role in, at most, 1.8 per cent of terrorism cases examined.

25 By

contrast, traditional investigative methods initiated 60 per cent of investigations.26

The technology itself is the reason for its lack of utility, being highly inaccurate. Indeed,computer scientist Ray Corrigan has written, “Even if your magic terrorist-catching machinehas a false positive rate of 1 in 1,000—and no security technology comes anywhere nearthis—every time you asked it for suspects in the UK it would flag 60,000 innocent people.”

27

Perversely, this lack of precision means mass surveillance can actually frustrate counter-terrorism efforts. Both Michael Adebolajo and the Hebdo killers were well known to securityservices prior to their attacks, indicating the intelligence failures were to do with lack ofattention rather than lack of data. Mass surveillance means intelligence analysts are forced tospend their time sifting through a large amount of data rather than carrying out the targetedmonitoring and detection that’s really needed.

Counter-radicalisation experts have also argued that mass surveillance may alienate Muslimcommunities and possibly contribute to radicalisation. In 2014, Jonathan Russell from thecounter-extremism group Quilliam wrote that the “introduction of a sweeping [masssurveillance] law!will be exploited by extremists to show that the government wants to spyon its own citizens [and] that all Muslims are suspected of being terrorists.”

28


- Remove all provisions for bulk data collection by the security services in order to free up

resources for targeted surveillance and to avoid alienating communities.

Conclusion

LCHR believes the mass surveillance provisions outlined in the Investigatory Powers Billrepresent a disproportionate infringement on privacy, are ineffective against terrorism, andare not currently accompanied by adequate safeguards to prevent misuse. We recommendthat Labour MPs pursue the following changes to the Bill:

• Remove the section of the IPB proposing bulk retention of internet connectionrecords in its entirety.

• Replace provisions for bulk communications intercept with targeted intercept only,abolishing the system of general warrants and replacing them with a system ofindividual warrants issued on the basis of reasonable suspicion. This will be moreeffective and avoid alienating communities.

• Switch from a system of ministerial authorisation of interception warrants to a systemof judicial authorisation, with a judge playing the exclusive oversight role. Failing this,

24 https://fveydocs.org/document/report-psp/

25 https://www.newamerica.org/downloads/IS_NSA_surveillance.pdf

26 https://www.newamerica.org/downloads/IS_NSA_surveillance.pdf

27http://www.slate.com/articles/health_and_science/new_scientist/2015/01/mass_surveillance_against_t

errorism_gathering_intelligence_on_all_is_statistically.html28

http://www.independent.co.uk/voices/comment/new-surveillance-laws-will-only-help-fuel-terrorism-9592365.html



ensure judges have the scope (including access to all relevant material) to conduct afull merits review of warrants rather than just examine the procedure.

• Ensure the new Investigatory Powers Commission is properly resourced.

• Reform the Intelligence and Security Committee so that it is chaired by an oppositionMP, information cannot be withheld from it, and its membership selection is notsubject to a prime ministerial veto.

• Ensure the IPB protects encryption by removing provisions that may force companiesto provide “back doors” to encrypted data for the security services.

Documents

LCHR: The Investigatory Powers Bill