Tag Archives: investigatory powers draft bill

Whistleblowers and journalists in the digital age

Snowden

Dr Aljosha Karim Schapals, research assistant at the Information Law and Policy Centre, reports on a research workshop hosted by the University of Cardiff on Digital Citizenship and the ‘Surveillance Society’.

A workshop led by researchers at the Cardiff School of Journalism, Media and Cultural Studies (JOMEC) on 27th June in London shared the findings of an 18 month ESRC funded research project examining the relationships between the state, the media and citizens in the wake of the Snowden revelations of 2013.

It was the concluding event of a number of conferences, seminars and workshops organised by the five principal researchers: Dr Arne Hintz (Cardiff), Dr Lina Dencik (Cardiff), Prof Karin Wahl-Jorgensen (Cardiff), Prof Ian Brown (Oxford) and Dr Michael Rogers (TU Delft).

Broadly speaking, the Digital Citizenship and the ‘Surveillance Society’ (DCSS) project has investigated the nature, opportunities and challenges of digital citizenship in light of US and UK governmental surveillance as revealed by whistleblower Edward Snowden.

Touching on more general themes such as freedom of expression, data privacy and civic transparency, the project aligns with the research activities of the Information Law and Policy Centre, which include developing work on journalism and whistleblower protection, and discussions and analysis of the Investigatory Powers Bill. Continue reading

Update on Information Law and Policy Centre’s contribution to Investigatory Powers debate

As previously reported on this blog, our Information Law and Policy Centre (ILPC) at IALS has facilitated an ad hoc research group of academics and practitioners to contribute to the ongoing policy debate on surveillance following publication of the government’s Draft Investigatory Powers Bill. Members of this group published a clause-by-clause review examining their provenance – that is, whether the clauses come from existing legislation, or are newly introduced.

Lorna Woods, IALS senior associate research fellow and professor in law at the University of Essex, then submitted a revised version in her evidence to the joint select committee scrutinising the Bill. The committee used her evidence in its report published in February, for a table describing each investigatory capability in the draft bill (pp.32-37).

Separately, members of the Information Law and Policy Centre’s advisory board including Professor Lilian Edwards, Strathclyde University and Dr Lawrence McNamara, Bingham Centre for the Rule of Law, have signed an open letter published in the Telegraph calling on the government to give the Investigatory Powers Bill, which was introduced to the House of Commons on 1st March, the time it needs and not rush it through Parliament.

Members of the Centre have also participated in related events: Information Law and Policy Centre director Dr Judith Townend spoke at a symposium on the Bill at the University of Cambridge on 5 February 2016, and on 8th March, acted as discussant in an event on surveillance and human rights at Senate House, as part of a Seminar Series organised by the Institute of Commonwealth Studies and the Human Rights Consortium.  Other speakers included Kirsty Brimelow QC and Silkie Carlo, policy officer in technology and surveillance at Liberty.

Natasha Simonsen and Cian Murphy: Don’t Fast-Track the Investigatory Powers Bill – A reply to Lord Carlile

In this guest post, which originally appeared on the UK Human Rights Blog, Natasha Simonsen & Cian C. Murphy from The Dickson Poon School of Law, King’s College London, urge the government to take its time in scrutinising the Investigatory Powers Draft Bill. For other materials on the Bill, please see our resource page here.

5295Lord Carlile QC, former Independent Reviewer of Terrorism Legislation, has said that in the aftermath of the Paris attacks, Parliament should fast-track the Investigatory Powers Bill into law. Given his extensive experience in the field, Lord Carlile’s views should not be taken lightly. But Lord Carlile is wrong. To fast-track the Investigatory Powers Bill is undesirable and unnecessary. It would also end a crucial public conversation in a wrong-headed paroxysm of governmental action.

An Undesirable Response

Fast-track national security law is undesirable for (at least) two reasons. First, legislatures tend not to function well in the aftermath of any emergency. If they legislate immediately, the result is often not just overreach, but legislation that is bad in technical terms. Second, these general concerns are of especial significance in this field of law, because existing flaws in our investigatory powers law are a result of failures of scrutiny in the past.

Let’s take the present case. In 2004, after the Madrid bombings, EU Governments sought to retain telecommunications data for use by security services. The European Parliament, with concerns for privacy, held up the draft legislation. However, after the London bombings in 2005, the proposal became law as the Data Retention Directive. The Directive was broad, vague, and weak on oversight – flaws that are often the consequence of quick political agreement in a contentious field.

In 2014, after years of challenges in national courts, the EU Court of Justice struck down the Directive in its Digital Rights Ireland decision. It is of note that the Court of Justice didn’t have a problem with data retention per se, but rather with the poor safeguards in the law.

The response in the UK was to enact the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) – an emergency law on data retention that will cease to have effect next year. DRIPA is already in trouble in the courts and the Investigatory Powers Bill will entirely replace it. This is a sorry tale of emergency law-making, and of lengthy and costly litigation. We are not made more safe when the energies of the legislature, executive, and judiciary focus on bad laws made in the immediate aftermath of crises. It is an entirely undesirable mode of government.

An Unnecessary Response

The fast-track Lord Carlile is calling for is also unnecessary. The Home Secretary assures us that the purpose of the Investigatory Powers Bill is not to introduce broad new surveillance powers. It is, she claims, to consolidate and update the legal basis for such powers. What powers, therefore, are in the Bill that cannot wait until its enactment next year? And, for the sake of argument, say there are some such powers. Those powers could be laid out in a separate, short, emergency bill which Parliament could then fast-track. A putative Emergency Powers Bill 2015 could fly through Parliament, with a sunset clause to ensure it does not out-live the future Investigatory Powers Act. It would empower the agencies but not disrupt the legislative process for the Bill as a whole.

This would not be without its problems – but it would be better than immediate enactment of a 200-page draft Bill. It’s hard not to see Lord Carlile’s intervention as a call for the swift passage of the Bill because swift passage may now be possible. But this would perpetuate the mistakes of previous legislation – doing in haste what must be done with caution – and with care. As we have set out elsewhere – there is much in the Bill that requires improvement through scrutiny by the Joint Committee on Human Rights and the Intelligence and Security Committee. We must not rush.

Devastation and Deliberation

Our concerns are not just about the quality of the law. Swift legislative action may have a short-term palliative effect on the public mood – and who amongst us is not afraid after the devastation of Beirut and Paris last week? But this Bill, in part, aims to improve public trust of the law enforcement and intelligence agencies. Any short-term public assurance that a fast-track law would bring would soon disappear if emergency law once more proves to be poor law and if the Government is thought to have seen opportunity in crisis.

Most of all, if we fast-track this Bill, we lose the opportunity to react to last week as a mature democracy. We are in the midst of a constitutional conversation about the role of the intelligence services, about communications and privacy, and about whether, and the terms on which, we will barter our freedom and our security.

It is trite to point out that last week’s barbarism is a repudiation of the ideals that underpin our collective commitment to such conversations. In the face of such acts what we need from our political leaders is not reactionary legislation – it is resilience. The Investigatory Powers Bill requires scrutiny and then enactment. And this process must be driven by the cool logic of a careful legislature – not the fear we all feel today. Don’t fast-track the Bill.

Natasha Simonsen & Cian C. Murphy are faculty members at The Dickson Poon School of Law, King’s College London. They can be found on Twitter @natashajanesimo and @cianmurf.