Liberty has welcomed the Independent Reviewer of Terrorism Legislation’s call for a fundamental overhaul of the laws governing state surveillance in the UK.

In a major 300-page report, David Anderson QC condemns the status quo under the Regulation of Investigatory Powers Act 2000 (RIPA) as "undemocratic, unnecessary and – in the long run – intolerable," and advises it be replaced with a comprehensive new law that can be properly understood by people and parliamentarians.

The recommendation is in glaring contrast to the government’s repeated claims since 2013 that the current legislative framework provides effective safeguards to properly protect British people’s privacy.

Need for reform

Liberty has long called for reform of RIPA to ensure that intrusions into personal privacy are properly authorized and comply with human rights principles of necessity and proportionality.

David Anderson states the new law must:

• Comply with international human rights standards and be subject to visible and demanding safeguards, reflecting the central importance of the European Convention on Human Rights and Human Rights Act.
• Require prior judicial authorization for all interception warrants and some communications data requests — something Liberty has campaigned for for more than a decade. Authorization will be given by Judicial Commissioners serving in a new Independent Surveillance and Intelligence Commission (ISIC). Anderson recommends ISIC have additional powers to notify those subject to surveillance of their right to lodge an application at the Investigatory Powers Tribunal (IPT), which oversees the British security services.

Recommendations

The report contains 124 separate recommendations, many of which are in line with Liberty’s written submissions to Anderson and long-term calls for change. It recommends that:

• The IPT should be able to make declarations of incompatibility under the Human Rights Act, and its rulings should be subject to appeal on points of law.
• Computer Network Exploitation (CNE, or hacking) should be brought within the law.
• While operation of covert powers must remain secret, intrusive spying capabilities should be made public.

Anderson also states that no operational case has yet been made for the Snoopers’ Charter and questions the lawfulness, intrusiveness and cost of the proposals — a blow to the home secretary’s forthcoming plans for a turbo-charged Investigatory Powers Bill. He points out that no other EU or Commonwealth country requires the blanket retention of weblogs and that Australia recently prohibited this in law.

The report also confirms that the agencies are not seeking a permanent trump card placing encryption under the control of the state — seemingly in direct contradiction to comments made by the prime minister in January.

Bulk collection

More disappointingly, Anderson suggests that "bulk collection" of external communications — those sent from and into the UK — should continue subject to "additional safeguards," and recommends maintaining existing compulsory communications data retention capabilities under the Data Retention and Investigatory Power Act 2014 (DRIPA).

The report offers six agency case studies in an attempt at justifying mass interception. However, with the vague and limited information provided, it is impossible to assess whether the security outcomes could have been achieved by using the wealth of targeted and operation-led intrusive surveillance powers at the agencies’ disposal.

While Liberty does not dispute the use and value of intrusive surveillance powers per se, we believe that the mass speculative interception of communications and data retention are unlawful, unnecessary and disproportionate. Liberty is currently challenging the lawfulness of mass interception in the European Court of Human Rights, and is representing MPs Tom Watson and David Davis in their legal challenge to DRIPA.

Shami Chakrabarti, director of Liberty, said:

"This thoughtful report is in sharp contrast with the defensive whitewash from the discredited Intelligence and Security Committee of the last Parliament. Liberty has been campaigning for judicial warrants and against the Snoopers’ Charter for many years. Whilst we don't agree with all his conclusions, Mr. Anderson's intervention could be the beginning of re-building public trust in surveillance conducted with respect for privacy, democracy and the law. It is further vindication of Edward Snowden's courage."

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