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Another U.K. Surveillance Review Calls For Judicial Sign-Off For Intercepts
Posted Jul 14, 2015 by Natasha Lomas (@riptari)
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Another independent report into U.K. government surveillance has
concluded interception warrants should require judicial sign-off,
rather than being sanctioned by ministers as is the case now.
This follows the publication of the Anderson surveillance review last
month which also urged the government to adopt judicial sign-off. The
U.K. is alone among the so-called Five Eyes intelligence alliance
powers in not having a judicial process for signing off interception
warrants.
Late last month Home Secretary Theresa May said the government was
considering the Anderson recommendations, and had not yet made
a decision on the judicial sign-off point, although in earlier comments
(reported in The Guardian) the government appeared to pour cold water
on the idea of handing off warrant authorization to judges.
The government has said it is committed to introducing new surveillance
legislation, the forthcoming Investigatory Powers Bill, in the current
parliament, with a timetable to introduce a draft bill this autumn —
with a view to gaining Royal Assent next year before emergency
surveillance legislation (DRIPA) expires at the end of 2016.
The latest U.K. surveillance powers review, conducted by defense and
security think tank, the Royal United Services Institute (RUSI) — at
the request of the government’s former deputy Prime Minister, in the
wake of the Edward Snowden revelations — concludes it found “no
evidence” the government “knowingly acts illegally in intercepting
private communications”.
This despite the judicial oversight body for the U.K.’s intelligence
agencies, the IPT, itself ruling earlier this year that GCHQ had acted
unlawfully in the past in its data-sharing arrangements with the NSA. A
second IPT ruling also judged GCHQ has broken the law in its handling
of intercepted comms data pertaining to two humans rights organizations
— breaching its own internal rules and violating the human rights of
the target groups.
The RUSI’s report aligns with the government position on mass
surveillance being a ‘necessary tool’ for intelligence gathering too —
arguing that “some degree of untargeted data collection, involving the
collection of data in bulk, may sometimes be required, especially given
the nature of modern communications” — and claiming it found no
evidence that mass surveillance is being used to provide the state
with “a perpetual window into the private lives of British citizens”.
Anderson’s report generally supported the use of mass surveillance —
going against the prevailing view from European rights bodies and
recent political moves to row back domestic dragnets in the U.S. —
although he said such powers must be “subject to strict additional
safeguards”, such as the aforementioned judicial sign-off for
intercept warrants, if they are to be acceptable.
The RSUI follows what is now a clear consensus that reform of U.K.
surveillance legislation is needed, identifiing an urgent need for “a
new, comprehensive and clearer legal framework” for authorizing
interception, noting: “We have seen evidence that the present legal
framework authorising the interception of communications is unclear,
has not kept pace with developments in communications technology, and
does not serve either the government or members of the public
satisfactorily. A new, comprehensive and clearer legal framework is
required.”
That said, it does not support the earlier Intelligence and Security
Committee’s call for a single act of Parliament to govern how spy
agencies operate, arguing that “substantial” reform does not require
consolidating all existing legislation in this area. It is also not
supporting separate legislation for the police and the security
agencies.
The RSUI calls for new surveillance legislation “in this session of
Parliament to provide a new democratic mandate for digital
intelligence”, asserting that: “The present arrangements are too
complex to be understood by the citizen and have contributed to a
public credibility gap that must be addressed.”
It also sets out “ten tests” it believes any new legislation must pass
before it can be regarded as giving the police and the intelligence
agencies a “democratic licence to operate” — such as intrusion being in
accordance with the rule of law; being justified as necessary to
“explicit tasks and missions”; being “judged as proportionate to the
advantages gained”; being subject to an effective oversight regime, and
the applicable legal regime being transparent and clear, and
comprehensive to the public.
“The ‘secret parts of the state’ must draw and observe clear boundaries
between that which must remain secret (such as intelligence sources or
the identity of its employees) and all other aspects of its work which
should be openly acknowledged. Necessary secrecy, however, must not be
a justification for a wider culture of secrecy on security and
intelligence matters,” the report adds.
The 154-page report, entitled A Democratic Licence To Operate,
is based on a year of “investigation and consultation”, and draws on
views from investigative journalism, the Internet, law, policing,
political life, moral philosophy. Former heads of the three
U.K. intelligence and security agencies were also consulted.
Update: Responding to the report, civil liberties campaign group
Privacy International flags up the RSUI’s finding that the existing
technical oversight regime “does not check the code [that underlies
GCHQ’s interception capabilities], nor does it have the capacity to do
so” — arguing this is a clear deficiency and asymmetry in U.K.
surveillance oversight capabilities.
“GCHQ’s mass surveillance systems rely heavily on computer automation
and processing to crunch the large numbers of private communications
that it collects. When GCHQ’s processing goes wrong, it results in
‘large volumes of material erroneously collected’. Adequate technical
oversight is necessary to prevent this from happening,” it says.
Commenting in a statement, Privacy International’s deputy
director, Eric King, added: “It should be obvious that the most
technologically advanced government agency, with the most intrusive
powers, would require oversight bodies to have the independent
technical chops to match. Yet today, our oversight relies on technical
errors to be self-reported by GCHQ itself.
“Fundamentally, our safeguards against abuse will not be effective when
the core technical activities of GCHQ cannot be kept in check by
equally technically-equipped overseers. While recent efforts by the
Interception Commissioner have been made, they are essentially trying
to make the best of what is an impossible situation.
“While we applaud such efforts to navigate this problem, this is a
gaping structural deficiency, plain as day, that needs to be fixed. A
better resourced, more technically-equipped oversight body who can take
GCHQ to task should be a priority in the coming discussion of reform.”
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