SurveillanceNew U.K. surveillance review calls for a fresh start in the law for interception of communications

After a year of investigation and consultation, the U.K. Independent Surveillance Review has delivered its conclusions to Prime Minister David Cameron. The authors presented their report, A Democratic License to Operate, at the Royal United Services Institute yesterday (14 July 2015).

The Review shows how a democracy can combine the high level of security the public has a right to expect, and also ensure the respect for privacy and freedom of speech that are the foundations of a democracy. The panel unanimously calls on government, civil society, and industry to accept its recommendations and work together to put them into practice.

The final Report states:

Despite the disclosures made by Edward Snowden, we have seen no evidence that the British government knowingly acts illegally in intercepting private communications, or that the ability to collect data in bulk is used by the government to provide it with a perpetual window into the private lives of British citizens.

On the other hand, we have seen evidence that the present legal framework authorizing 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.

RUSI notes that the Review panel drew on the broad experience of its members, from the fields of investigative journalism, the Internet, law, policing, political life, moral philosophy — and including former heads of the three British intelligence and security agencies. The panel argues that new legislation is essential to provide a fresh start on a basis of mutual trust in the key principles the review sets out.

Recommendations
The Review Panel makes the case for a radical reshaping of the way that intrusive investigative techniques using the Internet and digital data are authorized that is fully compliant with the human rights framework.

It recommends that requests for interception for the prevention and detection of serious crime in future be authorized by a senior judge, and that the warrants that are signed by Secretaries of State for purposes relating to national security (including counterterrorism) should in future all be subject to judicial scrutiny, according to arrangements set out in the report.

This represents a significant strengthening of the present system of safeguards.

The Review examined the powerful digital techniques available to the intelligence agencies and police and accepts that they are needed.

The members of the panel are, however, unanimous in their view that the state should always be reluctant to invade the privacy of its citizens in an open society; it should never be a matter of routine. Intrusion into the privacy of the citizen is something about which the secret part of the state should rightly feel unease.

Like other recent reviews, the ISR highlights inadequacies in law and oversight and calls for urgent new legislation in this session of Parliament to provide a new democratic mandate for digital intelligence. The present arrangements are too complex to be understood by the citizen and have contributed to a public credibility gap that must be addressed. The Review therefore sets out ten tests [See annex and report] that any new legislation must pass before it can be regarded as giving the police and the intelligence agencies a democratic license to operate.

Launching the report, the chairman of the Panel, Michael Clarke, said,

With our report, the third major study of this subject this year, the government has a golden opportunity to make a fresh start by introducing legislation that provides a clear and legally sound framework within which the police and intelligence agencies can confidently operate, knowing that at all times they will be respecting our human rights. There is at present no shortage of mechanisms that regulate the way the Government runs interception programs, but they are complicated, overlapping and in some cases, creaky. There is a manifest need for new legislation. We have outlined ten tests that people in Britain should apply when they hear what the government proposes. If government proposals genuinely meet these criteria, the new legislation will be able to address justifiable public concerns, and also allow the police and intelligence agencies to get on with their job.

RUSI also notes that the Independent Surveillance Review was undertaken by RUSI at the request of the then Deputy Prime Minister Nick Clegg partly as a response to the disclosures made by Edward Snowden in 2013. It follows reports by the Parliamentary Oversight Committee, the ISC, and by the reviewer of counterterrorism legislation, David Anderson QC.

— Read more in A Democratic License to Operate: Report of the Independent Surveillance Review (RUSI, 2015)