SurveillanceU.K., U.S. responds differently to Snowden’s revelations about domestic surveillance

Published 5 November 2015

Legal analysts note that the United States and the United Kingdom have responded differently to the Snowden revelations. While in the United States steps have been taken to limit the NSA’s domestic surveillance powers, the United Kingdom is going in the other direction. The British government on Wednesday published draft legislation on surveillance and investigative powers – a legislation which is the government’s response to the documents leaked by Snowden. The U.K.’s draft bill not only embeds bulk data collection in law, but it enhances the surveillance and investigative powers of law enforcement and intelligence agencies.

Legal analysts note that the United States and the United Kingdom have responded differently to the Snowden revelations. While in the United States steps have been taken to limit the NSA’s domestic surveillance powers, the United Kingdom is going in the other direction.

The British government on Wednesday published draft legislation on surveillance and investigative powers – a legislation which is the government’s response to the documents given to the Guardian two and a half years ago by Snowden. The documents exposed the reach and scope of domestic surveillance by the NSA and its British sister agency, GCHQ.

The Guardian reports that the U.K.’s draft bill not only embeds bulk data collection in law, but it enhances the surveillance and investigative powers of GCHQ and other law enforcement and intelligence agencies.

The draft bill, introduced yesterday by Home Secretary Theresa May, is 180-pages long, but analysts say that some of the more important issues are not addressed.

One such issue is U.S.-British surveillance cooperation. The NSA, GCHQ, and law enforcement agencies in both countries rely on cooperation by communications companies, Internet providers, and social media groups. In the wake of Snowden’s revelations, relations between the intelligence agencies and these companies have become less cooperative, especially after it was revealed that in some cases these agencies exploited back doors in companies’ servers to break into the accounts of these companies’ customers.

Analysts note that most of the big Internet companies are based in the United States, so they may be compelled to cooperate with the NSA if a U.S. court issues a targeted warrant, but there is no reason for American tech companies to cooperate with GCHQ.

On Wednesday, Theresa May, in response to a question in the House of Commons, said this is something still to be worked out.

There is an important passage in guidance notes attached to the draft bill:

The draft bill places the same obligations on all companies providing services to the U.K. or in control of communications systems in the U.K.

However, the draft bill only provides for those obligations to be enforced through the courts against overseas companies in respect of communications data acquisition and (targeted and bulk) interception powers. The draft bill will include explicit provision to take account of any potential conflict of laws that overseas companies may face.

Legal experts say that resolution of this, if possible, will likely to require a new treaty between the United States and the United Kingdom to cover data sharing.

In the summer Congress voted the USA Freedom Act which restricts bulk data collection. The U.K. draft legislation, on the other hand, specifically authorizes bulk collection. The Guardian notes that U.K. intelligence agencies have been engaged in bulk data collection for decades, but have done so in secret. This practice is now to be made explicit.

The U.K. draft bill requires Internet providers to store all customers’ Web searches, while in the United States such practice is banned.

Analysts note that what the introduction of the new surveillance bill in the United Kingdom is in line with what is happening elsewhere in Europe in response to worries about Islamist terrorism. In France, Germany, and the Netherlands, new legislation augmenting surveillance powers has either been passed or is being considered. The U.K. proposed bill, though, goes farther than bills being considered in those three countries.