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Striking a balance between keeping us safe and protecting our privacy
06/11/2015 12:34:00

On Wednesday, the Home Secretary, Theresa May, published the draft Investigatory Powers Bill, one of the most important pieces of legislation that we will consider in this Parliament.

Her proposals were supported even by those who had expressed serious concerns about previous proposals to change the law in this area. Andy Burnham, Labour’s spokesman on these matters, said:

“We support the Government in their attempt to update the law in this important and sensitive area … From what the Home Secretary has said today, it is clear to me that she and the Government have listened carefully to the concerns that were expressed about the draft Bill that was presented in the last Parliament. She has brought forward much stronger safeguards, particularly in the crucial area of judicial authorisation ... this is neither a snooper’s charter, nor a plan for mass surveillance”.

And Nick Clegg, the former leader of the Liberal Democrats, was almost as positive:

“Her last Bill on this fraught but important subject hit the buffers. The current Bill is a much improved model, although I have the feeling that, under the bonnet, it retains some of the flaws of its predecessor … I welcome … the dropping of some of the key provisions on third-party data and encryption … On web browsing, I strongly welcome what looks at first like a significantly more proportionate and targeted approach”.

In brief, the Bill aims to do three things:

1. Ensure that our law enforcement and security and intelligence agencies have the powers they need to keep us safe.

2. Provide unprecedented detail about what these powers are and how they are exercised.

3. Enhance how the use of these powers is authorised and overseen to give people confidence that the Government is striking the right balance between keeping us safe and protecting our privacy.

Ensuring our law enforcement and security and intelligence agencies have the powers they need

The task of law enforcement and security and intelligence agencies has become vastly more demanding in this digital age.

People are increasingly using a variety of mobile devices to communicate with one another via the internet rather than telephones. This change in how people communicate with each other means that many of the long standing capabilities which have enabled law enforcement and security agencies to detect terrorists’ and serious criminals’ communications are becoming less available. Data which was available for traditional forms of communications, such as telephony, is not always held for internet communications because Communication Service Providers (CSPs) do not retain all the relevant data for their business purposes as they might billing data for a phone line.

The Government therefore believes there is a compelling case for law enforcement and intelligence and security agencies to have the power to identify which communications services a person or device has connected to - what is known as an internet connection record (ICR). An ICR is the internet equivalent of a phone bill, not a person’s full internet browsing history.

Being transparent about what these powers are and how they are exercised

The Bill will provide powers for law enforcement and security and intelligence agencies and the armed forces to:

• obtain communications data;

• intercept the contents of communications;

• use equipment interference powers to obtain private data covertly from computers; and

• use bulk data to identify previously unknown threats and establish vital connections between suspects.

All of these powers already exist, but the Bill will clarify which public authorities can use them, for what purposes and what authorisation is required. No other country in the world has been this transparent about the use of investigatory powers

Striking the right balance between keeping us safe and protecting our privacy

This draft Bill is very different from the draft Communications Data Bill which was published in 2012. It will not require CSPs to retain communications data about the use of overseas services. It does not contain any provision to enforce data retention obligations against foreign telecommunications companies. It does not contain any new powers relating to encryption. Local authorities will have no access to ICRs.

There are also significant differences when it comes to the authorisation required for the use of certain powers. The Secretary of State will, as now, need to be satisfied that an interception is necessary and proportionate before a warrant can be issued. If this Bill is passed, however, the warrant will not come into force until it has also been approved by a judge. The same ‘double lock’ will apply to all of the most intrusive powers in the Bill, including the authorisation of Equipment Interference warrants and the authorisation of all bulk warrants.

In addition, the Government is strengthening the oversight arrangements for the use of these powers. It will create a powerful and independent Investigatory Powers Commissioner, a senior judge supported by a team of expert inspectors with the authority and resources to effectively and visibly hold the law enforcement and security and intelligence agencies to account.

Next steps

The draft Bill will be subject to public consultation and pre-legislative scrutiny by a Joint Committee of Parliament. Once the Joint Committee has reported, a revised Bill will be introduced to Parliament in the spring, when it will be subject to the normal Parliamentary scrutiny process.

I hope this reassures you that the Government is striking the right balance between keeping us safe and protecting our privacy.

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Gavin Barwell, 133 Wickham Road, CR0 8TE, Tel  020 8663 8741      © Gavin Barwell  2017       Promoted by Ian Parker on behalf of Gavin Barwell, both at 36 Brighton Road, Purley, CR8 2LG