“The UK has just legalised the most extreme surveillance in the history of western democracy. It goes further than many autocracies.”
The IPA provides the UK government with the legal framework to spy on every citizen’s telephone conversations, emails, text messages, and web browsing history.
It also mandates that tech companies backdoor their encrypted products so that the government can access communications made using them, and introduces harsh penalties for whistleblowers who try to alert customers that their products are not secure
A new high court ruling, however, has thrown the government’s mass surveillance plans into disarray. On Friday, April 27, Lord Justice Singh and Lord Justice Holgate declared the IPA incompatible with European law, and further stipulated that it must be revised to comply with EU law by the start of November this year.
The Investigatory Powers Act 2016 is an extension of the Data Retention and Investigatory Powers Act 2014 (Dripa), and contains much of the legislation contained in the original.
In January this year, appeal court judges ended a long-running legal battle, declaring that DRIPA was “inconsistent with EU law” on the grounds that it placed no meaningful restrictions on what data could be collected, and that anyone from a very long list of government agencies could access this information without “prior review by a court or independent administrative authority”.
In a futile effort to head this ruling off, the government last year introduced various safeguards which it hoped would placate growing concern over the astonishing breadth and scale of the IPA’s mass surveillance provisions.
A report by Big Brother Watch, however, was very skeptical of the changes, which it said “clearly seek to reject or evade significant requirements of the CJEU’s judgment.”
Since the IPA is based heavily on Dripa, the new ruling comes as a surprise to no-one.
Central to the government’s attempt to placate critics of its legislation is a new surveillance watchdog agency - the Investigatory Powers Commissioner’s Office (IPCO). Headed by Lord Justice Fulford, this will employ about 70 staff, including 15 serving and retired judges tilted “judicial commissioners”.
It remains unclear, however, how far this oversight extends. Ministers can authorize “intercepts”, which then require “judicial approval” before they can be put into effect. This is the much vaunted double-lock protection that the government has been keen to emphasize.
But the double lock provisions only apply to a tiny proportion of the data collected and shared among a large number of government bodies with no clear limitations in place.
Indeed, given that there is no clear-cut oversight over many government departments having full access to every citizen’s internet and phone records, it must presumably only cover real-time monitoring (aka “bugging”) of communications, breaking into people’s houses, infecting laptops with malware, and other highly invasive TAO style operations.
The 70 non-judicial staff to be employed at IPCO are presumably an attempt to address this problem, but given the huge amounts of data that is being routinely collected on each and every UK citizen, it is impossible to see how any meaningful oversight can be achieved in this way.
And even when a warrant is approved by a judicial commissioner, there are grave concerns that such approval will amount to little more than a rubber stamp. The 15 serving and retired judges working with IPCO will be hand-picked by the government and are unlikely to have the technological expertise or understanding of covert surveillance necessary to make informed decisions on ministerial edicts.
ProPrivacy | Expert Analysis
The government has not made any public response to the high court ruling. A desire for the UK to be free from EU human rights legislation has long been a motivation for pro-leave campaigners, and this ruling is only likely to fuel demands for a “hard Brexit” among Tory hardliners.
It is interesting, however, that the judges stipulated the changes must be made within six months. This prevents the government from stalling reforms until the UK might not be subject to EU laws. The government’s energies are now focused on Brexit, so it may decide to simply suspend the IPA until such time as it can act without having worry about pesky EU human rights legislation.
The IPA is Prime Minister Theresa May’s pet project, however, so it seems certain that if Brexit goes ahead and the current government survives its attendant upheavals, it will fully implement the legislation at the earliest opportunity available.
This leaves the possibility of Britain becoming the most extreme surveillance state in the so-called ‘free world’ to the fickle winds of Brexit…
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