The Independent Reviewer of Terrorism Legislation, David Anderson Q.C, has published his report on the UK’s surveillance and counter-terrorism regimes. The report is likely to have important implications for government plans to introduce surveillance legislation on the model of 2012’s draft Communications Data Bill (a.k.a. the Snoopers’ Charter).
Anderson places obstacles in the way of re-introducing key aspects of the Communications Data Bill, in particular the compulsory retention of third party data.
13. c. There should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case for it has been made out (as it has not been to date) and the legal and technical issues have been fully bottomed out.
Other aspects of the draft Bill are contemplated, but Anderson argues that these require “a detailed operational case needs to be made out”.
13. b. The compulsory retention of records of user interaction with the internet (web logs or similar) would be useful …But if any proposal is to be brought forward, a detailed operational case needs to be made out, and a rigorous assessment conducted of the lawfulness, likely effectiveness, intrusiveness and cost of requiring such data to be retained.
The report is also damning in its criticisms of the Regulation of Investigatory Powers Act, which is one of the main laws governing interception of communications metadata and the content of communications.
35. RIPA, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.
However, the report will disappoint those who hoped for a condemnation of the principle of mass surveillance.
12. The power to require service providers to retain communications data for a period of time should continue to exist, consistently with the requirements of the ECHR and of EU law.
Anderson also endorses the “capability of the security and intelligence agencies to practise bulk collection of intercepted material and associated data”, although he recommends new safeguards. Perhaps the most important among these is the recommendation that Ministers should lose interception warrant powers.
16. All warrants should be judicially authorised by a Judicial Commissioner at a new body: the Independent Surveillance and Intelligence Commission (ISIC).
The government have already hinted that they will reject judicial warrants for interception. A Downing Street spokesperson said:
The starting point on the issue of authorisation of warrants is that we need a system with proper oversight that allows us to respond quickly and effectively to threats of national security or serious crime. As part of our work now on the upcoming bill we will need to consider the recommendations that Anderson has set out today.
Responding to the Anderson report in a statement to the House of Commons, the Home Secretary Theresa May said that the Investigatory Powers Bill (the successor to the Communications Data Bill) would be published in draft form in the autumn. This will be subject to pre-legislative scrutiny by a Joint Committee of Parliament, and is intended to ultimately take effect by the end of 2016.
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