Theresa May's communications data draft bill is far too broad and needs to be slimmed down, concluded MPs and peers who have spent many months scrutinising the Home Secretary's lambasted plans to massively increase the surveillance of online activity in the UK.
The joint committee, chaired by Lord Blencathra, said:
Our overall conclusion is that there is a case for legislation which will provide the law enforcement authorities with some further access to communications data, but that the current draft bill is too sweeping, and goes much further than it need or should.
We believe that, with the benefit of fuller consultation with CSPs [communications service providers] than has so far taken place, the government will be able to devise a more proportionate measure than the present draft bill, which would achieve most of what they really need, would encroach less upon privacy, would be more acceptable to the CSPs, and would cost the taxpayer less.
A 101-page report published by the committee this morning highlighted many shortcomings in May's draft bill, which was tabled in June this year.
Among other things, it noted that there appeared to be a lack of ability among cops to make "effective use" of the data that is already available and recommends that this matter be addressed as a "priority". The report added that no fresh law would be required for this but that additional costs would be involved.
The committee said that more consultation was needed among technical experts, police bodies, public authorities and civil liberties groups and that those talks should be shaped around a "narrower, more clearly defined set of proposals on definitions." It also recommended that the bill should make it clear exactly why a gap in surveillance needs to be filled.
The peers and MPs said:
It is acknowledged on all sides that the volume of communications data now available is vastly greater than what was available when RIPA [the Regulation of Investigatory Powers Act 2000] was passed. The much quoted [Home Office] figure of a 25 per cent communications data gap purports to relate to data which might in theory be available, but currently is not.
The 25 per cent figure is, no doubt unintentionally, both misleading and unhelpful.
The report also warned that communication service providers needed reassurances about the retention of data as laid out in May's draft bill. It said:
"Even though many of them [CSPs] are prepared to cooperate on a voluntary basis, they should also be told what obligations might be imposed on them. For many, their willingness to cooperate voluntarily will be reinforced if there is a statutory basis for the requirement."
The report called on Clause 1 of the draft bill [PDF] to be rewritten with a "much narrower scope, so that the Secretary of State may make orders subject to Parliamentary approval enabling her to issue notices only to address specific data gaps as need arises."
The Home Office wanted to keep clause 1 wide, May has argued, to "future proof" the law to allow for access to new types of data that may emerge. The committee dismissed that suggestion, however, and said:
"We do not accept that this is a good reason to grant the Secretary of State such wide powers now. We do not think Parliament should grant powers that are required only on the precautionary principle. There should be a current and pressing need for them."
The report noted that the Home Secretary may in future need the power to require the retention of other data types, but it urged caution in how any law relating to that need might be introduced.
"Parliament and government both need to accept that legislation that covers the internet and other modern technologies may need revisiting and updating regularly," the committee said.
The MPs and peers recommended that this might be done via an order subject to the super-affirmative procedure to guarantee greater parliamentary scrutiny than a standard affirmative order, which is currently proposed in the bill. If the committee's method is adopted by the Home Office the process could take anything up to nine months to be scrutinised by those sitting in the Lords and the Commons.
The report questioned whether that clause should allow notices that require CSPs to retain web logs up to the first "/". The politicos and peers said such a plan posed a "fundamental question" about the draft bill and added that parliamentarians needed to debate that issue further.