IPB The Joint Committee set up to provide pre-legislative scrutiny of Britain's Snoopers' Charter has made 86 recommendations to the government. The recommendation made most often was the one most of us yelled at the screen when we first clapped eyes on it: explain what is meant by these terms.
Pleasingly, the nebulous phrase "Internet Connection Records" was one such phrase whose meaning the government was asked to clarify.
While lacking the stern language of the Intelligence and Security Committee's offering, and the technical competence of the Science and Technology Committee's analysis, the Joint Committee's 198-page report into the draft Investigatory Powers Bill provided Theresa May with the longest explanation yet of why she cannot continue to attempt to rush legislation into the statute books.
"There is much to be commended in the draft Bill, but the Home Office has a significant amount of further work to do before Parliament can be confident that the provisions have been fully thought through," Lord Murphy of Torfaen said in a canned statement.
As the report admitted: "It was not possible at this stage to resolve every issue of controversy associated with the draft Bill. In some areas we have simply reported these disagreements and flagged the issues on which we believe particular attention should be concentrated when the Bill itself is introduced."
The committee's inability to agree on nine key recommendations is reflected in the formal minutes of their votes, which the committee decided to append to the report. The formal minutes show failed attempts to ask the Government to consult on ways to protect British citizens from GCHQ's bulk snooping and hacking powers, which are intended to be limited to “overseas-related” communications, and on ways to increase the Judicial oversight and decrease the Executive power when it comes to surveillance.
Internet Connection Records
One of the most significant areas of the draft legislation to be heavily scrutinised was Internet Connection Records (ICRs), which increasingly seem unlikely to be included in the final revised bill. The Joint Committee did not agree with Science and Technology Committee's notion that taxpayers should wholly foot the costs of compliance with the bill, however it concurred that the phrase "Internet Connection Records" was confusing, not properly defined and remained to be completely justified.
ICRs are most onlookers' favourite area to be dropped from the bill. The chair of the Science and Technology Committee, Nicola Blackwood MP, stated at the time of that committee's report that questions remain “as to how collecting and storing ICRs is technically possible”.
Theresa May had previously dismissed such concerns before Parliament by claiming that: “If someone has visited a social media website, an internet connection record will only show that they accessed that site, not the particular pages they looked at, who they communicated with, or what they said. It is simply the modern equivalent of an itemised phone bill.”
The Joint Committee disputed this, however, stating that: “We do not believe that ICRs are the equivalent of an itemised telephone bill. However well-intentioned, this comparison is not a helpful one.”
Quis custodiet ipsos custodes?
The draft legislation also sought to update the surveillance powers the state affords itself, including oversight of the use of those powers: “The major change which would be brought about by the draft Bill is the creation of a new judicial oversight body and the much greater involvement of judges in the authorisation of warrants allowing for intrusive activities,” wrote the committee.
The committee stressed the value of the independence of such an oversight body, and suggested dissatisfaction with the Home Office's current proposal.
It is unclear to use why the Home Office chose to create a group of Judicial Commissioners rather than creating an Independent Intelligence and Surveillance Commission as recommended by David Anderson QC, a recommendation endorsed by the knowledgeable and experience Interception of Communications Commissioner's Office.
It added that whatever the oversight body, it should have the “the power to instigate investigations on their or its own initiative. This is vital to ensure effective and independent oversight.”
The Government was also asked to clarify that it was not restarting the Crypto Wars.
The Government still needs to make explicit on the face of the Bill that CSPs offering end-to-end encrypted communication or other un-decryptable communication services will not be expected to provide decrypted copies of those communications if it is not practicable for them to do so.
In addition, the committee also made several recommendations that a Code of Practice be published alongside the bill clarifying how it is to be implemented.
The committee recommended that the Government publish a fuller justification for each of the bulk powers alongside the Bill, and that the examples be assessed by an independent body such as IOCCO. It also recommended that a post-legislative review is scheduled to take place in five years time, to see how these powers have all been used. ®
Alexander J Martin is reporting from Westminster, where he is listening to the committee members. We will update this story later this morning.