Lessons from history for UK Home Sec Theresa May's Investigatory Powers Bill

Been there, read the law, got bulk-intercepted

Data Retention and Investigatory Powers Act 2014

The UK's 2009 Regulations were now left “dangling without too much visible support,” according to Bird & Bird’s Smith and it would take the coalition government more than three months to declare replacement legislation was necessary.

The Data Retention and Investigatory Powers Bill was introduced on “emergency” grounds on 14 July 2014 and – despite the objections of MPs - the Data Retention and Investigatory Powers Act 2014 (DRIPA) received Royal Assent on the 17 July.

The Government had not tidied up the issues resulting from the annulment of the EU Directive with DRIPA, but also took the opportunity “to expand – or as the Home Office would have it, clarify – the definition of communication service providers to clearly include webmail and social media platforms of all sorts.”

A sunset clause was begrudgingly inserted to DRIPA section 8(3) that stated the legislation would repealed on 31 December 2016. It is this clause that the Home Office cites for rushing ahead with the Investigatory Powers Bill.

That sunset clause, however, was not enough to placate all of the Bill's critics, however. A legal challenge brought by MPs David Davis (Con) and Tom Watson (Lab), which resulted in the High Court finding that sections 1 and 2 of DRIPA were incompatible with the British public's right to respect for private life and communications and to protection of their personal data as given through Articles 7 and 8 of the EU's implementation of the ECHR.

The ruling disapplied the legislation, although that disapplication was suspended until 31 March 2016 so the government could come up with a lawful alternative. The government has appealed against High Court's findings, though, and is travelling to the European Court of Justice to seek redress. The case will be heard on 12 April.

DRIPA will be repealed in its entirety if the Investigatory Powers Bill is passed. Ex-MP Huppert told The Register: “The Home Office are clearly struggling to come up with a workable piece of legislation - this has been worked on for at least six years now and is still not ready to be enacted. I dislike the idea of extending DRIPA - but I’d rather see that than a rushed piece of work now.”

The Counter-Terrorism and Security Act 2015

A Counter-Terrorism and Security Bill was accelerated following the January 2015 Charlie Hebdo attacks in Paris.

The initial Bill raised the hackles of civil liberties proponents but it would be a document containing 18-pages of amendments, tabled by Lords Blair, King, West and Carlile that provoked utter outcry.

The proposed amendments were widely regarded as an attempt to slip the discredited provisions of the Communications Data Bill 2012 into the new legislation - in a manner intended to bypass Parliamentary oversight. These amendments were not included in the final Bill following the public outcry and debate in the Lords, although the attempt to shunt them in remained a bruising experience for those who had believed the idea of a new Snoopers' Charter was dead.

How wrong that would prove to be.

Investigatory Powers Bill 2016

Before the 2015 general election had been even declared, it was confirmed Theresa May would retain her cabinet position as Home Secretary. She also said she planned to reintroduce the provisions of the Communications Data Bill provisions the Liberal Democrats had successfully blocked. A first draft was published on 4 November 2015

Three Parliamentary committees recommended more than 120 amendments but the Investigatory Powers Bill 2016 (PDF) that came in on March 1 saw few amendments made – and those seemingly only to address drafting issues witnesses had complained about.

The Bill is slated to bring most of the intelligence agencies' snooping powers under parliamentary rule for the first time.

However, while the security agencies had almost certainly always had access to Britons' web-browsing histories through instances of the royal prerogative, that power would now be extended to the police through the inclusion of ICRs. Other provisions include bulk hacking powers and the ability to coerce companies into facilitating the State's snooping.

Will it pass?

Critics of the Bill agree with the government's assessment of it being an improvement and much needed replacement for Part 1 of RIPA and the other legislation. But this this is a reflection upon the quality of the preceding laws.

Already the government is falling into past traps of trying to speed things through. The 258-page document was introduced to Parliament on 1 March but the Home Office is rumoured to be pushing for a third reading – and thus a vote on the Bill in the House of Commons – before the end of April.

Ross Anderson summed up its chances, and what it would mean for Britain’s technology industry: “Who will want to buy networking software or banking apps or routers (or anything else critical) from a UK company once the government has openly taken the power to secretly compel UK vendors to install spyware? That will cause real pain, and cost real jobs,” Anderson said. ®

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