Comment From the day the UK government unveiled its Investigatory Powers Act two years ago, Liberty warned it that the authoritarian surveillance powers the proposed legislation contained were unlawful.
This Snoopers’ Charter passed through Parliament anyway, giving police, spies and a whole host of public bodies the power to access every website we visit, every phone call we make and every message we send.
On Thursday 30 November – less than a year after it passed and in response to a damning court ruling – ministers launched a public consultation asking for help to make its regime comply with people's basic rights. It’s a humiliating move for a government that routinely treats our rights and freedoms with contempt but the plans do contain baby steps in the right direction.
On the surface, the government is introducing a restriction along those lines – but it has redefined “serious crime”, rendering it absurdly broad
At the moment, the authorities are allowed to spy on the public to collect taxes, protect public health and regulate financial services. In a belated concession to common sense (and the courts) ministers have admitted those purposes don’t justify wholesale breaches of everyone’s fundamental right to privacy.
Last year, the European Court of Justice ruled that collecting our communications is a serious intrusion that can only be justified to investigate serious crime.
But is it serious?
On the surface, the government is introducing a restriction along those lines – but it has redefined “serious crime”, rendering it absurdly broad. It includes any offence punishable by six months in prison – think overstaying a visa – and any crime that involves sending a communication. Such a definition is so sweeping as to be meaningless. Not only does it fail to honour the court’s ruling – it actively undermines it. Ministers should be ashamed.
The Investigatory Powers Act already contains two contradictory definitions of serious crime, after the government created a weaker version to allow it to analyse people’s internet records. With this new addition, there will be three separate and at-odds definitions of “serious crime” – when it should be a very simple concept in one law.
UK.gov admits Investigatory Powers Act illegal under EU lawREAD MORE
The government needs to face up to reality, the court, and basic common sense, and maintain one sensible definition of serious crime throughout the Act. It should be the standard one: crimes incurring a sentence of three years or involving violence.
Elsewhere, ministers have decided to go along with the court’s assertion that surveillance warrants need independent sign-off. They’re planning to introduce an independent board called the Office for Communications Data Authorisations – which sounds pretty good. Except that, to guarantee independent authorisation, judges should be the ones signing these warrants off. These are legal determinations where rights are at stake. And there is a get-out clause. In “urgent cases”, police can simply grant themselves permission to snoop. So, the safeguards required by law to access our records have been dramatically diluted by the government.
But it is the heart of the judgement that government flatly refuses to address – that the very fact of retaining bulk records on the population is a breach of human rights.
The court acknowledged that such general and indiscriminate retention of data could change people’s behaviour and cause them to feel watched. It also said that if our rights are breached by the agencies’ spying, we should be told – allowing people the chance to challenge wrongful invasions of their privacy in court. Allowing them to seek justice. On this too, the government is burying its head in the sand.
But we won’t allow it to keep undermining our privacy, our freedom of speech, our right to protest and our free press – because these are the rights that keep our country free and democratic. It’s as fundamental as that. So we’re challenging the government again.
In February 2018, we will challenge the mass retention of everyone’s data in court for the first hearing in our legal case against the Investigatory Powers Act. And we’re challenging the authorities’ powers to listen to everyone’s phone calls, read everyone’s messages and hack everyone’s phones without suspicion of wrongdoing.
Thanks to the 2,000 people who supported our crowdfunder, the people are behind us. We’ll keep pushing until everyone in the UK is treated as a citizen, not a suspect. ®
Martha Spurrier is a human rights lawyer and director at Liberty