With Theresa May becoming the new prime minister of the UK, CAGE publishes this article to remind of one of the most damaging policies she has put to parliament yet.
In a fair and just society everyone must be equally accountable, especially those in authority. Any fettering of the oversight required of those in power must be challenged and opposed. Citizens must also enjoy the presumption of innocence and not be viewed through a securitised lense. Any overreach on individual freedoms must be justified through a clear and transparent process.
Noam Chomsky highlighted the balance of power that should exist in a just society: “Any form of authority… must be assumed to be illegitimate, it carries a burden of proof… it must demonstrate its legitimacy”.
However, in the proposed Investigatory Powers Bill, those in power, as opposed to the ruled masses, “are deemed to be good, and are therefore given the benefit of the doubt” as Heather Brooke, professor of journalism at City University phrased it. Instead of the executive being scrutinised and held to account, we instead see a “bill [that] is characterised by a clear anti-democratic attitude” and which “puts us all under the spotlight of suspicion”.
Britain leading in liberty eroding CVE and now Snooper’s Charter
In the wake of the introduction of the CTS Act, government power is exceeding anything seen before, closing down debate and stifling dissent through state sponsored programs like PREVENT. Now, the government through the Investigatory Powers (IP) Bill (the ‘Snooper’s Charter’), seeks to intrude into our most personal spaces through legitimising mass surveillance.
Not only do they wish to do this in Britain, but they also want to provide an example for the rest of the world. The prime minister Theresa May, then home secretary, described the IP Bill said as “establish[ing] a world-leading oversight regime”. As with PREVENT, which a DoE spokesman said “is held up across Europe as being one of the best programmes for identifying young people who could be at risk of radicalisation and extremism”, Britain seeks to make the IP Bill another of its landmark policies it can present to the world.
According to NSA Whistleblower Edward Snowdon, the IP bill represents “the most intrusive and least accountable surveillance regime in the West”. This is a view reflected by Privacy International who sees the IP Bill as granting “powers that no other democratic nation has had the audacity to attempt”.
Surveillance silences dissent and creates a mediocre society
In a discussion regarding privacy, The Intercept’s Glenn Greenwald mentioned that “people who know they could be watched act obediently, compliantly and without dissent”. The authorities understand that a mass surveillance system is unpalatable for the majority of people to accept, but through the creation of fear and the mass marketing of fear based narratives, people naturally flee to authority and accept corresponding authoritative practices in the name of ‘security’. In effect, however, surveillance makes society less safe, since it forces unpopular views underground where they flourish unmitigated by open debate.
Mass surveillance not only is the antithesis to a free and open society where controversial ideas can be debated and refined, it also serves to silence dissent and promote conformist behaviours. In a study Elizabeth Stoycheff, assistant professor at Wayne State University, found that “government’s online surveillance programs may threaten the disclosure of minority views and contribute to the reinforcement of majority opinions”. Even those who regarded government mass surveillance programs as necessary, “readily conform their behavior—expressing opinions when they are in the majority, and suppressing them when they’re not”.
Surveillance according to Elizabeth Stoycheff “seems to be enabling a culture of self-censorship because it further disenfranchises minority groups. And it is difficult to protect and extend the rights of these vulnerable populations when their voices aren’t part of the discussion”.
Research as far back as the 1950s showed that surveillance created a society where mediocrity rules, and it is commonly accepted that mass surveillance causes anxiety, stress and depression – and an acute distrust between those being surveilled at the expense of their liberty, and the state. This results in a society that is compliant on the surface, but vastly unstable beneath.
Three UN Special Rapporteurs submitted evidence to the Draft Investigatory Powers Bill Joint Committee, stating that the bill “will ultimately stifle fundamental freedoms and exert a chilling effect on the rights to freedom of expression and freedom of association”.
“Basically, the Home Office doesn’t do privacy, ” said Lord Strasburger, who sat on the Joint Select Committee scrutinising the Bill.
The government’s clampdown translates to no safe space for anyone
The IP Bill is so intrusive that in order to justify blanket surveillance of everyone, the former prime minister provides the most extreme of examples. “As prime minister, I would say to people, ‘Please let’s not have a situation where we give terrorists, criminals, child abductors, safe spaces to communicate”, he said.
Greenwald, speaking of this tactic, said governments pick the most unsympathetic cases or persons in order to “abridge their free speech to make a precedent”. Instead of treating criminals through a rule-of-law based justice system, the state rather skirts this pressing issue, and chooses rather to surveil its citizens, erring on the side of increasing its own power, as opposed to trusting its judiciary to get on with their work.
Not only does the IP Bill tamper with due process (more on that later), the government is willing to compromise the integrity and security of our communications. In its submission to the Joint Committee on the Draft Investigatory Powers Bill, Privacy International (PI) states that the IP Bill “undermines the security of digital data”. The Bill will legitimise state sponsored hacking or “equipment interference”, a euphemism, which has the risk of “fundamentally impact[ing] on the security of computers and the internet”.
“It incentivises the state to maintain security vulnerabilities that allow any attacker potential access to our devices,” said PI.
David Cameron’s attempt to close down “safe spaces” for terrorists will in fact leave us all potentially unsafe and vulnerable. Creating backdoors to encryption, allowing hacking and the bulk collection of our data, in practice will nullify encryption that actually works.
Mass surveillance fails to protect us
There is little evidentiary basis that mass surveillance is essential in protecting nations from terror attacks. A report by the New America Foundation found that mass surveillance “had no discernible impact on preventing acts of terrorism” and that “traditional investigative methods initiated the majority of terrorism cases”. The US Privacy and Civil Liberties Oversight Board report on surveillance found that NSA mass surveillance had “minimal value in combating terrorism beyond what the government already achieves through these and other alternative means”.
Greenwald, speaking on this issue, said “very little of the spying apparatus was dedicated to terrorism”.
“It’s impossible to find out who will do an attack because you collect too much data,” he said. The reports which followed the NSA leaks showed that along with GCHQ, the NSA was in fact gathering information on journalists, activists and NGOs.
William Binney, the former Technical Director of the US National Security Agency, said in evidence to the Draft Investigatory Powers Bill Joint Committee: “Analysts cannot get through the material, which means that they fail to see the threats. The end result is dysfunctionality among the analysts and no prediction of intention or capabilities, no stopping of attacks, and people die.” He goes further and claims that a targeted approach, as opposed to mass surveillance, could have had the opportunity to stop 9/11 before it occurred.
This view is reflected by the former head of MI5, Dame Stella Rimington, who said: “Intelligence services can strangle themselves if they have too much information because they can’t sort out from it what they need to know and what they don’t need to know”. Her position is that intelligence gathering ought to be “pretty focused and targeted”, something the IP Bill lacks.
‘National Security’ a justification for the erosion of the rule of law
A closer look at the IP Bill, shows that it picks up the same broad definitions as the CTS Act. It does not define or refine the term ‘national security’ or ‘economic well-being’, both used as grounds – at the government’s own definition and discretion – for conducting mass surveillance on populations.
‘National security’ cannot justify the erosion of the rights of so many. If there is a need to investigate an issue, normal criminal justice procedures should be followed: a judge should see the evidence and provide a warrant for a single individual. ‘Economic well-being’ in itself is open to subjective interpretation by authorities based on their own financial interests.
Leaving these terms undefined, states PI, “leaves authorities an almost unlimited degree of discretion in determining which events are relevant to national security and does not require any assessment of the level of threat to justify secret surveillance”.
On top of the broad nature of so-called “bulk” warrants, PI states a further concern: there are insufficient safeguards to prevent abuse when it comes to “examining, sharing, retaining and deleting material”, especially since the “the disclosure and copying of information obtained under a “bulk” warrant is broadly permitted so long as the information is or is likely to become necessary in the interests of national security or other relevant grounds”.
Because data can also be retained indefinitely and can be copied, shared and retained “for any grounds under which the “bulk” warrants can be issued”, populations and individuals are in effect perpetually spied upon, with little recourse to challenge this state of affairs.
‘Thematic warrants’ undermine the supposed oversight of the judiciary
Further cause for concern is the use of “thematic warrants”, warrants signed off by a judge, not for individuals, but rather for categories of people and behaviour patterns. It is not necessary, under these warrants, to define the individual targeted – it is enough to simply identify a suspect group or community. This alarming provision facilitates a public space where individuals are policed according to their behaviour and who they associate with, violating fundamental freedoms of expression and association, and clearly facilitating racial and religious profiling.
“The Home Office is trying to disguise this broad new power as ‘targeted surveillance’,” states PI. “While the draft bill contains highly problematic sections that outline ‘bulk’ surveillance powers, these thematic warrants are buried in the so-called ‘targeted’ provisions that authorise intercepting the communications and interfering with the equipment (a.k.a. hacking) of people who reside in the United Kingdom.”
These warrants also “delegate the choice as to whose privacy will be interfered with to the police or intelligence agencies, increasing the risk of arbitrary action and undermining the implementation of effective judicial authorisation”.
How and when such a warrant may be issued is unclear, but “MI5 explained to the ISC that it applies for a thematic warrant ‘where we need to use the same capability on multiple occasions against a defined group or network on the basis of a consistent necessity and proportionality case . . . rather than [applying for] individual warrants against each member of the group.’ This explanation suggests a thematic warrant is a matter of convenience – resulting in certain efficiency gains – rather than of operational necessity.”
Quasi-judicial oversight means politicians still dictate surveillance
Such stipulations leave the warrant open to abuse, and facilitate almost certain judicial approval. David Davis Conservative MP summed up the process as “flawed” since “judges would only be allowed to refuse warrants on judicial review principles, he said, which meant they could only consider procedure, not evidence.” “Judicial review is about procedure,” he said. “It’s not about the facts and the evidence. As long as the home secretary has followed the correct procedure, the judge will go along with it. Judges hate overturning the executive, and it happens very rarely.”
Through these subtle manipulations, the Bill is in effect tampering with due process principles, which guarantee the presumption of innocence until proven guilty in a court of law. Not only is individual and community liberty at stake, but the creation of a parallel quasi justice system where politicians still hold all the power, is a grave cause for concern.
This is further facilitated by a new approach created by the Bill, involving a “Judicial Commissioner”, which has the appearance of some sort of judicial process, but is in effect toothless since ministers (politicians) will continue to authorise warrants before passing them to a Commissioner “and all they’ll have the power to do is “review” the decision,” states Liberty.
“Relegated to little more than glorified rubber-stampers, they’ll only be able to disagree with outrageously unreasonable requests.If Commissioners feel a decision is wrong, they can explain their reasons – but their word isn’t final. Ministers can ignore their response and approach a more senior Investigatory Powers Commissioner to look at the warrant again.”
“As if their role weren’t toothless enough, the Bill allows modifications to be made to warrants with no judicial oversight at all. And if a request is “urgent”, Ministers can bypass judges altogether.”
Indeed, what is the point of judicial oversight if “the Bill does not mention “reasonable suspicion” – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security”?
Another expansion of the WoT state at the cost of individual freedoms
The principles of the rule of law are deeply enshrined within the Magna Carta. However, the War on Terror has seen an erosion and even disregard of these principles, leading to what has been called the “Guantanomisation” of the law and policies. Under the guise of the War on Terror, states have systematically increased their power and absolved citizens of their freedoms.
The Investigatory Powers Bill is a manifestation of everything that is wrong in the ‘War on Terror’. The intrusion, surveillance, lack of accountability and securitised approach to governance is what CAGE has consistently campaigned against. CAGE deems the proposed legislation unnecessary. The proposed Bill is an attack on our freedoms which must be vehemently challenged and opposed.
(CC image courtesy of Number 10 on flikr)
(NOTE: CAGE represents cases of individuals based on the remit of our work. Supporting a case does not mean we agree with the views or actions of the individual. Content published on CAGE may not reflect the official position of our organisation.)