David Anderson Q.C.Independent Reviewer of Terrorism LegislationKCL National Security LawAccountability for Transnational Counter-Terrorism OperationsSurveillance Oversight and Accountability10 March 2016
“Privacy and Security: a modern and transparent legal framework” (March 2015, Parliament’s Intelligence and Security Committee)
“A Question of Trust” (June 2015, David Anderson QC)
“A Democratic Licence to Operate” (July 2015, RUSI)
Transparent new structure
Disclosure of all existing powers
One new power: internet connection records
Stronger authorisation / oversight
Science and Technology Committee
Intelligence and Security Committee
Joint Committee on the Draft Investigatory Powers Bill
“The Government has accepted the vast majority of the Committees’ [198] recommendations”
– Response to Pre-Legislative Scrutiny, Mar 2016
House of Commons 2nd reading 15 March Joint Committee on Human Rights Public Bill Committee: 18 members
10 Govt, 6 Labour, 2 SNP
Keir Starmer QC, Joanna Cherry QC
Public evidence sessions, line by line sessions
Report stage, 3rd reading Then to the House of Lords … End date: December 2016
Replaces Part I and IV of RIPA, + 65 stat powers
Other investigatory powers
Other intelligence powers
Extraterritorial effect
Bulk retention for use of police
Communications data retention
Internet connection records
“Targeted” equipment interference
Bulk retention for use of intelligence agencies
Bulk intercept / communications data
Bulk personal datasets
Bulk equipment interference
“The Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn.”
- ISC Report, February 2016
“It is entirely possible for a targeted “thematic” EI warrant to cover a large geographical area or involve the collection of a large volume of data....A bulk EI warrant must be foreign focused [and] additional access controls at the examination stage are required”
- Operational Case, March 2016, ch 8
“Directive 2006/24 .. is not restricted to a retention in relation (i) to data pertaining to a particular time period and/or a particular geographical zone and/or to a circle of particular persons likely to be involved, in one way or another, in a serious crime, or (ii) to persons who could, for other reasons, contribute, by the retention of their data, to the prevention, detection or prosecution of serious offences.….
It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary.
Digital Rights Ireland, CJEU GC Apr 2015, paras 59, 65
“[I]t is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. … In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens’ Convention rights.”
Szabó and Vissy v Hungary, Jan 2016, para 68
S & Marper (2009): 0-5 home, 17-0 away
Gillan (2010): 0-5 home, 7-0 away
The European Court “has in the past taken exception to the characterisation of interference by English courts with private life as being minor”
Lord Sumption, R (Catt) v MPC, 2015
“To the extent that the law permits, there would be wisdom in acknowledging and seeking to accommodate such differences, which owe something at least to varying perceptions of police and security forces and to the different (but equally legitimate) conclusions that are drawn from 20th century history in different parts of Europe.”
- A Question of Trust, 2.24
ISC, IPT, IOCCO, IntellSC, AQOT Annex 9
Operational Case for ICRs: 31 pages
Operational Case for Bulk Powers: 47 pages
Evidence of harm not avoidable by stringent safeguards?
Luxembourg: C-698/15 Davis/Watson
Strasbourg: Big Brother Watch, Liberty
“Dual lock” authorisation
Warranting judges – amicus, publication
Thematic warrants / modification
Protected categories: journalists, lawyers
Internet connection records
Novel and contentious
“prior independent authorisation”
Investigatory Powers Commission
Investigatory Powers Tribunal
Error reporting
Intelligence sharing
“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite) but on there being mechanisms to verify they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed.”
National Security LawResearch & Policy
Initiative
Surveillance Oversight & Accountability
IACL Constitutional Responses to Terrorism Research Group
Annual Conference 2016
Top Related