Is the Government's Communications Bill a Charter for Snoopers?
RUSI Analysis, 13 Jun 2012
By Margaret Gilmore, Senior Research Fellow, Homeland Security
Proposals by the government to allow law enforcement officers greater access to communications data will draw understandable criticism from privacy campaigners. However the draft Bill ensures a tighter scrutiny and oversight of such powers while providing an essential tool for police and counter-terrorism agencies.
By Margaret Gilmore, Senior Research Fellow, RUSI
The Government's Draft Communications Bill, will allow the police to keep pace with advances in technology when it comes to identifying criminals and their associates. The Bill will clarify who may access details about where and when we make phone calls or send emails. But it is likely to face a rocky ride through Parliament. Those concerned with civil rights will see it as a further erosion of privacy - enshrining in law the concept of holding information just in case it can be used in future against someone. Those groups, which will include many Liberal Democrats, will be looking for guarantees that the Bill, once it becomes Law, is not used to pry into private lives or compromise people like journalists and whistleblowers who may wish to withhold the identities of people they communicate with.
Benefits of the Bill
The Bill is a necessary response to modern life. It comes as a result of shifting trends in the way we communicate. A decade ago most communications were done by phone - now it is on the internet. In the past decade the police were able to access information on phone calls - and use it to identify who suspects were communicating with, and even where they were making the calls from. But the move to communicate increasingly via the internet is making that more difficult.
The Home Office is clearly not out to collect content in promoting this Bill, but it is dealing with a moving target when it comes to communications technology. Government statistics show communications data has provided evidence in 95 per cent of serious organised crime investigations and played a significant role in every major counter terrorist investigation over the past decade. Details of where mobile phone calls were made from helped police track the Soham killer Ian Huntley. Communications Data helped identify the men who drove a fuel-packed vehicle into Glasgow Airport Terminal. However, because the right to access this information is not as yet enshrined in law, law enforcement officers find increasingly they cannot get hold of it. A decade ago nearly every request for communications information was successful. Now some 25 per cent of requests can no longer be met and that gap is widening. The Bill aims to bridge this gap, forcing Communication Service Providers (CSPs) to hold the information for 12 months. Although many CSPs already hold information on internet traffic (in keeping with a European Commission Directive) they will now have to do so by law.
Addressing oversight and privacy concerns
But any move towards greater access by the authorities to our private information is bound to be politically difficult and efforts to introduce additional oversight at the same time may not go far enough to subdue those concerns. Two planned moves included in the Draft Bill are a necessary part of this - extending oversight by the Interception of Communications Commissioner to include the Communications Service Providers, and extending the role of senior judges on the Investigatory Powers Tribunal to investigate complaints about accessing Communications Data.
Furthermore instead of a rush to push the new Bill through the Home Office is wisely taking a cautious approach which will allow the major issues and concerns to be aired and debated publicly - and changed if need be, before the Bill even reaches full debate in Parliament. A Parliamentary Committee will initially scrutinise the plans, alongside an investigation by the Intelligence and Security Committee. This should iron out any deep-rooted flaws or concerns to help enable a smoother ride through Parliament.
In effect the Draft Bill tightens and strengthens the rules on Communications Data. One advantage is that local authorities which have accessed information in order to snoop on people's private lives will no longer be able to do so - they will be able to access information, for example when they suspect criminality, but only if they have successfully argued their case before a magistrate.
The Bill cannot address the issue of information kept by Providers abroad, although it will allow for the capture of information data passing through UK networks between foreign sites. There is it seems still a need for international and bi-lateral agreements on all aspects of the internet to cover this.
It will however, allow old principles of good policing to be applied to modern technologies. Nevertheless in its slow journey throw Parliament, Ministers will be wise to take on board the very real concerns of those who fear the privacy of the general public is being further and perhaps unnecessarily eroded.
Further Analysis: Technology, Law and Ethics, Terrorism, Domestic Security, UK, Europe