Investigatory Powers BillIs everyone a suspect?

Is everyone a suspect?

Professor Mike Jackson

The Queen’s Speech announced new monitoring powers “to tackle terrorism”. This proposed bill entitled the ‘Investigatory Powers Bill’ has its roots in the ‘Communication Data Bill’ (nicknamed ‘the Snooper’s Charter’) which the government intended to introduce in the 2012-13 Parliamentary session. The Snooper’s Charter was eventually dropped due to opposition from the Liberal Democrats. The details of the new bill are not fully known as yet but it is believed that it will give the police and security forces even greater powers than those set out in the 2012 draft.
What will almost certainly appear in the new bill is the requirement for Internet Service Providers (ISPs) and mobile phone operators to record the activities of subscribers. A record of texts, emails and phone call will be held for at least a year. This rule will apply to all subscribers and not just those who might be under suspicion of terrorist activity. The advantage of this is obvious because it will ensure that when the security forces have identified one suspect they can also check out other people who have had contact with that individual. Mobile phone operators and ISPs will need to invest in the infrastructure to support this requirement and will inevitably pass these costs on to consumers.

Another area the bill is likely to address is encryption. A number of apps allow users to encrypt messages so that third parties (who may potentially be criminals) cannot intercept and read them. The problem for the government is that this also makes the content of the messages unavailable to the security forces. A possible solution is to legislate against the use of encryption which is so complex that it prevents government bodies breaking it. The problem with this approach is that if the security forces can break the encryption then hackers will as well.

Preventing terrorism
The government will justify the imposition of these powers as a means of preventing terrorism and ensuring the security of the country. There will be opposition from a number of groups who are concerned that UK citizens will be losing their right to privacy. In the past this has always come from left leaning organisations. Recently, however is clear that right of centre figures such as Rand Paul are seeing laws like this as evidence that the nanny state is interfering too much in people’s lives. Senator Paul successfully blocked the extension of the Patriot Act which was regarded as the US’s equivalent of the Snooper’s Charter. Subsequently, an act known as the Freedom Act which grants the government more limited powers than those set out in the Patriot Act has been passed by the US congress.
Unless the Conservative Party contains a significant number of MPs who have views which coincide with Senator Paul’s, the Home Secretary should not experience any problems in steering the Investigatory Powers Bill through the House of Commons. Although the Liberal Democrats have indicated they might oppose it, it is not clear that Labour would.

The proverbial man or woman on the Clapham omnibus would tend to side with the assertion that the proposals are necessary for the protection of the country and do not cause too great a threat to the privacy of the individual. The general assumption would be that people “who have nothing to hide” have nothing to fear from this bill.

A question of privacy
And yet there is evidence that the general public can be greatly exercised about privacy under certain circumstances. Nobody would dispute the fact that the number of people harmed on our roads in a year greatly exceeds the number subjected to terrorist activity. It might therefore be supposed that a device which could significantly reduce the number of road casualties would be enthusiastically welcomed. Such a device would be fitted into a car and the vehicle owner’s expense and its purpose would be to inform the police every time the vehicle driver exceeded the speed limit. Could such a device be constructed? Yes, almost certainly. Would it contribute to the reduction of accidents on the road? Yes, almost certainly. Would it be accepted by the general public? No, almost certainly not.
The British have shown that they have no concerns about breaches of privacy which might occur due to the use of CCTV surveillance cameras. The Daily Telegraph reported in 2013 that there was a CCTV camera for each eleven people in the population. Surveys have shown that UK citizens, in contrast to those in other European countries, think that this is a good thing. So the camera is highly regarded. Except when it’s a speed camera. Speed cameras are widely reviled and cited as examples of the nanny state in action. They are seen as invaders of privacy. This is despite the fact that everyone acknowledges that these cameras only catch individuals that break the law.
The point is that privacy does matter to citizens but only in certain contexts. The protests about the way the Investigatory Powers Bill invades privacy which come from organisations such as Liberty and the Open Rights Group need to be taken seriously. The public may initially accept the bill not understanding what the associated loss of privacy may mean. In the future, however, the UK may have to follow the path taken in the United States of ditching a bill which grants the administration overarching powers in favour of one which takes more account of the individual’s rights to privacy.

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