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Volume 47 Number 1, January 21, 2017 ARCHIVE HOME JBCENTRE SUBSCRIBE

Fighting For the Rights Of All

The Investigatory Powers Act and the Rule of Law

The Investigatory Powers Act, nicknamed the Snoopers' Charter, officially came into effect on December 30 after receiving Royal Assent a month earlier, on November 29. In fact, some provisions of the Act were already in place before parliamentary scrutiny had even started last March, including the handling of bulk personal datasets. On the other hand, some of its parts require extensive work to be done before becoming operational, such as the collection and storage of Internet Connection Records.

The Act contains a whole host of provisions for "the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information" and the treatment of material held as a result. The phrase "equipment interference" is a euphemism for hacking, whereby police and security services access personal data from mobile phones, computers and other devices. Such hacking is made legal even where the person owning the device is not the suspect in an investigation.

In particular, the Act introduces Internet Connection Records (ICRs), which detail websites visited by an internet user. Communication services providers - internet companies - will be required to hold these records for users in Britain for a period of one year. Authorities will have the power to see these records without a warrant. The exercise of this power will be secret: it will be a criminal offence for an internet provider or employee of such a company to reveal that this data has been requested.

The Register argues that the Act enshrines into law what is called parallel construction: the creation of a separate basis of evidence as a cover for how an investigation was actually conducted; it therefore allows the state to lie about origins of evidence in court, effectively treating this evidence as infallible and preventing the defence from questioning it.

Those allowed access to internet data are not just police and security and intelligence services but also the Ministry of Defence, the Department of Health, the Home Office, HM Revenue and Customs, NHS trusts, the Competition and Markets Authority, the Department for Communities, the Department for the Economy, the Financial Conduct Authority, Fire and Rescue services, the Food Standards Agency, the Gambling Commission, and so on. In this way, police powers are handed by the Act to whole swathes of the state and its institutions at all levels.

The legislation has been widely condemned. A petition to parliament calling for its repeal has at the time of writing gathered over 200,000 signatures. Nevertheless, the Petitions Committee arbitrarily decided not to schedule a debate on the petition, regardless of it passing the required threshold, on the basis that it had been debated on many occasions in parliament before it became law.

Legal challenges to the Act, such as that being pursued by the Don't Spy on Us coalition, are already under way. Contradictions with other European powers are also evident, with the European Court of Justice on December 21 ruling against mass general surveillance.

"This Government is clear that, at a time of heightened security threat, it is essential our law enforcement, security and intelligence services have the powers they need to keep people safe," claimed Home Secretary Amber Rudd.

"The internet presents new opportunities for terrorists and we must ensure we have the capabilities to confront this challenge. But it is also right that these powers are subject to strict safeguards and rigorous oversight."

However, it is clear that the legislation has little to do with protection of the population from terrorism. Even the defunct notion of striking a balance between rights and security underlying Rudd's justification sounds out of place: the Act goes beyond even that. It is rather a consolidation and stepping-up of the arbitrary and exceptional powers of the state, instituting these powers and rewriting the law at will in a vein attempt to appear legitimate and "transparent".

It was revealed by Edward Snowden in 2013 that the security agencies in Britain and the US had been collaborating for many years to collect bulk personal data on a massive scale. Subsequently, the investigatory powers tribunal found that the police and security services had been obtaining such data secretly and illegally over a period of 17 years.

The Act takes these assumed police powers operating outside of the rule of law and enacts them in an attempt to confer a semblance of the rule of law to these police powers. In this way, it creates a new "rule of law" based on these police powers, in the process turning the rule of law into its opposite.

The legislation therefore lays out what these powers are and creates new "oversight" arrangements, such as a new Investigatory Powers Commission (IPC), which consists of a number of serving or former senior judges. This body combines and replaces powers of the Interception of Communications Commissioner, Intelligence Services Commissioner and Chief Surveillance Commissioner, cutting down and streamlining the previous arrangements.

The context is one in which the government no longer negotiates but simply resorts to imposition, such as in the junior doctors' dispute, and restricts opposition. At the same time, the opposition is ever deepening and broadening, challenging the legitimacy of the government. The need is for a new fundamental law based on the rights that all hold by virtue of being human. The resulting rule of law provides security for its citizens by defending the rights of all.


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