Recent alarming revelations have raised some incredibly important questions about the use of surveillance techniques and Big Brother Watch, alongside seven other foremost campaign croups, have called on MPs to begin an enquiry into exactly how ministers and the security agencies have been interpreting the Regulation of Investigatory Powers Act (RIPA), as reported in today’s Guardian.
After CIA officer Edward Snowdon revealed documents which showed that GCHQ has used advanced technology to access hundreds of millions of private telecommunications messages, including phone calls, emails and records of internet usage, questions have been rightly asked about the extent of GCHQ’s operations and their legality. The key programme goes by the name of Operation Tempora and it is argued that the gathering of the messages is completely legal because the traffic has left the UK and therefore becomes “external”. In our letter to the Home Affairs Select Committee, we argue that the advanced pace of technology has exposed the inadequate oversight of the surveillance agencies, while legal definitions written for landline telephones are now being used on fibre-optic internet connections.
As reported in today’s Independent, this has also led to major questions being asked about the Interception of Communications Commissioner Office (ICCO) who has been forced to update his 2012 report which will now make a passing reference to GCHQ’s latest interception technology. It is very unlikely that the updated report will include any information about why these details were left out in the first place. The ICCO has less than 10 full-time members of staff to carry out its statutory duty of reviewing the interception activity of the UK spy agencies, the Metropolitan Police, HM Revenue and Customs, the Foreign Office, the Home Office and Ministry of Defence, so it is little wonder that oversight has been lax.
It is, of course, not just spying on an international level that has raised concerns about the way that snooping powers are used in this country. The disturbing reports of the way the Metropolitan Police used RIPA powers during the investigation of Stephen Lawrence’s murder, raises serious questions remain around the operation of that legislation.
What is certainly true is that parliament could never have envisaged the kind of sweeping data collection that is now trivial to undertake. This has left our entire regulation system no longer fit for purpose and out-of-date because it is impossible for a small handful of people to have any meaningful insight into more than 10,000 staff across three major agencies, not to mention the police and other organisations. If trust from the public in our security and law enforcement agencies means anything, we urge Parliament to urgently reform interception oversight.
The full letter is reproduced below.
The Rt. Hon Keith Vaz MP
Further to our previous letter regarding the formulation of policy within the Home Office and the role of the Office of Security and Counter Terrorism, we would like to raise our concerns about the operation of the Regulation of Investigatory Powers Act 2000 (RIPA) and the safeguards in place to ensure it is used proportionately.
Recent revelations about the activities of GCHQ and its counterpart the NSA have raised a number of serious concerns about the lawfulness of acquisition of data from the UK’s communications infrastructure. Of particular concern are provisions of RIPA dealing with ‘external’ communications. It appears that these powers are being interpreted far more broadly than was ever intended by parliament. Equally, data sharing arrangements between GCHQ, the NSA and other agencies raise- questions about the extent to which oversight structures and legal safeguards are being effectively circumvented.
Taken alongside disturbing reports regarding the misuse by the Metropolitan Police of RIPA powers during the investigation of Stephen Lawrence’s murder, serious questions remain around the operation of that legislation.
The Communications Data Bill, recently examined by a Joint Committee of both houses, along with the Intelligence and Security Committee, was presented as a legislative route to ‘maintaining the capability’ of the agencies to access data from internet communications. Both committees were told there was a need to update legislation to provide lawful access to the details of internet communications; however media reports suggest there is no such capability gap for the agencies. This raises concerns that the proposed legislation was intended to provide a statutory basis for activity that is already underway without parliamentary approval or oversight.
Given current international concern about surveillance, questions about parliamentary oversight and approval of GCHQ’s operations and on-going concerns about RIPA’s fitness for purpose, we urge your committee to undertake wide-ranging, post-legislative scrutiny of RIPA and the wider landscape of surveillance law in Britain.
In its jurisprudence the European Court of Human Rights has stated on several occasions that surveillance measures even if based on national legislation may not be lawful if adequate safeguards against abuse are not put in place and if the individuals who have been subjected to such surveillance have no effective access to domestic remedies.
We would be delighted to meet with you to discuss this further.
Big Brother Watch
Open Rights Group
Index on Censorship