Challenges To The UK's Surveillance And Data Retention Powers Continue To Mount

from the unacceptable-in-a-democracy dept

As Mike wrote recently, to no one's surprise, the UK's meek Investigatory Powers Tribunal decided that GCHQ's surveillance did not violate anyone's human rights, despite its scope and scale. All is not lost, however, since that case is now likely to move to the European Court of Human Rights. Moreover, it's just one of a growing number of a challenges to the UK's spying activities.

A key element of the argument that GCHQ's activities are legal is the use of powers granted under the UK's Regulation of Investigatory Powers Act (RIPA). This, too, is being scrutinized by a variety of official groups, including the Intelligence and Security Committee of the UK Parliament, the Independent Reviewer of UK Terrorism Legislation, and a further standalone surveillance review. In addition, the important Home Affairs Committee of the UK Parliament has been looking at one particular aspect of RIPA, its use against journalists:

This inquiry addresses police forces' use of RIPA powers to acquire communications data in the course of investigations. In two recent, high-profile cases, police have used RIPA powers to obtain material which might be regarded as journalistic material for the purposes of [the Police and Criminal Evidence Act 1984].

That has naturally sent shockwaves through the UK journalistic establishment, which sees its privileged communications with sources under threat. The Home Affairs Committee's report is short, and offers an interesting summary of how RIPA is being used, including the following statistic:

In 2013, there were 514,608 notices and authorisations for communications data, down from 570,135 in 2012. Of these, 87.7 % were submitted by law enforcement agencies and 11.1 % by the intelligence agencies.

Its conclusion is equally short, but unequivocal in its scathing rebuke to UK police forces for the way they are currently using RIPA in their investigations:

RIPA is not fit for purpose, with law enforcement agencies failing to routinely record the professions of individuals who have had their communications data accessed under the RIPA. The recording of information under RIPA is totally insufficient, and the whole process appears secretive and disorganised with information being destroyed afterwards. Whereas we acknowledge the operational need for secrecy both during investigations and afterwards (so that investigative techniques more broadly are not disclosed), we are concerned that the level of secrecy surrounding the use of RIPA allows investigating authorities to engage in acts which would be unacceptable in a democracy, with inadequate oversight. We recommend that the Home Office use the current review of the RIPA Code to ensure that law enforcement agencies use their RIPA powers properly.

Alongside RIPA, there is also the more recent DRIPA, the Data Retention and Investigatory Powers Act, which was pushed through the UK Parliament in record time this summer in response to the EU's Data Retention Directive being ruled invalid. Two MPs -- the Tory David Davis, and Tom Watson from Labour -- immediately announced that they would seek a judicial review of DRIPA, and this week a High Court judge has given permission for the review to go ahead. The UK government may show no sign of reining in its snooping voluntarily, but challenges to the UK's spying apparatus continue to multiply, which offers the hope that at some point it will be forced to do so.

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Filed Under: data retention, legal challenges, privacy, surveillance, uk