In June 2013, Edward Snowden – a former contractor at the US National Security Agency – blew the whistle on the huge scale of Government spying on every one of us.
He revealed that GCHQ, the UK’s eavesdropping agency, was intercepting and processing billions of communications every day and sharing the information with the US. This included recordings of our phone calls, the content of our private messages, entries on social media sites and our internet histories. This level of intrusion has no place in a democratic society, where we all have the right to protest, speak freely and to a fair trial – and our free press holds the Government to account. If those in power can watch our every move, those rights are seriously undermined.
Snowden had hoped that by exposing this unlawful and undemocratic mass surveillance, the resulting public outcry would stop it.
But the UK Government responded not just by legalising those extremely intrusive, eye-wateringly authoritarian powers – but by expanding them.
However, the British Government’s spying legislation is unlawful, the Court of Appeal has ruled. Judges say that the Snooper’s charter lacks adequate safeguards around accessing personal data. The decision follows similar findings from the European Court of Justice and the High Court in London.
Liberty, the human rights campaign group which represented Watson in the case, said the ruling meant significant parts of the Investigatory Powers Act 2016 – known as the snooper’s charter – are effectively unlawful and must be urgently changed. The legal challenge was also crowdfunded by almost 2,000 people.
The court of appeal ruling on Tuesday 30 January said that the powers in the Data Retention and Investigatory Powers Act 2014, (DRIPA) which paved the way for the snooper’s charter legislation, did not restrict the accessing of confidential personal phone and web browsing records to investigations of serious crime, and allowed police and other public bodies to authorise their own access without adequate oversight.
The court said DRIPA was “inconsistent with EU law” because of this lack of safeguards, including the absence of “prior review by a court or independent administrative authority”.
Responding to the ruling, Watson said: “This legislation was flawed from the start. It was rushed through parliament just before recess without proper parliamentary scrutiny.
“The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data. I’m proud to have played my part in safeguarding citizens’ fundamental rights.”
Martha Spurrier, the director of Liberty, said: “Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful. This judgement tells ministers in crystal clear terms that they are breaching the public’s human rights.”
She said that no politician was above the law. “When will the government stop bartering with judges and start drawing up a surveillance law that upholds our democratic freedoms?”
When the law expired at the end of 2016 it was replaced with The Investigatory Powers Act 2016 (IPA), which continued to give the Government most of the same surveillance powers it had under DRIPA.
While a separate legal challenge to the IPA will be heard at the end of February – it has been referred to the European court of justice – the recent judgement has already established that many of its provisions are unlawful and must be changed.
DRIPA allowed the government to force Internet Service Providers to collect and retain people’s phone records and log their internet activity.
It also permitted a wide range of public bodies to grant themselves access to this information without proper independent oversight, and in many cases where there was no suspicion that a serious crime had occurred. Local Councils have been caught using data retention legislation – introduced to fight terrorism – to crack down on issues such as dog fouling and littering.
Then there have been the cases of companies, including insurance and financial firms, that have illicitly acquired confidential personal details of victims. An insurance firm and two senior figures were handed record data breach fines for illegally obtaining private banking records in January this year. The two private dectectives hired to break the law were also fined heavily. Illegal trading in personal information for profit has become a growing problem.
It’s therefore very good news that, as all access requests are not subject to a prior review by an independent body or court, the legislation is in breach of human rights law, the Court of Appeal has ruled.
The High Court ruled against the government in 2015, finding that DRIPA was incompatible with Articles 7 and 8 of the Human Rights Convention because the data collection was indiscriminate rather than targeted, and it was too easy for organisations to gain access to it without proper scrutiny. Article 7 says that there can be no punishment without law, and 8 provides a right to respect for one’s private and family life, home and correspondence.
The government then appealed this decision and the Court of Appeal referred the case to the European Court of Justice for clarification. In its ruling, it agreed with the High Court ruling in London, and ordered the government to introduce greater safeguards to protect citizens’ privacy. The matter then went back to the Court of Appeal in the UK which made its ruling on January 30.
Watson launched his legal challenge in 2014 in partnership with David Davis, who withdrew from the challenge when he entered the government as Brexit secretary in 2016.
The European court of justice ruled in December 2016 that the “general and indiscriminate retention” of confidential personal communications data was unlawful without safeguards, including independent judicial authorisation.
The recent decision by the Court of Appeal means that the government will almost certainly have to amend the Investigatory Power Act to protect our human rights.
However, security minister Ben Wallace responded to the ruling with this:
“Communications data is used in the vast majority of serious and organised crime prosecutions and has been used in every major security service counter-terrorism investigation over the last decade. It is often the only way to identify paedophiles involved in online child abuse as it can be used to find where and when these horrendous crimes have taken place.”
He went on to say that the judgment related to legislation which was no longer in force and did not change the way in which law enforcement agencies could detect and disrupt crimes.
He added: “We had already announced that we would be amending the Investigatory Powers Act to address the two areas in which the court of appeal has found against the previous data retention regime. We welcome the fact that the court of appeal ruling does not undermine the regime and we will continue to defend these vital powers, which Parliament agreed were necessary in 2016, in ongoing litigation.”
Online data has already been subjected to manipulation and political abuse, and the age of big data is still in its infancy. When a Government can combine a high level of monitoring with nudging techniques and technologies – tools designed to subtly to change people’s cognitions, responses, opinions and behaviours – they have the tools to develop a system that will tend towards a totalitarian-level of control.
In combination with advances in cognitive science, psychological profiling, cognitive linguistics and neuroscience, this data could very easily become a powerful tool for changing the electoral decisions we make. We’ve already seen that money exercises illegitimate power over political systems, making a mockery of democracy – how campaign finance gives billionaires and corporations a huge political advantage over ordinary citizens; the dark money network (a web of lobby groups, funded by billionaires, that disguise themselves as thinktanks); astroturf campaigning (employing people to masquerade as grassroots movements); and ‘botswarming’, a technological variant of bandwaggon propaganda, using fake online accounts to give the impression that large numbers of people support a political position.
All of this currently threatens our democracy and political freedom. Yet the Electoral Commission in the UK have failed to control these abuses, or even, in most cases, to actually acknowledge them.
We have recently seen integrated voter management platforms, the shift from mass-messaging to personalised micro-targeting, based on psychological profiling and the employment of personal data from commercial data brokerage firms, the analysis of social media, and increasingly intrusive ways to influence political behaviour. (See More allegations of Tory election fraud, now we need to talk about democracy.)
The right to privacy and democratic autonomy are intimately connected.
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