The capture of ‘bulk’ internet data by the state to fight crime and terrorism has been one of the key human rights debates of recent years. Should the security services be able to analyse the social media and World Wide Web usage of millions of people, even if the data is mostly anonymised? How far does our right to privacy go?
After a Parliamentary review and a number of court judgments (with more to come), the latest intervention in the debate has come from the Independent Reviewer of Terrorism, David Anderson QC, who has published a new report on bulk powers.
Anderson’s report reviews the safeguards which the government has proposed to put in place through the Investigatory Powers Bill, which is currently winding its way through Parliament. He concludes that bulk collection of personal data by UK security agencies plays an important role in combating terrorism and serious crime.
Which bulk powers are reviewed by the report
- Bulk interception: this allows the security services to intercept, collect and filter overseas-related communications and to select material for examination.
- Bulk acquisition: this enables the Government to require telecoms companies to retain and disclose UK or foreign-focused communications data (not including the content of communications).
- Bulk equipment interference: this power covers a range of techniques, from hacking to copying data directly, involving interference with computers to obtain intelligence. It enables security services to obtain information that has been encrypted (that is, locked in some way, such as by a password).
- Bulk personal datasets: this allows security agencies to keep and use datasets relating to a number of individuals, the majority of whom are unlikely to be of intelligence interest. Examples of such datasets are the passport register, the electoral register, the telephone directory, and databases of financial and commercial activity.
Serious implications for privacy rights
The right to respect for privacy and communications are protected by UK, EU and international human rights laws. Data protection is also enshrined in human rights law at UK and EU levels. The report says that such human rights frameworks are the “essential starting point for any law on investigatory powers”.
The report points out the serious implications of these powers: potential abuse, or perception of abuse, of such broad powers could intrude into people’s right to privacy in ways which have deeply damaging effects on both individuals and society as a whole. On the other hand, it states that “international human rights instruments are pragmatic enough to recognise that intrusions into individual privacy will often be justified in the public interest”. For example, proportionate interferences with privacy in the interests of national security, safety, and the prevention of disorder or crime, can be justified.
Human rights laws create a framework of accountability. Within that framework, competing rights and interests must be balanced; safeguards and limitations must be developed and implemented rigorously and dynamically.
The scope of the report does not extend to a consideration of whether or not the bulk powers are compatible with human rights law. Parliament will consider this as the Bill progresses.
Anderson concludes that there is a “proven operational case” for three of the bulk powers and that there is a “distinct (though not yet proven) operational case” for bulk equipment interference.
It recommends that an independent technical advisory panel be appointed to advise on the impact of the “breathtaking” speed of technological change in this field, and on how privacy can be continually protected in that context.
Although he does not comment on whether the powers are compatible with human rights, Anderson’s conclusions will add ballast to the government’s argument that any interference with privacy rights is justified by their importance to fighting crime.
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- Read about the background to the Investigatory Powers Bill with our previous RightsInfo coverage here and here.
- For our Explainer on mass surveillance, click here, and for an opinion piece on mass surveillance cases before the European Court of Human Rights, click here.
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