It is natural that after the outrage in Paris, people want all possible steps to be taken to prevent a similar event occurring in the UK.
It is often said that the first duty of the State is to protect the lives of its citizens but this duty is not absolute. It is always balanced against other considerations. Many more people die in road accidents than in terrorist attacks. However, no government would ban cars or impose a 10 mile an hour speed limit; the costs to society would be too high.
In the wake of the Paris attacks, some are now calling for the Investigatory Powers Bill (IPB) also known as the Snoopers Charter, to be fast-tracked through parliament. It is at a time like this, when emotions are running high, that we need to be particularly careful.
We need to find the right balance between security and privacy. In other countries, such as the USA and Germany, there is a heated and passionate public debate. In the UK, sadly, there has been for the most part shoulder-shrugging apathy. I hope this can change.
There are real concerns that the IPB poses a significant danger to our freedom, privacy and way of life. Joseph Cannataci, the UN’ s special rapporteur on privacy has condemned the IPB as “heralding a golden age of surveillance” and “worse than scary”.
It is not hyperbole to say that the proposals in IPB would allow levels of surveillance far in excess to those available to the Stasi or even imagined by George Orwell.
IPB puts into law a range of activities, revealed by Edward Snowden, which the Security Services have been undertaking for years and which were either illegal or of dubious legality. It is an indictment of the bodies overseeing the Security Services, that either they did not know what was going on or they did know, but allowed it to continue.
No one in our society should be above the law. Some think that this does not apply to the Security Services. Such attitudes are dangerous and profoundly anti-democratic.
In 2015, technology gives the Security Services astonishing capabilities. Mass surveillance is easy. It is possible to track you through your phone, use your phone as a microphone to listen into your conversations, turn on the camera on your laptop, read your emails and know everything about your activity online. It is likely that even more pervasive forms of surveillance will be possible in 5, 10 and 20 years time.
Some people think the right to privacy is not particularly important. This is not the view of David Anderson QC, the widely respected Independent Reviewer of Terrorism Legislation whose recent report is essential reading for anyone wanting to understand the issues in this area. Privacy is essential to a free and healthy society. Anderson writes that we need privacy to develop as humans; to express individuality; to facilitate trust, friendship and intimacy; to secure other human rights; and to empower the individual against the State.
You may have “nothing to hide” but would you want the possibility of being spied on 24/7? What about in the bathroom or the bedroom? Just the mere thought that you might be spied on, can lead to self-censorship and a loss of what it means to live in a free society.
Snowden was right to say - “Arguing that you don't care about the right to privacy because you have nothing to hide, is no different than saying you don't care about free speech because you have nothing to say.”
There is a real possibility that IPB will not even make us all safer. In fact, it could make us less safe. IPB will gather huge amounts of data which can then be hacked into – as in the recent Talk Talk data breach. Furthermore, a less altruistic insider than Snowden would be better able to steal huge amounts of data once it had all been gathered.
IPB would also require companies to leave a “back door” into encrypted material to let spies have access. Tim Cook, CEO of Apple, has warned this could have “very dire consequences” as it would undermine the whole system of encryption, which is vital for much of the internet to function. Cook points out that, in any event, terrorists would be able to exploit the back doors.
IPB allows the authorities to instruct companies to hold for 12 months all the data they have for everyone. Such blanket retention of data is not allowed in any other EU or Commonwealth country or in the USA.
Police officers and other officials, who need only to be middle-ranking, would have the power under IPB to access metadata, which, for example, includes the time and the sender or recipient of emails and the addresses of websites visited. This metadata could be obtained without any warrant or judicial involvement at all.
Theresa May suggests that metadata is bland and uninformative - “the equivalent of a standard phone bill”. Snowden strongly disagrees. He says metadata can tell you a huge amount about a person - "Metadata is extraordinarily intrusive.”
Many people are not concerned about increased surveillance because they trust the authorities to use their powers for appropriate purposes. Anderson recognised that this question is central by entitling his recent report “A Question of Trust”.
It is always dangerous to entrust great power to anyone without a powerful system of oversight to ensure that the power is not abused. Power does corrupt. Furthermore, the powers in IPB would be available to all future governments. Some feel uncomfortable about the current government having them, others will feel the same way about a future Corbyn government. What about a Johnson or Farage government?
The authorities have certainly abused their powers historically. There are many examples. After the murder of Stephen Lawrence, the police spied upon his parents. Undercover officers notoriously abused their position when spying on environmentalists. MPs have been spied on including Caroline Lucas and Harriet Harman. A long list of groups which are non-violent, but which oppose the interests of the Establishment, have been spied on.
Snowden reported spies in the USA using people’s own cameras to watch them having sex.
Certain groups have particular concerns about IPB, such as those involved in legitimate democratic protest and those who have historically had the confidentiality of their communications protected, such as doctors, lawyers and MPs.
The most intrusive powers in IPB are limited to the Security Services and need both the authorisation of the Home Secretary and also the approval of a judge. Theresa May calls this a double-lock. However, the judges’ role is limited to “judicial review grounds”. This means the judge does not actually consider the substance of the request. The organisation Liberty describe the judge’s role under IPB as a mere rubber-stamping exercise.
Given the secret way the powers under IPB are exercised, the reality is that most people would have no way of proving that powers had been abused. A proper, rigorous form of oversight would protect whistle-blowers and punish those who abused their power. IPB does the opposite. It effectively criminalises whistleblowing and protects those carrying out the surveillance.
IPB needs to be looked at in the context of what else this government is seeking to make law. They want to scrap the Human Rights Act, the main legislative protection for our privacy rights.
And, in a brazen use of power, whilst they seek more powers to know the people’s secrets, the government wants to restrict the Freedom of Information Act, so that it is more difficult for the people to know the government’s secrets.
If we do not get the balance of this legislation right, Anderson warned “we risk sleep-walking into a world which - though possibly safer - would be indefinably but appreciably poorer.”
We badly need a proper public debate about the right balance between security and privacy. We should beware handing the terrorists a victory by allowing their actions to lead to us abandoning essential components of a free society.
