The delicate balance between law enforcement and the rights of the individual is under threat.
The new Regulation of Investigatory Powers Bill covers the monitoring and the interception of communications by police and security agencies. It defines for the first time covert surveillance, the rules that must be followed by the police when they bug and tap e-mails and mobile phones.
The bill replaces one which was drafted in 1985 when there were no pagers, no mobiles, no e-mail, no internet, no encryption. As Jack Straw, Home Secretary, said: “The change in the telecom landscape in less than a generation has been revolutionary. We have to ensure that the legislation keeps pace – permitting interception in closely-defined circumstances to protect national security and fight serious crime, whilst resolutely ensuring that citizens’ privacy is safeguarded.”
Don’t be misled into believing, however, that this interception has not been done before. According to Straw, it merely replaces old, non-statutory, less formal methods: “Covert surveillance is as old as policing itself; so too is the use of informants, agents, and undercover officers.”
Several techniques have been placed on a legal footing for the first time. If you don’t want to be spied on, you can encrypt your information so that it can only be accessed with a special software key. Soon this will be a routine tool of e-commerce, part of ordinary e-mail and browser software, but there is a growing concern that criminals, such as paedophiles, will be able to use encryption to hide their tracks. One of the contentious provisions in the bill makes it a criminal offence not to disclose a requested decryption key to the police. Critics say that this could lead to innocent people being sent to jail because they have lost their encryption codes.
For the first time the law allows other authorities, such as the Inland Revenue or DSS, to use surveillance techniques. At the moment, 2,000 or so warrants are issued each year, but police and security agencies will now be able to look at data – such as which website or chat-room you have visited – without a warrant.
The number of wiretaps is expected to soar, too, when replacement legislation comes into force. The Home Office has told UK ISPs that they should be able to intercept one telephone line for every 500 lines that they operate.
Home Office Minister Charles Clarke, speaking at the Scrambling for Safety 2000 Conference at the London School of Economics, spoke about the sea change in attitude: “The flip side of human rights, of course, is human responsibilities. Rights don’t exist in a vacuum. The person who argues for absolute privacy for his communications may be violating another person’s right to see justice done, if access to communications for the purpose of enforcing the law becomes impossible, and the small minority who misuse their right to privacy on the net are able to evade detection.
But there is some debate as to whether the law will comply with the new Human Rights Act, and Madeleine Colvin, legal policy director at the civil liberties group, Justice, hopes that the Home Office will open the subject to discussion.
Clarke insisted the bill could withstand legal challenges, but conceded there will probably be a number of issues fought out in the courts after the human rights act comes into force in October. He continued: “One of our central concerns was the promotion of e-commerce. This lies at the heart of our vision for building a modern, knowledge-driven economy in the UK. Ensuring the internet is a safe place to do business is key to this aim. Law enforcement’s ability to secure this will not be served if consumers are driven to use communications and encryption services in other countries. This is in no one’s interests. Hence the work to build a relationship with industry which emphasises collaboration. Hence also the efforts we have gone to throughout the Bill to guarantee protection for the rights of the individual, and a minimal impact on the communications industry.
According to the new law, intercept material has to be destroyed as soon as it is no longer necessary. It is not kept ‘because it might be useful,’ but must be destroyed unless not necessary. Any breach of an individual’s privacy should be in accordance with law; proportionate to the aim; properly supervised; and with controlled procedures for its use and retention.
All this comes on the heels of revelations about Echelon, the global satellite system which they say, hoovers up all our communications, including e-mails, for governments to study. It can eavesdrop on every single phone call, fax or e-mail, anywhere on the planet. Known as radomes, the 30 giant golf balls rise from the US military base on the North Yorkshire moors, but Britain and America still deny that the network exists. Its powerful computers recognise key works, in their search for evidence of international crime.
The person being monitored is always the last to know, as student Julie Ann Davies discovered when she was arrested over her links for former MI5 spy David Shayler. Apparently her e-mails had been intercepted for some time, without arousing suspicion.
An account of progress to date appears on the Home Office website, and another forum on encryption and law enforcement will take place in May.