Britain’s Investigatory Power Bill is Extraordinary - for all the Wrong Reasons

The Guardian, 8 November 2015

This snooper’s charter makes George Orwall look unimaginative

The new surveillance bill renders the citizen transparent to the state, putting every one of us under suspicion. It would serve a tyranny well

When the Home Office and intelligence agencies began promoting the idea that the new investigatory powers bill was a “climbdown”, I grew suspicious. If the powerful are forced to compromise they don’t crow about it or send out press releases – or, in the case of intelligence agencies, make off-the-record briefings outlining how they failed to get what they wanted. That could mean only one thing: they had got what they wanted.

So why were they trying to fool the press and the public that they had lost? Simply because they had won.

I never thought I’d say it, but George Orwell lacked vision. The spies have gone further than he could have imagined, creating in secret and without democratic authorisation the ultimate panopticon. Now they hope the British public will make it legitimate.

This bill is characterised by a clear anti-democratic attitude. Those in power are deemed to be good, and are therefore given the benefit of the doubt. “Conduct is lawful for all purposes if …” and “A person (whether or not the person so authorised or required) is not to be subject to any civil liability in respect of conduct that …”: these are sections granting immunity to the spies and cops.

The spies’ surveillance activities are also exempt from legal due process. No questions can be asked that might indicate in any legal proceeding that surveillance or interception has occurred. This is to ensure the general public never learn how real people are affected by surveillance. The cost of this exemption is great. It means British prosecutors can’t prosecute terrorists on the best evidence available – the intercepts – which are a key part of any prosecution in serious crime cases worldwide.

Those without power – eg citizens (or the more accurately named subjects) – are potentially bad, and therefore must be watched and monitored closely and constantly. The safeguards mentioned in the bill are there to benefit the state not the citizen. The criminal sanctions aren’t so much to stop spies or police abusing their powers, but rather to silence critics or potential whistleblowers. That’s clear because there is no public interest exemption in the sweeping gagging orders littered throughout the bill. The safeguards for keeping secure the massive troves of personal data aren’t there so much to protect the public but to stop anyone finding out exactly how big or invasive these troves are or how they were acquired. Again, we know this because there is no public interest exemption.

Democracy is characterised by transparency downwards, tyranny by the opposite

While the concerns of the state dominate, those of the citizen are nowhere to be seen. There is almost no mention in the bill of the privacy and democratic costs of mass surveillance, nor of seriously holding the state to account for the use and abuse of its sweeping powers.

The adjectives used to describe the “stringent application process” (for warrants) or the “robust safeguards” and “world class scrutiny” are doing the heavy lifting of conveying the robustness of the regime. The reality is quite different.

Not everything needs a warrant. Our digital lives can be accessed after authorisation within the agency itself. No judicial approval necessary.

In addition, business owners would have to contend with the man from MI5 ordering that they create new databases or monitoring tools. If companies don’t keep these, they’ll have to create them and face a criminal offence if they fail to put in place security measures to “protect against unlawful disclosure”. Possibly the state may compensate them for all this, possibly not. It’s up to a minister.

Business owners will not be able to speak out about this to anyone, even their employees, or appeal to any court or legal authority. Their only recourse appears to be to appeal to the secretary of state: what sort of independent adjudication will they get from that office?

Companies can be legally compelled by the security services to hack their customers’ equipment. The immensely worrying power to acquire bulk personal datasets, means there’s nothing to stop the entire NHS being used in service of spying. After all, why not? I’m sure there are useful leads that could be mined from our health records. If avoiding risk at all costs is the goal then why allow any personal freedom or privacy at all? The reason we do is because the concentration of power in the state is the most dangerous threat of all.

There are two types of transparency: downwards – where the ruled can observe their rulers, as codified in Freedom of Information Acts – and upwards, where those at the bottom are made transparent to those at the top, such as by state surveillance. Democracy is characterised by transparency downwards, tyranny by the opposite. It is telling that at the same time this government is seeking to undermine the Freedom of Information Act, it has introduced an investigatory powers bill that puts us all under the spotlight of suspicion.