THE most interesting aspect of the government’s sleight of hand over the draft Investigatory Powers Bill unveiled last week is that, for a brief moment, everyone seemed willing to buy into the illusion.
When Theresa May presented the latest package of proposed anti-terrorism surveillance measures, her use of words like “transparency”, “oversight” and “double locks” seemed to hypnotise even the most cynical into nodding assent. Then the spell was broken and it became apparent the bill was less about providing greater safeguards against spying and more about legitimising dodgy practices which have been taking place without our knowledge.
For more than a decade, it emerged, successive governments have let the intelligence agencies harvest vast amounts of British citizens’ data – phone calls, text messages and emails – in a programme so secret only a handful of people in MI5 knew of it. Now, instead of being horrified about this breach of our privacy, we are supposed to feel reassured – not because the government is going to stop such practices, but because it is finally being “open” and placing bulk data collection on a legal footing.
We should feel particularly reassured because, from now on, whenever ministers decide the police or intelligence services should be allowed to hack our phones or laptops or check on our online activity, they will have to refer their decision to a “judicial commissioner” for approval. Yet scrutiny of the draft legislation reveals the judicial commissioner’s “authorisation” is likely to be little more than a rubber-stamping exercise, and can, in any case, be by-passed if the situation is deemed “urgent”.
Perhaps it would be reassuring if the government had drafted this bill out of a new-found desire for clarity, but, of course, its hands were forced by Edward Snowden’s revelations about the mass interception of internet messages already being carried out by GCHQ. Free at last of their civil liberties-fixated coalition partners – and despite protestations to the contrary – the government has tried to breathe new life into the so-called Snoopers’ Charter, which was defeated by the Lib Dems in 2013. (The Data Retention and Investigatory Powers Act, rushed through parliament in 2014 only for sections of it to be ruled incompatible with the British public’s right to respect for private life, is due to expire next year).
Before unveiling the draft bill, May had been preparing the ground in the hope of building a consensus. The legislation was necessary to fight terrorism, organised crime and child sex abuse, she said, but the most contentious proposals had been stripped out and the concerns of organisations such as Open Rights Group, Big Brother Watch and independent anti-terrorism legislation reviewer David Anderson QC taken on board. And, sure enough, there are concessions. The draft bill makes no attempt to prevent companies from encrypting messages (though it does say they can be ordered to decode and hand them over if required) and although internet providers will have to store our browsing history for a year, that won’t involve the individual pages viewed or messages sent, just which websites were visited and when.
For all that, the legislation still extends the power of the police and spies to access every part of our lives. Perhaps we no longer find this prospect frightening. Perhaps now supermarkets can track our every purchase we don’t really care what the government knows. “If you’ve nothing to hide then you’ve nothing to fear,” said Tory MP Richard Graham. But you can tell a lot about a person from their website searches: you might be able to ascertain their religious or political leanings or that they suffer from a mental health problem or that they are addicted to porn or are having an affair. The recent TalkTalk hacking shows how easily such information could be illicitly obtained and used against us.
Hidden away in the small print are other potentially problematic changes. Cyber experts suggest that the home secretary would be able to force companies to put in “back doors” – a means of access that bypasses security – to their software, and make revealing the existence of those back doors a criminal offence punishable by up to 12 months in prison. With terrorist attacks on the rise, it is relatively easy for the government to sell new powers as an acceptable trade-off for better security and to talk about the foiling of various plots without being too specific about exactly how said powers will further their investigations. They are exploiting deep-seated fears to create a culture of suspicion that not only pits the state against its citizens, but its citizens against one another. Thus, under its anti-radicalisation Prevent strategy, health workers are urged to report on suspicious activity by patients, and teachers and parents to watch out for signs of “un-British behaviour” amongst other parents and children.
Of course, we must be alert to signs of radicalisation. The advancement of technology has given new opportunities to terrorists who know how to make the most of them. But before we sleepwalk into a world where mass surveillance is the norm, we ought to ask ourselves: if these measures are so very necessary, why aren’t other European countries adopting them? We ought also to remember that the reason we fight extremism is to preserve our own freedoms. If we allow the state to monitor our every move and, worse still, to encourage us to monitor each other – we change the nature of our society, further alienate already vulnerable groups, and risk losing more than we gain. «