A review of the bulk powers in the Snoopers' Charter is welcome - but the Government must get it right

Posted by Silkie Carlo on 27 May 2016

After consistent lobbying by the Labour party and Liberty, Home Secretary Theresa May has finally announced that there will be a review of bulk powers.
The Government’s outgoing Reviewer of Terror Legislation, David Anderson QC, is to conduct a review of practices first revealed by whistle-blower Edward Snowden that Government is now seeking to retrospectively legitimise via powers contained the Snoopers’ Charter. 

The news has been given a cautious welcome at Liberty HQ. 

Given the Government’s strong distaste for transparency, Labour should be commended for convincing it to concede. Not only is the exercise of these mind-bogglingly intrusive powers a grave human rights abuse and profoundly undemocratic – it makes us no safer. 

In fact, evidence from several reviews in other countries, the Snowden documents and high-profile whistleblowers show these powers overwhelm the Agencies, swamping them in worthless data and actually making us less safe.

But a review in itself is not enough. Any review must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or secure the public’s confidence in its conclusions. The announced review already falls short in a number of respects.

Here are Liberty’s expectations for a proper, effective review:

1.    The review must answer a two-part question:
(a)    whether information gathered through the use of bulk powers was the critical factor in preventing or detecting a specific serious crime; and
(b)    whether that information could have been obtained via other, targeted, investigative and police powers.

Only answering ‘yes’ for (a) and ‘no’ for (b) can show the practical necessity of these mass-snooping powers to detecting and preventing serious crime.

In answering (a), the Agencies should be required to point to a successful conviction – while (b) can only be suitably answered by considering every other non-bulk or targeted power available to the Agencies and police.

2.    The review must be completely independent, and reviewers should harbour no pre-existing bias on the necessity of bulk powers. In answering the principle question above, the review will need to request all available evidence and examine it from both a technical and legal perspective. 

Although David Anderson’s review A Question of Trust was not tasked with investigating the effectiveness and necessity of bulk powers per se, it was deeply concerning to see him accept several vague and contradictory case studies proffered by the Agencies which claimed to support the absolute necessity of the proposed powers. 

It would be woefully inadequate for this review to accept case studies at face value. The technical necessity of bulk powers must be interrogated alongside an inspection of more proportional alternatives.

3.    A thorough review cannot focus only on the claimed successes of bulk power use, but must inspect evidence of their failures – such as producing intelligence of little value, or inadequate processing of the algorithms used to acquire information.

4.    A rigorous inquiry needs to pick apart the breadth of what “bulk interception” currently entails, and which, if any, of those aspects are strictly “necessary”.

5.    The review must verify the necessity of all bulk powers contained in the Bill – bulk hacking, bulk personal datasets, bulk interception and bulk acquisition of communications data. This will clearly not be possible in the suggested time frame.

6.    The reviewers should also have diverse expertise in the relevant fields. The review can only be credible if they are capable of challenging and examining highly complex, technical evidence.

7.    Any review will be insufficient unless those conducting it are able to access all the relevant classified information or systems in order to independently investigate and inform their findings.

8.    The reviewers must be given adequate time to complete their report – and should explicitly note its limitations if they are not. 

9.    The reviewers would do well to draw on the methodology of the Privacy and Civil Liberties Oversight Board’s report on the Telephone Records Program Conducted under Section 215 of the USA Patriot Act in the United States.

The Board examined classified evidence and were given demonstrations of the programs and capabilities in operation, while also engaging with public forums and expert panels on technological, policy and legal issues.

Liberty has sent these recommendations to David Anderson and we sincerely hope he takes this opportunity to properly challenge the evidence and produce a thorough, comprehensive and unbiased examination of the necessity of all bulk powers in the Investigatory Powers Bill. The stakes are extremely high.

Silkie Carlo

Silkie Carlo

Senior Advocacy Officer