‘Trust us’ isn’t enough: Liberty condemns evidence-light report rubberstamping Government mass surveillance powers

19 August 2016

Liberty has criticised today’s report from the Government’s outgoing Reviewer of Terror Legislation, which falls far short of the impartial, probing and well-evidenced investigation into the necessity of ‘bulk’ powers so urgently required.

In May, then Home Secretary Theresa May – under pressure from Liberty and cross-party MPs – announced a review into whether the unprecedented and disturbingly intrusive bulk surveillance powers in her flagship Investigatory Powers Bill are justified.

Liberty cautiously welcomed the move, and set out the basic framework and requirements needed to make that review effective and gain the confidence of both public and politicians.

The review failed to meet these requirements and today’s report fails to add any further substance to Government’s flimsy and – in some cases – hypothetical claims.

Bella Sankey, Policy Director for Liberty, said:

“Liberty called for an impartial, independent and expert inquiry into these intrusive powers – yet sadly this rushed review failed on all three counts.

“The review panel consisted of former Agency staff effectively asked to mark their own homework and a Reviewer who has previously advocated in favour of bulk powers. The report provides no further information to justify the agencies’ vague and hypothetical claims and instead invites the public to ‘trust us’. Post Chilcot, this won’t wash – hard evidence is required instead.

“This was an opportunity to properly consider the range of targeted methods that could be used as effective alternatives to indiscriminate and potentially unlawful powers. That chance has been wasted.”

Fatally flawed

Report of the Bulk Powers Review concludes that an operational case has been made for three bulk powers in the Government’s Investigatory Powers Bill – bulk interception of communications, bulk acquisition of communications data and the acquisition of massive databases containing sensitive private information on the UK population.

This conclusion is flawed. Human rights laws require that secret surveillance measures can only be justified where they can be shown to be “strictly necessary for the obtaining of vital intelligence in an individual operation”.

Today’s report fundamentally fails to demonstrate that this is the case:

  • It fails to answer the central question – whether information gathered via bulk powers was the critical factor in preventing or detecting serious crime, and whether that information could have been obtained from smart, targeted surveillance instead.
  • It focuses only on claimed successes of bulk power use, based on anecdotal assertions from the intelligence agencies. It fails to inspect evidence of their failures, or to provide clear, evidence-based methodology to explain its conclusions.

 

Doomed to fail

Liberty believes the Government had set Mr Anderson and his team an impossible task, undermining the credibility of his review and report from the outset:

  • David Anderson QC had already expressed a clear-cut view on one of the review’s core questions. In his 2014 report A Question of Trust, after analysing case studies provided by GCHQ, he concluded: “They leave me in not the slightest doubt that bulk interception, as it is currently practised, has a valuable role to play in protecting national security”. In today’s report the Reviewer stresses that he was “not too proud to change my mind” about the bulk interception power, arguing that his previous conclusion was reached “without the expert assistance that has been made available to this Review.” However this report similarly fails to provide evidence for the conclusions reached..
     
  • The reviewing panel was not institutionally independent of the security and law enforcement agencies. Mr Anderson’s three advisers included Robert Nowill, GCHQ’s former Director of Technology and Engineering, and Gordon Meldrum, former Director of Intelligence for the National Crime Agency.
     
  • Reviewers were given less than three months to complete their report – a clearly insufficient timeframe in which to properly challenge and examine highly complex technical evidence.

 

In 2013, the US Government commissioned an independent expert panel to consider the necessity of just one bulk power – the US domestic bulk phone records programme. It took six months to report, and concluded that the programmed did not contribute to a single counter-terrorism investigation in any way that targeted methods could not have done.

Targeted, not total surveillance

Liberty has long been concerned at the lack of any independent evidence that mass surveillance keeps the public safe, and is campaigning for a genuinely effective, targeted system of surveillance that protects the human rights to security and respect for private life.

As detailed in its submission to Mr Anderson’s Review, Liberty believes that the security and law enforcement agencies aims are, or could be, met by targeted methods – collecting and storing data on known suspects and their social networks, visitors to websites hosting illegal content, and conflict zones.

By defining zones of suspicion and gathering intelligence from within them, agencies can create rich, relevant, manageable data that leads to the rapid discovery of targets and threats.

ENDS

Contact Liberty press office on 020 7378 3656 / 07973 831 128 or pressoffice@liberty-human-rights.org.uk.