Andy Burnham’s demands – can they be met?

Strong opposition is vital to ensure surveillance is conducted lawfully and proportionally. It is essential that this pressure continues from Labour to secure further concessions and ensure those it has already won are fully realised. Burnham has to be careful not be handed superficial changes by the Home Office, who are used to fobbing off politicians, including their own ministers. Let’s look at some of the problems he faces, to secure concessions he has set out in his letter:

(1) Review of bulk powers

Burnham has done well to secure a review of bulk powers by David Anderson. However, this late in the day, it will only look at a fraction of GCHQ’s billion-pound operation. Furthermore, it needs to look at the programmes themselves, to assess whether they work and provide value for money against the intrusion they cause. By assessing the programmes, a more sensible answer about the powers can be given, such as how to restrain and review capabilities. The review also needs to propose how to carry out ongoing review, as it will barely get started in three months. ORG has given them a slight head start in summarising the Snowden evidence relating to the UK in our report.

It is a shame that the review will inevitably report after the Commons has finished scrutinising the bill, but blame for that must go to the Government.

(2) Protections for Trades Unionists

This is all about processes, rather than simple statements at the top of the Bill. It shares the same problems as other carve outs for particular professions – essentially, GCHQ mass surveillance (“bulk datasets”) can’t tell the difference between people, and the police decide when they think they need to consult a magistrate prior to a data request to a telephone company. We discuss this more fully below.

(3) Over-arching Privacy clause

Any meaningful clause needs to set specific restraints that apply across the board, for instance by requiring that any intrusive act must be subject to an independent system of authorisation. This could serve to limit legal workarounds that tend to prove popular with agencies once they find them. On the other hand, statements of principle reminding us that surveillance must be ‘necessary and proportionate’ will sound great but won’t offer anything genuinely new or protective.

(4) Internet Connection Records

It is useful to suggest that ICRs – information about your web browsing history – should only be used for the most serious of crimes. This reminds us that ICRs are very intrusive. However, we still have no real idea why they are needed or even how to properly define them. It is highly likely that collection of ICRs will be open to legal challenge as a measure that fails to target actual suspects, but instead intrudes on everyone’s privacy.

The issue of the query engine – the “filter” is yet to be properly assessed by Parliament. It seems to provide very dramatic powers of searching and profiling, which mean everyone’s data being trawled through to produce results. It would be good to see Labour ask more questions about this.

(5) Judicial authorisation of warrants

The most serious kinds of warrants, for wire taps and bulk data gathering, are signed by ministers, or in the future, to be examined by Judicial Commissioners. Mr Burnham is on the right lines by insisting that this process can be guaranteed to allow judges to make a full assessment, rather than just marking the ministers’ homework.

Labour should also remember that the 4-500,000 data requests made by police annually are still not subject to an external process. Oversight Commissioners instead check off a portion to see if they are being assessed correctly. This is how journalists have continued to find themselves subject to police investigation, despite requirements for the police to approach the courts where they are involved.

(6) Protection for sensitive professions

It is correct to ask for this, but there are two massive holes. Firstly, all the bulk programmes suck up all the data they can find. GCHQ programmes assess the data, and finally data is presented to operatives. It is only at this final step that any hope can be given of protecting MPs, trades unionists, journalists, doctors or lawyers communicating with their sources or clients. By which time, GCHQ might well be in a much better place to assess that some risk may exist – because their surveillance apparatus will have automatically decided which person has made travel routes, phone calls or website visits that make them look suspicious. This does not feel like a meaningful protection: only by returning to a system based on prior suspicision leading to targeted surveillance can we hope to protect professional privilege.

The second massive hole is that the police make their own requests for data from ISPs and telephone companies. This places the judgement about who is a journalist or professional in their hands. There will be a lot of grey in this for the police to ignore. Who, after all, is a journalists in the age of blogging and self-publishing? Who is a trades unionist—would this just apply to people acting in an official capacity, or the millions of members (unlikely)?

It is very clear that the Bill is still a long way from being acceptable. Andy Burnham has highlighted some key issues. He needs to be very careful about the responses he receives.