Open letter on rule of law and surveillance

I am one of the signatories on an open letter to the members of the House of Commons – a letter set out below. The subject matter is UK surveillance law – and in particular the democratic process surrounding surveillance law. The signatories – academic researchers whose specialities are related to surveillance law, whether from the legal, technical or technological, socio-political or media-studies angle – are concerned that the democratic process is not effectively bypassed or short-cut as it has been in the last few years. We come from a wide variety of backgrounds and have very different perspectives on privacy, surveillance, security and so forth – but we share, I believe, the belief that proper scrutiny, proper debate, and proper legal processes should be followed.

Similarly, political backgrounds shouldn’t matter – this isn’t in any way a party political issue, but one that should transcend party politics. Politicians of all parties should care about the political process, and should want important political decisions to be made with the best information, and after proper consideration and debate. That has been conspicuous by its absence in recent years.

There is a lot at stake here, and parliamentarians, like most people, do not have the technical or even legal knowledge to be able to make good judgments over this kind of thing without taking an appropriate amount of time, talking with the appropriate experts, and doing their best to understand the issues. That, in theory at least, is what the full parliamentary process should allow for. Laws should not, except where absolutely necessary, be pushed through without proper debate. Significant changes should not be made through processes that were designed for small, procedural and detailed changes. New ideas should not be introduced at late stages of a bill without the chance for proper debate. All of these have happened in the last few years – we should do our best to stop that happening in the future. A new parliament, with new parliamentarians, should provide an opportunity for that.

Here is the letter.


 

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterise the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 38 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.

Signatories

 

Andrew Murray (contact signatory) – Professor of Law, London School of Economics  a.murray@lse.ac.uk

Paul Bernal (contact signatory) – Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia Paul.Bernal@uea.ac.uk

Anne Barron – Associate Professor of Law, London School of Economics

Subhajit Basu – Associate Professor of Law, University of Leeds

Sally Broughton Micova – Deputy Director LSE Media Policy Project, Department of Media and Communications, London School of Economics

Abbe E.L. Brown – Senior Lecturer, School of Law, University of Aberdeen

Ian Brown – Professor of Information Security and Privacy, Oxford Internet Institute

Ray Corrigan – Senior Lecturer in Maths, Computing and Technology, Open University

Angela Daly – Postdoctoral Research Fellow, Swinburne Institute for Social Research, Swinburne University of Technology

Richard Danbury – Postdoctoral Research Fellow, Faculty of Law, University of Cambridge

Catherine Easton – Lecturer in Law, Lancaster University School of Law

Lilian Edwards – Professor of E-Governance, Strathclyde University

Andres Guadamuz – Senior Lecturer in Intellectual Property Law, University of Sussex

Edina Harbinja – Lecturer in Law, University of Hertfordshire

Julia Hörnle – Professor in Internet Law, Queen Mary University of London

Argyro P Karanasiou – Senior Lecturer in Law, Centre for Intellectual Property, Policy & Management (CIPPM), Bournemouth University

Theodore Konstadinides – Senior Lecturer in Law, University of Surrey

Douwe Korff – Emeritus Professor of International Law, London Metropolitan University, Associate of the Oxford Martin School, University of Oxford

Mark Leiser – Postgraduate Researcher, Strathclyde University

Orla Lynskey – Assistant Professor of Law, London School of Economics

David Mead – Professor of UK Human Rights Law, UEA Law School, University of East Anglia

Robin Mansell – Professor, Department of Media and Communication, London School of Economics

Chris Marsden – Professor of Law, University of Sussex

Steve Peers – Professor of Law, University of Essex

Gavin Phillipson – Professor, Law School, University of Durham

Julia Powles – Researcher, Faculty of Law, University of Cambridge

Andrew Puddephatt – Executive Director, Global Partners Digital

Judith Rauhofer – Lecturer in IT Law, University of Edinburgh

Chris Reed – Professor of Electronic Commerce Law, Queen Mary University of London

Felipe Romero-Moreno – Lecturer in Law, University of Hertfordshire

Burkhard Schafer – Professor of Computational Legal Theory, University of Edinburgh

Joseph Savirimuthu – Senior Lecturer in Law, University of Liverpool

Andrew Scott – Associate Professor of Law, London School of Economics

Peter Sommer – Visiting Professor, Cyber Security Centre, De Montfort University

Gavin Sutter – Senior Lecturer in Media Law, Queen Mary University of London

Judith Townend – Director of the Centre for Law and Information Policy, Institute of Advanced Legal Studies, University of London

Asma Vranaki – Post-Doctoral Researcher in Cloud Computing, Queen Mary University of London

Lorna Woods – Professor of Law, University of Essex

 


 

[1] https://paulbernal.wordpress.com/2014/07/15/open-letter-from-uk-legal-academic-experts-re-drip/

[2] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/401863/Draft_Equipment_Interference_Code_of_Practice.pdf

[3] http://www.legislation.gov.uk/ukpga/2015/9/notes/division/3/2/2/4

[4] https://www.privacyinternational.org/?q=node/584


 

4 thoughts on “Open letter on rule of law and surveillance

  1. I was sorry not to see more (or any) discussion of the ‘rule of law’ and what it means, and requires, in this context; the phrase appears in the heading and the conclusion, and nowhere else.

    On a sceptical note, I’m coming to the conclusion that being rushed through without consultation is what counter-terrorism legislation is for – we (or rather they) can’t afford to spend time discussing it (or letting us discuss it), because the threat is so urgent; and we know the threat is urgent, because terrorism! (Or, increasingly these days, because extremism! “The purpose of private-space intervention is to engage, explore, explain, educate or eradicate. Hate and extremism is not acceptable in our society, and if people cannot be educated, then hate and harmful extremism must be eradicated through all lawful means.” A Muslim said that, so it must be OK.)

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