How should your MP vote at Second Reading of the Investigatory Powers Bill?

On Tuesday 15th March, MPs will debate the Investigatory Powers Bill at Second Reading. The bill would consolidate, for the first time, all of the UK intelligence agencies’ surveillance powers under one law and ministers are pushing to pass it by the end of this year.

A draft bill was published in November last year but was widely criticised, including by three parliamentary committees. The main criticism was that it lacked clarity and precision, which meant it was susceptible to wide interpretation by law enforcement and security services.

What can agencies do at the moment?

They can listen to phone calls, intercept emails and even hack devices - providing they can show they have a justifiable case for doing so. Broadly, the aim is to uncover and stop crimes or threats to national security.

So what more do agencies want?

Currently, if a terrorist suspect sends a letter in the post, MI5 would need a warrant signed off by the home secretary to be able to intercept it and steam it open. The same applies if they want to virtually 'steam open' your email.

If the police are trying to trace someone's movements and contacts, they can access their phone records - the basic "communications data" showing who is in contact with whom.

However, they cannot do the same for online traffic as they cannot see what online services someone is using. Therefore, the Bill would enable security services and law enforcement to collect and access information about an individual’s online footprint. The Government states they need ‘to have these powers ‘to keep us safe against a backdrop of an increasingly complex, serious and unpredictable threat.’

So, what will the Bill do?

-Force your Internet Service Provider (ISP) to store browsing records for 12 months.

Service providers, such as BT or Sky, will be required to store ‘internet connection records’ (your internet browsing history) for everyone in the UK for a year so that police can access them. The Bill says they can be acquired for a "specific investigation" provided it is "necessary and proportionate".

-Police will have the power to hack into computers and smart phones

This is called "equipment interference" and is normally reserved for the security services, when there is a "threat to life" situation, such as locating a missing child. An urgent equipment interference warrant can be obtained where there is ‘imminent threat to life or serious harm’ (The urgent warrant has been added since the draft bill was published)

-Police access to other online activity when investigating a crime

Police will be able to access other online activity that they believe is related to an alleged crime. Currently, the police have powers to find out if a suspect is visiting illegal websites, downloading abuse images or accessing terrorist material, but they cannot see details of other online activity which might be relevant to their investigation. (This has been added since the draft bill was published)

-Legal obligation on companies to assist with officially sanctioned hacking operations

The legislation includes an existing power to compel a company in the UK to hand over an encryption key so that scrambled messages can be read. However, this legal duty cannot be imposed on overseas companies.

-Allow security services to access the content of your communications with approval from the Home Secretary

-Collection of large amounts of internet or phone data so that it can be later analysed for criminality.

The bill also aims to provide legal weight for the security services to collect large amounts of email and other data in the UK as well as personal details held on databases, potentially including bank or medical records.

-The Bill would allow for interception warrants for communications data to be issued in the interests of the "economic well-being of the UK so far as it is relevant to national security".

-Discussions with lawyers

Allow access to communications data between lawyers and clients but only where "there are exceptional and compelling circumstances which make the interception or selection for examination of these items necessary". (This has been added since the draft bill was published)

What protections are there?

-Equipment interference for the purposes of acquiring communications, equipment data or private information by security and intelligence agencies, armed forces or law enforcement agencies will require a warrant.

-A ‘double-lock’ authorisation procedure will be in place requiring warrants issued by a Secretary of State or a Chief Constable, to be approved by Judicial Commissioner before coming into force. However, police requests to access ‘internet connection records’ are not subject to the ‘double lock’ authorisation.

-Warrants will need to make clear the necessity and proportionality of the action being taken.

-The Investigatory Powers Commission will oversee the exercise of equipment interference, including inspection and audit of handling arrangements. 

-A statutory code of practice will set out the handling, destruction, retention arrangements and safeguards for material acquired.

-Any individual who thinks that surveillance powers have been used against them unlawfully can make a complaint to the Investigatory Powers Tribunal.

-Security services, as well as the police, will have to obtain a senior judge's permission before accessing communications data to identify a journalist's source

-A warrant will be required if the UK wants foreign agencies to intercept communications in the UK

-A time limit on the examination of personal information downloaded from databases

Draft Investigatory Powers Bill

A draft version of the bill was published in early November and was reviewed by three parliamentary committees, all of which criticized the government’s proposals and identified areas for further work. The Joint Committee on the Investigatory Powers Bill warned that the earlier version “lacks clarity,” is “inconsistent and confusing,” and adopts a “piecemeal approach” to privacy protections, while the Intelligence and Security Committee (ISC) said that the draft bill generally presents a “missed opportunity” to “provide the clarity and assurance which is badly needed.” (The Science and Technology Committee’s review is here.)

However, the Joint Committee said it was satisfied the value of Internet Connection Records to law enforcement agencies "could outweigh the intrusiveness involved in collecting and using them".

According to the Government, the revision of the draft bill includes stronger protections for journalists and lawyers, six codes of practice setting out how the powers will be used, and the use of a “double-lock” authorisation of the most intrusive surveillance methods by a minister backed by the approval of a judicial commissioner.

The Home Office claims that the revised bill “reflects the majority” of the reports’ recommendations, adding “we have strengthened safeguards, enhanced privacy protections and bolstered oversight arrangements.”

However, privacy and civil liberties organisations suggest otherwise. Many have cited the insertion of the word “privacy” to one section title to address calls by the Intelligence and Security Committee to have privacy protections form the ‘backbone’ of the Bill  

Committee rejections

The home secretary said two recommendations from the committees scrutinising the legislation had been rejected.

Firstly, the government will continue to use the protection of Britain's ‘economic well-being’, when linked to national security, as a justification for spying operations. There was strong criticism of this proposal, the joint committee on the draft bill said ‘economic well-being’ should be clearly defined.

In the government's response to the committee justifying its inclusion, it says warrants issued to preserve "economic well-being" might include the danger of "instability in parts of the world or unexpected crises which may undermine British markets and other economic interests or create difficulties in the continued supply of a commodity on which our economic security depended".

Secondly, the Bill will continue to allow UK spies to hack into foreign computer networks, under so-called "bulk equipment interference warrants," something Theresa May says is ‘a key operational requirement for GCHQ.’

What do people think?

In a written statement unveiling the bill, Mrs May said:

"The government is not seeking sweeping new powers. Rather the Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe against a backdrop of an increasingly complex, serious and unpredictable threat.

The Bill provides the public and Parliament with greater confidence that there are robust measures in place to ensure that the powers are subject to world-leading safeguards."

The Home Office says the new legislation also addresses concerns expressed by Apple and other tech giants about encryption, which protects messages from being hacked.

The tech giants feared being forced to fit "back doors" to their devices or make other changes to encryption that would compromise their customers' security.

Officials said the revised version of the Investigatory Powers Bill would ensure beyond doubt that companies can only be asked to remove encryption that they themselves have applied, and only where it is "practicable" for them to do so.

Paul Bernal, an IT law lecturer at the University of East Anglia, said at first glance it did not seem as if the industry's main concerns had been addressed.

"I suspect the tech companies will remain unconvinced, the encryption parts remain too open - as I read them, a 'technical capability notice' could still be used to demand a back door, resulting in a fight over what is 'practicable'."

For Labour, shadow home secretary Andy Burnham welcomed the stronger safeguards but said the party "will not be rushed" into reaching a judgement on the bill as "it has major implications for privacy and how we are governed and policed."

He said areas of potential disagreement concerned "the most intrusive powers" and "the widening of access to Internet Connection Records."

Ministers say the new powers are needed to fight terrorism, but internet firms have questioned their practicality - and civil liberties campaigners say it clears the way for mass surveillance of UK citizens.

Jim Killock, executive director of the Open Rights Group, said: "On first reading, the revised Bill barely pays lip service to the concerns raised by the committees that scrutinised the draft Bill.

"If passed, it would mean that the UK has one of the most draconian surveillance laws of any democracy, with mass surveillance powers to monitor every citizen's browsing history."

Communications Data Bill (Snooper’s charter)

The Coalition Government attempted to bring these proposals forward in the last Parliament but they were quashed by the Liberal Democrats.

Former Deputy Prime Minister, Nick Clegg, told BBC Radio 4:

“The Home Office wanted to collect everything on everyone in order to find the information on suspected terrorists or criminals they are looking for.

Implying that everyone may be guilty when millions of innocent people are just going about their everyday business free of any wrongdoing at all is... something which is not in keeping with long-standing British traditions.”

He said he favoured a "narrower approach" to data retention, and that other countries concentrate on collecting data on those people who "flicker on the radar screen of security services in the first place.”

What do you think?

How should your MP vote at Second Reading of the Investigatory Powers Bill?

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