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Human rights and the future of surveillance - Lord Anderson QC

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Lord Anderson of Ipswich's presentation to the Human Rights Lawyers' Association on 25 Oct 2018, kindly shared with his permission.

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Human rights and the future of surveillance - Lord Anderson QC

  1. 1. David Anderson Q.C. @bricksilk QMUL Lincoln’s Inn Fields 25 October 2018
  2. 2.  Powers enabling the collection and retention of data (by government or by others)  Much of which is not associated with current targets  Accessible by public authorities for specified purposes
  3. 3.  CSPs required to retain their subscribers’ traffic and location data for up to 2 years  Police obtain 300,000+ such data items p.a.  c. 15% of requests are for data more than 6 months old (but 37% in sexual offence cases, 27% in terrorism cases)
  4. 4. “Historic communications data is frequently useful, and sometimes of crucial importance, in any case when a suspect is identified only after the event; in tracing the previous communications or travel patterns of a suspect, for example to piece together a conspiracy; to identify a device from its IP address; and in relation to cyber- enabled and cyber-dependent crime. Data relating to a victim’s communications history may also be useful in solving a crime.” D. Anderson, 2018
  5. 5.  Strong selector process  Copy of all comms on chosen bearers held briefly  Strong selectors relating to individual targets applied to those comms in near real-time  Complex query process  Fewer bearers, but comms retained longer  Sequence of searches, variety of criteria
  6. 6.  Bulk powers used by SIAs for:  counter-terrorism  counter-proliferation  organised crime  child sexual exploitation  support of military operations  cyber-defence  Target discovery, target development, triaging of leads, basis for disruptive action  Almost always, bulk powers are used not alone but in conjunction with other powers
  7. 7. “While the principal value of the power lies in the collection of secondary data, the collection and analysis of content have also been of very great utility, particularly in assessing the intentions and plans of targets, sometimes in crucial situations. The various suggested alternatives, alone or in combination, may be useful in individual cases but fall short of matching the results of bulk interception. They may also be slower, more expensive, more intrusive or riskier to life.”
  8. 8.  Application personally by SIA Chief  Signed and issued personally by SoS  Approved by Judicial Commissioner  Necessary in interests of national security  Nec/prop for specified operational purposes  Must consider less intrusive measures, integrity/security of systems, privacy protection  Rules on retention, disclosure, destruction  Audited by technically skilled IPCO inspectors
  9. 9.  Full individual warrant required before the content of comms of a person known to be in the UK may be selected for examination  No such requirement for content of comms of a person outside UK, or metadata (cp AQOT Rec 80: “appropriately rigorous and rights-compliant procedures” should apply)
  10. 10. ECtHR - STRASBOURG CJEU - LUXEMBOURG
  11. 11. SCHREMS 1 (2014) EU law prohibits legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications TELE2/WATSON (2016) EU law prohibits legislation which provides for the general and indiscriminate retention of traffic and location data …except in areas where there is a high crime risk: and restrict to serious crime, prior independent authorisn, store data in EU, notify targets
  12. 12.  “In view of the scourge of global terrorism and other serious crime, such as drug trafficking, human trafficking, the sexual exploitation of children and cybercrime … the decision to operate a bulk interception regime in order to identify hitherto unknown threats to national security is one which continues to fall within States’ margin of appreciation.”  – Judgment, para 314
  13. 13. “In view of the independent oversight … and extensive independent investigations which followed the Edward Snowden revelations, [the Court] is satisfied that the intelligence services of the UK take their Convention obligations seriously and are not abusing their powers.” - Judgment, para 387
  14. 14. “Nevertheless, examination of those powers has identified two principal areas of concern: First, the lack of oversight of the entire selection process, including selection of bearers, selectors and search criteria for filtering intercepted communications, selection of material for examination Secondly, the absence of any real safeguards applicable to the selection of related communications data for examination.”
  15. 15.  “Given its history in the protection of civil liberties and the significant recent improvement to privacy laws and mechanisms, the UK can now justifiably reclaim its leadership role in Europe as well as globally.  The UK is now co-leading with that tiny minority of EU states which have made a successful effort to update their legislative and oversight framework dealing with surveillance.” Prof Joseph Cannataci, June 2018
  16. 16. “Thanks largely to pressure from civil society and many concerned officials and members of the UK Parliament, the UK’s oversight regime has been significantly improved.”
  17. 17. David Anderson Q.C. @bricksilk QMUL Lincoln’s Inn Fields 25 October 2018

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