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Where next for the Regulation of Investigatory Powers Act?


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Talk at Open Tech 2015 on legal reform of UK interception and surveillance laws, including a comparison of the Intelligence and Security Committee and David Anderson reports.

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Where next for the Regulation of Investigatory Powers Act?

  1. 1. What next for RIPA? @IanBrownOII
  2. 2. Grim RIPA • “RIPA, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.” –David Anderson QC (2015) s.35 • “The interactions between the different pieces of legislation which relate to the statutory functions of the intelligence and security Agencies are absurdly complicated.” -I.S.C. (2015) p.117 • “The whole subject matter with which my office is concerned is complicated and sensitive. Fully understanding it all requires a period of mature experience and reflection, and there was a real risk during the whole of 2013 that I might accidentally and from inexperience overstep the proper limits of sensitivity or make inaccurate or incomplete public statements with off the cuff oral comments… RIPA 2000 Part I contains provisions, some of which are difficult for anyone to get their head round” –Sir Anthony May, IoCC 2013 Annual Report ss.6.4.3/6.5.3
  3. 3. Intelligence and Security Committee David Anderson “introduce a new Intelligence Services Bill setting out, in one Act of Parliament, the functions of the three UK intelligence and security Agencies… [and] each intrusive capability available to the Agencies… the time has come for much greater openness and transparency regarding the Agencies’ work… All capabilities which provide the content of an individual’s communications should be subject to the same legal safeguards” “RIPA Part I, DRIPA 2014 and Part 3 of CTSA 2015 should be replaced by a comprehensive new law, drafted from scratch…structured and expressed so as to enable its essentials to be understood by intelligent readers across the world”, covering Telecommunications Act 1984, hacking, Wireless Telegraphy Act 2006, bulk personal data, international sharing “Ministers are able to take into account the wider context of each warrant application and the risks involved…[and] are democratically accountable for their decisions. It is therefore right that responsibility for authorising warrants for intrusive activities remains with them.” “Specific interception warrants, combined warrants, bulk interception warrants and bulk communications data warrants should be issued and renewed only on the authority of a Judicial Commissioner… [Commissioners] should be replaced by a new Independent Surveillance & Intelligence Commission” “there are legitimate concerns that certain categories of Communications Data…have the potential to reveal details about a person’s private life (i.e. their habits, preferences and lifestyle) that are more intrusive. This category of information requires greater safeguards than the basic ‘who, when and where’ of a communication.” “In recognition of the capacity of modern communications data to produce insights of a highly personal nature, where a novel or contentious request for communications data is made, the DP should refer the matter to ISIC for a Judicial Commissioner to decide whether to authorise the request.” “The Interception of Communications Commissioner should be given statutory responsibility to review the various selection criteria used in bulk interception to ensure that these follow directly from the Certificate and valid national security requirements.” “The capability of the security and intelligence agencies to collect and analyse intercepted material in bulk should be maintained, subject to rulings of the courts, but used only subject to the safeguards in Recommendations 40-49 and 72-80”
  4. 4. Additional Anderson • “The Home Secretary should be able by Notice…to require service providers to retain relevant communications data for periods of up to a year” • “Early and intensive dialogue” on web log retention for “resolving shared IP addresses or other identifiers (in particular, to identify the user of a website); identifying when a person has communicated through a particular online service provider (so as to enable further enquiries to be pursued in relation to that provider); and/or allowing websites visited by a person to be identified (to investigate possible criminal activity).” • “Few now contend for a master key to all communications held by the state, for a requirement to hold data locally in unencrypted form, or for a guaranteed facility to insert back doors into any telecommunications system. Such tools threaten the integrity of our communications and of the internet itself. Far preferable, on any view, is a law-based system in which encryption keys are handed over (by service providers or by the users themselves) only after properly authorised requests.” • Extraterritorial effect: seek cooperation of providers and streamline MLAT procedures; “take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.” • “There should be a right of appeal to an appropriate court from rulings of the IPT, on points of law only…[which] should be given the same power as the High Court to make a declaration of incompatibility under HRA 1998 s4”
  5. 5. Government plans • “The [Investigatory Powers Bill] covers all investigatory powers including communications data” –Queen’s Speech briefing, 27/5/15 • “Collectively I believe [the ISC/Anderson/RUSI reports] provide a firm basis for consultation on legislation… the Government will publish a draft bill in the Autumn for pre-legislative scrutiny by a Joint Committee of Parliament, with the intention of introducing a Bill early in the New Year… [which] will need to be in place by the end of December 2016.” –Home Secretary Oral Statement, 11/6/2015 • “the Government will be taking forward Sir Nigel [Sheinwald]’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework.” –PM Written Statement, 11/6/2015