This document summarizes a presentation on the Investigatory Powers Bill (IP Bill) and related issues around government surveillance powers and oversight. The presentation discusses: - Requirements under Article 8 of the European Convention on Human Rights for any interference with privacy to be in accordance with clearly defined and accessible laws that are necessary and proportionate. - Issues with secret interpretations of surveillance laws and the quality and accessibility of the laws. - Questions around the extraterritorial application of UK surveillance laws. - Concerns about the definitions and scope of capabilities proposed in the IP Bill around issues like internet connection records and encryption. - Calls for reforms to better distinguish between communications data and content. - The need for

1. #IPBill
Oversight or Insight?
Graham Smith, Bird & Bird LLP
@cyberleagle
Public Law Project Annual Conference
12 October 2016

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Article 8 ECHR – privacy protection
No interference by a public authority except such as is:
● in accordance with the law and
● is necessary in a democratic society
● in the interests of
• national security,
• public safety
• or the economic well-being of the country,
• for the prevention of disorder or crime,
• for the protection of health or morals,
• or for the protection of the rights and freedoms of others
● Proportionality

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Existence of law
Quality of law
Accessibility
In accordance with the law

4. Secrecy and quality of law
are natural antagonists
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Accessibility

5. Secret interpretations
of the law
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6. Not just a US problem
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RIPA S8(4) – bulk interception

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RIPA/DRIPA - extraterritoriality
Mrs May: … The position is not changing; what is changing is simply
being absolutely without doubt that the extraterritoriality is there,
because it is now in the Bill, rather than it being asserted by
Government as having been the intention of the previous legislation.
Mrs May: … On the issue of lawful intercept, it has been the contention
of this Government—and, I believe, the previous Government when they
passed the Regulation of Investigatory Powers Act 2000—that that had
extraterritorial application. That has been legally questioned and we
have continued to assert that that is the power that currently exists. The
Bill puts that beyond doubt, by putting it clearly into primary legislation,
so nobody can be in any doubt that the power that we have always said
existed does in fact exist.
Hansard 15 July 2014 (DRIPA)

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Thematic warrants under RIPA
Revealed by Intelligence and Security Committee
March 2015
Hansard 12 April 2016 (IPBill Commons Committee)
Joanna Cherry QC, MP

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S94 Telecommunications Act 1984

11. A continuing issue
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#IPBill Technical capability notices
End to end encryption

13. The government, in seeking to future-
proof the proposed legislation, has
produced definitions of internet
connection records and other terms
which have led to significant confusion
on the part of communications service
providers and others.
Commons Science & Technology Committee
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Content versus communications data

17. A proposal
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David Anderson QC’s Bulk Powers Review

19. Graham Smith
graham.smith@twobirds.com
@cyberleagle
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