Tired of having its surveillance powers pulled up short by the courts and independent watchdogs, the UK government is racing to pre-empt their rulings by slotting in make-shift legislation that will preserve sweeping new surveillance powers to target more people around the world.
Parliamentarians are rushing through the fast-track Data Retention and Investigatory Powers (DRIP) bill this week to embed UK bulk data surveillance systems, by confirming powers to penalise overseas internet and phone companies anywhere in the world if they refuse to comply with an interception warrant from London.
The same week civil liberties groups from the UK and abroad, including Pakistani digital rights group Bytes for All and the American Civil Liberties Union, have called on the Investigatory Powers Tribunal (IPT), UK arbiter on surveillance issues, to determine whether bulk interception, analysis and related intelligence-sharing arrangements with the US, is unlawful under human rights law.
At the same time the UK government is pushing a fast track law is needed to clarify their powers to force overseas providers to tap their channels for UK intelligence teams and recompense them for the trouble.
The civil liberties groups say that amounts to new and unprecedented powers that will expand the mass interception systems they are challenging at the IPT this week.
Despite detailed revelations by Edward Snowden, the UK government says it will ‘neither confirm nor deny’ the existence of the UK’s specialist Tempora mass communications surveillance programmes.
To get round this semantic detail, the IPT will be asked to determine – ‘hypothetically’ – that if the Tempora programme did exist, would it violate the rights to privacy and freedom of expression enshrined in Articles 8 and 10 of the European Convention on Human Rights (ECHR), which is binding on the UK and written into British law?
Secondly the IPT will be asked, again ‘hypothetically’, if the UK government had access to intelligence collected by the US government’s own bulk surveillance programmes, called PRISM and UPSTREAM, would that also violate the same ECHR articles?
Hence the plans to rush through a new law to pre-empt any ruling by the IPT that might limit, or even slow down the expansion of the government’s digital snooping powers, a strategy revealed only last week by UK MP Tom Watson and confirmed by the government soon after.
Up to last week the government had always fudged the question whether the law would be changed to take account of an April ruling by the European Court of Human Rights that Britain’s existing data retention laws breached the two ECHR articles, as the rights groups’ appeal to the IPT asserts.
Then after months of silence, the three main UK parties revealed that they had come to a secret deal to “railroad” surveillance laws through parliament to fix it in just three days, Watson said.
The government says there’s no time for a full discussion. “Yet parliament went into recess a week early in May because we were told there was no need to debate further legislation,” he wrote in the Guardian last week. “The bill was published in draft form a few hours ago. It’s pointless attempting to scrutinise it because, thanks to the secret deal, we know it will be law by the end of next week.”
Interviewed by the Guardian over the weekend, Snowden himself said it was very unusual for a public body to pass an emergency law such as this in circumstances other than a time of total war. “I mean we don’t have bombs falling. We don’t have U-boats in the harbour.”
Suddenly it had become a priority after the UK government had ignored the issue for months. “It defies belief.” He compared the situation to a similar move in the US in 2007 when the Bush administration was forced to introduce legislation, the Protect America Act, citing the same concerns about terrorist threats and the NSA losing cooperation from telecom and internet companies.
“I mean the NSA could have written this (bill),” he said. “They passed it under the same sort of emergency justification. They said we would be at risk. They said companies will no longer cooperate with us. We’re losing valuable intelligence that puts the nation at risk.”
Rights campaigners say the reinforced extra-territorial powers they are challenging at the IPT and are plugged into to the fast-track DRIP bill will give legal cover to Tempora-style programmes around the globe, supported by the UK and US governments’ intelligence community and its covert network of data sharing systems.
A joint briefing note to MPs by Liberty, Privacy International, the Open Rights Group, Article 19, Big Brother Watch and English Pen warns that the small print in clause five of the six-clause bill extends the 2000 definition of “telecommunications services” to allow the collection of a wider range of data, including webmail and some social media traffic data.
Documents from Snowden’s files revealed that the UK’s central surveillance hub at GCHQ has already been tapping into transatlantic fibre-optic cables and storing huge amounts of data for up to 30 days under the Tempora programme.
The groups want MPs and peers to ensure that when they do pass the DRIP bill as is expected, the Act’s sunset clause – when the legislation automatically expires – is brought forward from December 2016 to this December.
Meanwhile this bizarre race between the forces of public accountability and the government’s efforts to outpace it goes on.