Overlooked - Liberty

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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 31 reason justifying extension. It follows that the introduction of Part III could be a useful tool in obtaining access. There are serious civil liberty implications of 90-day pre-charge detention and it is likely that, whatever the concerns about Part III, its introduction would have removed one of the main planks justifying extended time limits. Arguably in terms of being a ‘lesser evil’, the introduction of Part III (which of course has already been passed by parliament) could be of benefit. Unfortunately the introduction of Part III is coinciding with government plans to introduce legislation to further extend pre charge detention limits in terrorism cases so there is not even this limited justification for introduction. Conclusion At the heart of the legitimate justification for intrusive surveillance is the issue of accountability. Even the most invasive surveillance requires nothing more than authorisation from the executive. The most ‘independent’ figure in the system is the Surveillance Commissioner who authorises non-urgent directed surveillance warrants. The Surveillance Commissioner is a post created by statute, appointed by the Secretary of State. What is sorely lacking from the targeted surveillance framework is independent judicial authorisation. This lack of independent authorisation contrasts with surveillance in the United States. This is perhaps surprising as the US is often criticised for its cavalier approach to individual privacy. The scope of the PATRIOT Act was referred to earlier, while recent reports over tensions such as that between the EU and US over the extent of flight passenger data required by the American authorities can help create assumptions that the US pays scant regard to privacy 59 . Whatever one’s opinion of the current US approach to privacy, constitutional safeguards against excessive intrusion seem powerful. Historically there has always been independent judicial authorisation at the heart of the US surveillance process. Any surveillance warrant against a US citizen needed (and still needs) to be granted by a court. Meanwhile, interceptions of communications to the US originating from abroad needs authorisation from a special Foreign Intelligence Surveillance Court. After the September 11 bombings, President Bush approved a scheme of self-authorisation of the interception of international communications. When the New York Times uncovered the story, the American Civil Liberties Union brought a challenge that resulted in a US Federal judge ruling in August 2006 that the programme of interception without a warrant was unconstitutional. This challenge to international surveillance techniques, along with increasing use of mass data gathering with the US, has meant that the authorities have been under pressure to reassure the American public that there is no unauthorised domestic surveillance. In November 2006 Dana Perino, deputy press secretary at the White House, went on the record to say “There is no domestic surveillance [in the United States] without court approval” 60 . 59 One consequence of the September 11 bombings was that the US demanded detailed information on all passengers travelling there. As a consequence a Passenger Name Record (PNR) containing names, birthdate, credit card details and other identifiers has been created for each of us when we go the US. It now appears that an agreement between the UK and US governments means the information provided on Britons will go beyond even what is required on the PNR. Information about other transactions on the credit card used for payment and email addresses will also be provided to US authorities. See http://news.bbc.co.uk/1/hi/world/europe/5029258.stm 60 http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm
32 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain The contrast could not be clearer. In the UK there is no independent judicial authorisation of intrusive surveillance. In the US, an attempt to subject a limited number of communications to surveillance without judicial approval is deemed ‘unconstitutional’. The Investigatory Powers Tribunal cannot be said to provide a safeguard against improper authorisation as its role is to determine the legality of interception that has already occurred. Similarly, the Interception of Communications Commissioner reviews the operation and use of intercept and communications data access powers after the event. For all its complexity, its unwieldiness and notwithstanding the other problems referred to in this section, RIPA would offer a reasonably proportionate surveillance framework, were it not for this single fundamental deficiency. Intrusive surveillance is by its very nature secretive. Without proper and independent authorisation of surveillance, no scheme can properly protect privacy and civil liberty, nor offer proper accountability. In his diaries, the former Home Secretary, David Blunkett, gave a frank account of how he feared he was suffering a breakdown as a consequence of the pressures he was under. He recalled: “My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked” 61 . Even if we were to have absolute faith in the ability of those who authorise surveillance warrants to ensure that they are only issued in accordance with human rights principles of necessity, proportionality and purpose, it is vital that proper independent scrutiny should be at the heart of authorisation. The fact that RIPA apparently allows scope for a single member of the executive with many more pressing demands on his time to sign surveillance warrants, including mass certified warranting within the UK, in the complete absence of judicial process demonstrates the need for reform. So far the Government has not indicated any intention to move towards judicial authorisation of communication interception. Meanwhile the Conservatives have expressed concerns over the excessive use of surveillance powers but have not as yet committed to a lessening of executive control. There are however indications of growing political interest in authorisation mechanisms. In July 2007 The Joint Committee on Human Rights published a report on counter terrorism policy and human rights. The main focus of the Committee’s report were proposals to increase pre-charge detention limits above 28 days in terrorism cases. However, the Committee also considered the regime for RIPA authorisation, concluding that ‘RIPA be amended to provide for judicial rather than ministerial authorisation of interceptions, or subsequent judicial authorisation in urgent cases’ 62 . While the tide might be turning, no change to RIPA can be guaranteed. It is, therefore, necessary to consider other means that might be used to regulate the use of RIPA. The sheer volume of authorisation of the more widely used and widely available powers such as accessing communications data would make judicial regulation logistically unfeasible at the present time. In his final report before retiring from his post, the former Interception of Communication Commissioner Sir Swinton Thomas reported that over 439, 000 requests for communications traffic data were made in the period 1 January 2005 to 31 March 2006 63 . His report was critical of the 61 See for example http://politics.guardian.co.uk/blunkett/story/0,,1889881,00.html 62 Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning. Nineteenth Report of Session 2006-07 at paragraph 161 http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/157/157.pdf 63 According to the report for 2005-6 there were 439,054 requests – http://www.ipt-uk.com/docs/HC315.pdf
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