Britain deserves better surveillance laws
When the Regulation of Investigatory Powers Act (Ripa) was enacted 11 years ago, the government described it as forward-looking and human-rights-compliant; a comprehensive code to govern the use of surveillance powers by public bodies. The home secretary, Jack Straw, went as far as to claim that it was "a significant step forward for the protection of human rights in this country".
It is now clear that Ripa is none of the things that the government claimed it was. For a start, it wasn't particularly forward-looking – as the information commissioner told a parliamentary committee in April, "Ripa was drafted for the wiretap age" and not the internet.
Consequently, Ripa offered no protection when, in 2006, BT and Phorm decided to run a secret trial of marketing software that intercepted the private internet sessions of thousands of customers.
Ripa certainly wasn't comprehensive, doing nothing to check the explosive growth in CCTV cameras, nor the more recent rise of ANPR (Automatic Licence Plate Number Recognition) in the UK. And Ripa most definitely wasn't well-drafted. Not only have some of our most senior judges struggled to understand its hideous complexity, but confusion over the meaning of section 1 of the act led the Metropolitan police to ignore mountains of evidence of phone hacking for several years.
Most of all, Ripa seems a very long way from being human-rights-compliant. As Justice's new report shows, Ripa doesn't restrain surveillance so much as actively license it. Indeed, it is nowadays hard to find a public body in the UK that doesn't have access to surveillance powers of some kind. This would be less problematic if only Ripa contained sufficient safeguards against unnecessary surveillance. In truth, the great majority of surveillance under Ripa is essentially self-authorised by the public body itself, as the sorry case of Poole borough council shows. Of just under 3m surveillance decisions taken under Ripa since October 2000, less than 5,000 of these were approved by a judge. You might not think that the best check against unnecessary surveillance by a public official was a more senior official in the same department, but that is the way that Ripa works for the most part. There are oversight commissioners, but they appear to rely heavily on "dip-sampling", and it seems highly doubtful that they examine more than a small fraction of the authorisations that are actually made.
The protection of freedoms bill seeks to address the problems of Ripa by requiring local authorities and the like to seek approval from magistrates in order to access communications data, use covert sources or carry out directed surveillance. But these measures would do nothing to address the more glaring holes in Ripa. In particular, the same mobile-phone conversation between two terror suspects may be admissible or inadmissible in a criminal case depending on whether it was recorded via a hidden microphone or digitally via the phone company. Planting a surveillance device in someone's house may be authorised by a politician or a judge depending entirely on whether the agency responsible is an intelligence body (eg MI5) or a law enforcement one (eg the police). And each of these activities is overseen by a different commissioner: the interception of communications commissioner for intercepts, the surveillance commissioner for intrusive surveillance by police, or the intelligence services commissioner for the same surveillance by MI5.
The bill also does nothing to address the manifest inadequacy of the Investigatory Powers Tribunal, a complaints body that has upheld only 10 complaints out of 1,100. To put this in context, a recent report found the success rate of complainants in cases involving immigration, social security claims, land registration and mental health varies between 10% and 40%. The success rate before the IPT, by contrast, is a mere 0.9%. Either public bodies get their surveillance decisions miraculously right in 99.1% of cases, or the IPT is simply inadequate as a mechanism for investigating claims of abuse.
Surveillance is a necessary activity for law enforcement and a vital part of our national security. It has saved countless lives and helped convict hundreds of thousands of criminals. But too much of what goes on under Ripa is simply unnecessary and Ripa does too little to prevent it. Britain deserves better surveillance laws than this and tinkering around the edges, as the protection of freedoms bill proposes to do, is no longer enough. Only root-and-branch reform of Ripa will be enough to roll back years of unnecessary surveillance.
© 2000-2011 David G. Arganian, all rights reserved.