High Court Urged To Force Urgent Changes To Surveillance Law

The High Court has been urged to force the government to urgently rewrite surveillance laws after portions of the controversial Investigatory Powers Act (IPA), known as the ‘Snooper’s Charter’, were found to be incompatible with EU law.

Human rights campaign group Liberty said it wants new legislation introduced by July to amend the sections of IPA in question.

But the government said it has already proposed changes that address the two areas in which surveillance law was found to be deficient, and wants until April of next year for those changes to be brought into force.

Separately, the government published a previously secret direction relating to criminality by espionage agents, following a challenge by campaigners.

‘Limits’ to surveillance

In January the Appeals Court found that section one of DRIPA, the IPA’s predecessor, was “inconsistent” with EU law because it doesn’t limit data collection to cases involving fighting serious crime and isn’t overseen by an independent authority.

The data in question includes UK citizens’ phone records and information on their internet activity, although not the content of communications.

The IPA succeeded DRIPA after it expired at the end of 2016 and incorporated DRIPA along with other measures. Campaigners argue the findings against DRIPA therefore apply to the IPA.

The original case was brought by Labour deputy leader Tom Watson in 2014, supported by Liberty, and was won in 2015.

Martin Chamberlain QC said Liberty recognises the data involved could be “vital” for fighting crime, according to a report by the News & Star newspaper.

But he added that “intrusive capabilities must be balanced by appropriate limits and safeguards”.

Campaigners demand urgent changes

He argued the government should “disapply” the IPA with regard to the two aspects in question, as well as other rules on the retention of internet data relating to health and finances.

He also urged the court to refer other aspects of the IPA related to national security and lawyer-client privilege, which the government hasn’t conceded breach EU law, to the Court of Justice of the European Union.

James Eadie QC, representing the government, responded that most of the communications data retained will never be accessed by the state because it’s only used when relevant to particular investigations.

“In reality the law does not permit vast, intrusive collection by the state of communications data,” he said.

Eadie said the government needs until April 2019 to agree the new laws it has begun formulating and to create a new and “fully independent authorisation regime”.

‘Third direction’ published

Separately, the government made public a previously secret prime ministerial direction given to the Investigatory Powers Commissioner, which oversees surveillance powers, following a legal challenge by campaign groups Privacy International and Reprieve in the Investigatory Powers Tribunal.

Two other directions, relating to the collection of personal data and rules for detaining people overseas, have previously been made public and are now followed by the so-called “third direction”.

The prime minister has now made the third direction public, disclosing that it relates to the Commissioner’s oversight of Secret Service guidelines on the use of agents who participate in criminality.

Prime minister Theresa May said the directions related to detention and criminality would now be deposited in the Houses of Parliament libraries.

“In accordance with my obligation to publish such directions under Section 230 of the Investigatory Powers Act 2016, I am now depositing in the Libraries a copy of both directions,” she said in an official statement.

Solicitor Millie Graham Wood of Privacy International said there was no reason why the document couldn’t have been made public earlier.

“Had we not sought to challenge the government over the failure to publish this direction, together with Reprieve, it is questionable whether it would have ever been brought to light,” she stated.

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Matthew Broersma

Matt Broersma is a long standing tech freelance, who has worked for Ziff-Davis, ZDnet and other leading publications

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