Steve Peers
I have concerns about the lack of democratic oversight regarding UK law changes that impact privacy rights, especially those connected to EU law. Because of this, I joined others in signing an open letter to MPs. This letter was published in the Guardian and other publications. I want to recognize Andrew Murray and Paul Bernal for leading this effort.
This is the complete letter to all members of the House of Commons:
Dear Parliamentarian,
Ensuring the Rule of Law and appropriate democratic processes for UK surveillance law revisions
Actions Taken by the Previous Government
Over the past couple of years, the UK’s surveillance laws and policies have faced scrutiny as media reports revealed and questioned the increasingly broad and intrusive powers of the state. This type of examination is positive for a functioning democracy. However, despite the need for transparency in all areas of lawmaking, particularly those subject to controversy, the previous government repeatedly rejected calls for open and transparent assessments and critiques of UK surveillance powers. Instead of engaging in open dialogue, they reacted to legal challenges by expanding state powers under the guise of draft Codes of Practice and “clarifying amendments.” As a new Government takes office, we anticipate another round of UK surveillance law revisions, likely including the reintroduction of the Communications Data Bill as signaled by the Queen’s Speech. At this critical juncture, we urge the new Government and members of the House to guarantee that any legal modifications, especially expansions of power, undergo thorough and transparent scrutiny by Parliament and are open to public and stakeholder consultation.
Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), several leading academics in the field, many of whom have signed this letter, advocated for comprehensive and proper Parliamentary scrutiny of the Bill. We aimed to ensure Parliamentarians were not misled about the true extent of the Bill’s power. Our concern stemmed from the Home Secretary’s attempt to portray the Bill, which significantly broadened investigatory powers, as simply reaffirming the existing data retention regime.[1]
Since that letter, it has become clear that the DRIP Bill was not an isolated incident. Attempts to expand surveillance powers while seemingly suppressing robust democratic deliberation have continued. For example, in February 2015, the Home Office released a draft of the Equipment Interference Code of Practice.[2] This draft marked the first time intelligence agencies openly sought explicit authorization for computer hacking activities both within and outside the UK. Hacking represents a significantly more intrusive surveillance method compared to anything previously sanctioned by Parliament. Moreover, it jeopardizes the overall security of internet services because the tools employed by intelligence agencies for hacking can create or perpetuate security flaws. These vulnerabilities can then be exploited by criminals for illegal activities and by foreign governments to breach our privacy. However, instead of pursuing authorization for its hacking activities through primary legislation and comprehensive Parliamentary review, the Government attempted to achieve this through a Code of Practice.
The previous Government also introduced an amendment via the Serious Crimes Act 2015, characterized in the Bill’s explanatory notes as a ‘clarifying amendment’.[3] This amendment effectively grants immunity to police and intelligence services from criminal liability related to hacking. The immediate impact of this change is evident in the ongoing litigation involving several organizations that are suing the Government based partly on the amended Computer Misuse Act 1990.[4]
The Path Forward
The new Conservative Government has indicated its intent to introduce new surveillance powers by reviving the Communications Data Bill. If passed, this would compel internet and mobile phone companies to retain customer data related to browsing, social media use, emails, voice calls, online gaming, and text messages for up to a year. This information would then be accessible to the government and security services. Additionally, we expect a review of the Regulation of Investigatory Powers Act 2000 during this Parliament. This Act currently governs a significant portion of the Government’s surveillance powers. David Anderson QC, the Independent Reviewer of Terrorism Legislation, has already undertaken a comprehensive review of the operation and regulation of investigatory powers, with a specific focus on the interception of communications and communications data. Although his report has been presented to the Prime Minister, it awaits public release. Once available, it is crucial for Parliament to thoroughly scrutinize the report and any recommendations stemming from it.
Current law mandates that any use of surveillance powers must be proportionate to any potential privacy infringement. This aligns with Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights. Given this, we believe that any expansion or modification of the UK’s surveillance powers should be explicitly outlined in primary legislation and clearly articulated in the explanatory notes accompanying any proposed Bill. This ensures that the Bill and its implications are subject to open and thorough debate in Parliament. Both our domestic courts and the European Court of Human Rights consider the extent and quality of Parliamentary involvement before enacting any measure that limits rights when assessing the proportionality of such a measure. Should the matter be brought before a court, one key aspect under scrutiny would be the rigor of the review conducted by MPs regarding the necessity of expanding these powers. The Government should not be allowed to discreetly alter laws at will, especially when these changes have the potential to compromise our privacy and security.
This letter has been signed by 35 academic researchers with diverse viewpoints. While some believe that increased surveillance powers are necessary to address evolving threats, others consider them an unwarranted intrusion by the state. Despite our differences, we share a common goal: upholding the Rule of Law and restoring Parliamentary oversight. Therefore, we call upon all members of the House of Commons, new and returning, from all parties, to join us in this endeavor by ensuring rigorous Parliamentary scrutiny of all developments in UK surveillance laws and powers as proposed by the current Government.
Signatories
Andrew Murray (contact signatory)
Paul Bernal (contact signatory)
Professor of Law
London School of Economics
Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia
Subhajit Basu
Associate Professor
University of Leeds
Sally Broughton Micova
Deputy Director LSE Media Policy Project, Department of Media and Communications
London School of Economics and Political Science
Abbe E.L. Brown
Senior Lecturer
School of Law
University of Aberdeen
Ian Brown
Professor of Information Security and Privacy
Oxford Internet Institute
Ray Corrigan
Senior Lecturer in Maths, Computing and Technology
Open University
Angela Daly
Postdoctoral Research Fellow
Swinburne Institute for Social Research
Swinburne University of Technology
Richard Danbury
Postdoctoral Research Fellow
Faculty of Law
University of Cambridge
Catherine Easton
Lancaster University School of Law
Lilian Edwards
Professor of E-Governance
Strathclyde University
Andres Guadamuz
Senior Lecturer in Intellectual Property Law
University of Sussex
Edina Harbinja
Lecturer in Law
University of Hertfordshire
Julia Hörnle
Professor in Internet Law
Queen Mary University of London
Theodore Konstadinides
Senior Lecturer in Law
University of Surrey
Douwe Korff
Professor of International Law
London Metropolitan University
Mark Leiser
Postgraduate Researcher
Strathclyde University
Orla Lynskey
Assistant Professor of Law
London School of Economics
David Mead
Professor of UK Human Rights Law
UEA Law School
University of East Anglia
Robin Mansell
Professor, Department of Media and Communication
London School of Economics
Chris Marsden
Professor of Law
University of Sussex
Steve Peers
Professor of Law
University of Essex
Gavin Phillipson
Professor, Law School
University of Durham
Julia Powels
Researcher
Faculty of Law
University of Cambridge
Andrew Puddephatt
Executive Director
Global Partners Digital
Judith Rauhofer
Lecturer in IT Law
University of Edinburgh
Chris Reed
Professor of Electronic Commerce Law
Queen Mary University of London
Burkhard Schafer
Professor of Computational Legal Theory
University of Edinburgh
Joseph Savirimuthu
Senior Lecturer in Law
University of Liverpool
Andrew Scott
Associate Professor of Law
London School of Economics
Peter Sommer
Visiting Professor
Cyber Security Centre, De Montfort University
Gavin Sutter
Senior Lecturer in Media Law
Queen Mary University of London
Judith Townend
Director of the Centre for Law and Information Policy
Institute of Advanced Legal Studies
University of London
Asma Vranaki
Post-Doctoral Researcher in Cloud Computing
Queen Mary University of London
Lorna Woods
Professor of Law
University of Essex