Monday 9 November 2015

From Oversight to Insight - Hidden Surveillance Law Interpretations

The focus of my posts on RIPA, DRIPA and now the Investigatory Powers Bill has been on the scope and extent of the powers – what exactly they enable law enforcement and the agencies to do – rather than on oversight and safeguards, important though those are.

One aspect of oversight, however, bears directly on the scope of the surveillance powers granted by legislation. It relates to an issue that has perhaps not received as much attention in the UK as it has in the USA: secret interpretations of the law.

The problem arose in the USA partly as a result of the secret FISA court system. C
ontroversial previously secret interpretations of the law came to light following the Snowden disclosures. This led to, for instance, the Electronic Frontier Foundation's Secret Law is Not Law campaign.

We have a similar problem on this side of the Atlantic. Here, though, it is about interpretations conceived and acted upon by government without any court involvement.

The clearest example to date is the government’s interpretation of ‘external communications’ under RIPA. This was revealed by senior Home Office official Charles Farr in a witness statement filed in the Investigatory Powers Tribunal case brought by Liberty and others. The background is that GCHQ can intercept in bulk if its objective is to intercept external communications. So the meaning of 'external communications' is significant. The Home Office interpretation was controversial. It also had implications for who (or what) could be regarded as a sender or intended recipient of a communication, a foundational building block of RIPA. (See further paragraphs 6.52 and 12.25 of the Anderson Report ‘A Question of Trust’ and paragraphs 31 to 54 of my submission to Anderson.)

The Home Office’s interpretation, which underpinned the agencies’ operations under RIPA S.8(4) warrants, would not have seen the light of day had the NGOs not brought the IPT legal challenge. That occurred because of the Snowden disclosures. The interpretation was a significant, but previously hidden, aspect of the law under which the agencies were operating.

Another example was The Data Retention and Investigatory Powers Act (DRIPA), rushed through Parliament in four days in July 2014. The Home Office argued that amendments to RIPA’s territoriality provisions and to the definition of telecommunications services did no more than reflect what the legislation had always meant. The claim was untestable, since the public had no way of knowing how the Home Office might have interpreted the provisions either in the minds of its officials or in its previous dealings with communications service providers.

A similar issue is boiling up over the effect on end to end encryption of the Investigatory Powers Bill. The Home Office says, with some justification (although a debate is taking place around possible knock-on effects of other changes), that the draft Bill mirrors existing law. Clause 189(4)(c) of the draft Bill is very similar to paragraph 10 of the Schedule to the 2002 Maintenance of Interception Capability Order. On the face of it neither affects end to end encryption where the protection is applied not by the service provider but by the user. However the public is in no position to know whether the Home Office has adopted some other interpretation or, if so, whether it might be as open to debate as its view of external communications.

The Investigatory Powers Bill provides an opportunity to ensure that the proposed new oversight body proactively seeks out and brings to public attention material legal interpretations on the basis of which powers are exercised or asserted. Service providers might also be able to bring a legal interpretation asserted against them to the attention of the oversight body. This may be all the more necessary in the light of the new disclosure offences built into the draft Bill.

Such mechanisms would enable material legal interpretations to be publicly debated and if appropriate challenged. None of this would require to be made public any legal advice that the government had received, nor any factual matters that should properly remain secret, but only the substance of the legal interpretations themselves.

This could be an important protection against the possibility of groupthink, the tendency for members of a closed group to convince themselves of the rightness of a consensus position and to resist contrary views. It would contribute to the new standards for openness, transparency and oversight that the government has promised in the new legislation. Most fundamentally, by providing not only oversight but insight it would help to satisfy the basic rule of law tenet that the law should be foreseeable and accessible.

[Amended 7 pm 9 November 2015 to include reference to possible knock-on effects of other changes on end to end encryption]

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