Expanding powers, mass surveillance is easy. Tackling terrorism is hard

I wrote to my MP Nicola Blackwood on 1 December 2014 expressing concern about the Counter Terrorism and Security Bill.

I've had a reply today, copy below.

"Dear Mr Corrigan,

Thank you for your email regarding the Counter Terrorism and Security Bill, I do apologise for the delay in my response.

I understand your concerns about the Data Retention and Investigatory Powers Act, in particular that it came before the House as emergency legislation, and I share your desire to ensure that people’s civil liberties are protected at all times. I have consistently said it is absolutely essential that powers to monitor communications are confined to what is entirely necessary and proportionate to protect our national security, and also to be accountable.

To be clear, this legislation goes no further than regulations which are already in place. Rather, it brings clarity to existing law following a ruling of the European Court of Justice (ECJ) in April. The ECJ’s ruling would have struck down regulations that let internet and phone companies retain communications data for law enforcement purposes for 12 months, and therefore a clearer legal framework was needed to underpin companies’ cooperation with law enforcement and intelligence agencies to intercept the communications of serious organised criminals and terrorists. I understand that some companies had already made clear to the Government that they would be unable to work with the UK on this unless that law was consolidated and made clear.

As you may know, I am a member of the Home Affairs Committee, who play an active role in scrutinising Government legislation, the Home Secretary, Rt Hon Theresa May MP, appeared before the Committee to discuss the provisions of the Act. The Government has stated that communications data and interception plays an important role in prosecuting cases of serious organised crime. Therefore, whilst before the Committee, I took the opportunity to ask the Home Secretary about this and she clarified that such data is used in 95% of cases that the Crown Prosecution Service deals with in relation to serious and organised crime; it has been used in all major counter-terrorism investigations over the last decade.

With regards to your concerns about the Counter Terrorism and Security Bill and data retention, this Bill will require Communications Service Providers to retain data that can link a specific device or individual to an IP address. This data will only be available to those public bodies who are entitled to it for lawful purposes, where it is necessary and proportionate to do so on a case-by-case basis.

Currently there are gaps in communications data capability that have a serious impact on the ability of law enforcement to carry out their functions. One such gap is the ability to identify who in the real world was using an Internet IP address at a given point in time. Without this data, it is not always possible to attribute a particular action on the internet to an individual person. For example, it would improve the ability of the police and other agencies to identify terror suspects who may be communicating with each other via the internet and plotting attacks. The Bill also establishes a Civil Liberties Board that would provide further assurance to the public about counter-terrorism arrangements, including ensuring that legislation and policies have due regard for civil liberty and privacy. The Government is also restricting the number of public bodies that can ask for communications data and publishing annual transparency reports, making more information publicly available than ever before. Progress of the bill through Parliament can be found online via: http://services.parliament.uk/bills/2014-15/counterterrorismandsecurity.html.

The Security Service believes that since the attacks on 7 July 2005, around forty terrorist plots have been disrupted. As you may know the independent organisation responsible for gauging the threat posed by terrorism to the UK, the Joint Terrorism Analysis Centre, recently decided to raise the threat level posed by terrorism to 'severe' and I am confident that this is an objective assessment of the situation the UK faces.

Please be assured that through my role on the Home Affairs committee, I will continue to scrutinise Bills of this nature. You may be interested in the seventeenth report by the committee on Counter Terrorism, which is currently awaiting a response from the Government. Further information about this and the role of the committee is available at: http://www.publications.parliament.uk/pa/cm201314/cmselect/cmhaff/231/23102.htm, which I hope you will find useful. I have also passed on your concerns about the Counter Terrorism and Security Bill to James Brokenshire MP, Minister for Security and Immigration and I will of course pass on to you any response I receive in due course.

Thank you again for taking the time to contact me.

Kind regards,

Nicola"

I've responded again but don't hold out much hope of getting through.

Dear Nicola,

I'm disappointed that you would continue to claim the Data Retention and Investigatory Powers Act (DRIPA) 2014 goes no further than regulations which were already in place.

It's a relatively short Act and well worth reading in full but to take just three of the eight sections of the Act:

Section 1 of the DRIPA attempted to re-enact the Data Retention Regulations 2009 (S.I. 2009/859), in addition to giving the Secretary of State, under sections 1(3), 1(4) and 1(7) wide ranging Henry VIII clause powers to amend the law, essentially as and when she likes.

Section 4 expanded the the immensely complex Regulation of Investigatory Powers Act (RIPA) 2000 interception powers, including the extra-territorial reach of those powers.

Section 5 expanded the scope of the meaning of "communications service" to a degree that it could be interpreted to mean any entity using a computer and the internet.

I'd additionally refer you, in particular, to excellent legal analyses by Steve Peers, Graham Smith, Tom Hickman, Liberty, the Open Rights Group, Privacy International, Big Brother Watch, Article 19 and English PEN.

I'm familiar with the Home Secretary's appearance before the Home Affairs Committee saying communications data is used in 95% of cases that the Crown Prosecution Service deals with in relation to serious and organised crime. The only surprise was that it was not 100%.

I won't repeat the objections I have already outlined in relation to the Counter Terrorism & Security Bill, other than to re-inforce my concern about the Bill's Section 21 obligation on public bodies including universities, schools, nurseries and councils to prevent terrorism.

Since I wrote to you on 1 December, Security Minister, James Brokenshire has gone on record at the Joint Committee on Human Rights session on 3 December 2014, as saying that section 21 sanctions under the Act could include prison time for university staff. The Committee has since recommended that the new "prevent"duty is not appropriate for application to universities. I would therefore appreciate an indication of where you stand on this.

More generally, though, I would make a handful of concluding points.

Changing the law is easy.

Expanding powers is easy.

Throwing public money at the security services, computers and mass surveillance is easy.

Playing the tough-on-terrorism rhetoric to the gallery and the press is easy.

And the, so far, short 21st century history of the effects of these easy activities is not pretty.

Actually tackling terrorism is hard.

It requires gold standard human intelligence as well as signals intelligence (and not the mythical magic terrorist catching machines and laws policy makers seems to believe in).

It requires social and economic stability.

It requires trust in the institutions of state, like the police and security services.

It requires equality of opportunity, regardless of background, race, creed, disability, gender or any other form of human categorisation.

It requires an absence of the demonisation of entire communities or peoples just because someone commits an act of violence they claim to be in the name of that community or their religion.

It requires a respect for and implementation of the rule of law and fundamental rights all over the world.

It requires an absence of state, commercial or cause sanctioned rendition, torture, maiming and murder sometimes on an industrial scale and by remote control.

It requires care, concern and deeply embedded respect for human dignity from individuals through all levels of society and its public, commercial and other institutions.

You were sold a pig in a poke with DRIPA. Don't buy into the same confidence trick with the Counter Terrorism & Security Bill and the snoopers' charter and the Prime Minister's new grand plan to ban encryption and ensure there are no communications the government cannot read.

It is too easy and does incalculable damage.

Regards,

Ray

Update: Thanks to the eagle eyed spotters of the spelling error in the title, now corrected.