Leading article

We trust our spies. But we shouldn’t trust this bill

The Investigatory Powers Bill is troubling, not because of the powers it grants, but because of the lack of restrictions on how they’re used

14 November 2015

9:00 AM

14 November 2015

9:00 AM

Were David Cameron in any way adept at spin, it would be tempting to think that the publication of the Investigatory Powers Bill had been deliberately timed so as to coincide with the opening of Spectre, the new James Bond film. The debate over the bill has turned into a question of whether we trust our spies, which by and large we do. But the real question to be asked is whether we trust the taxman, the police and our town halls with the powers of espionage — and that is another matter entirely.

The Investigatory Powers Bill does not actually contain new powers for the security services, who can already tap phones and access emails and have done for decades. It’s quite true that our spooks are in a technological race with jihadis who use every new app and platform to communicate with each other and assume alternate identities. But our spies have stayed one step ahead and can identify terrorist targets, as attested by the recent RAF drone strike in Syria. They are not asking for more freedom, nor are they getting it.

The last time that Britain passed spying laws was in 2000, with the flawed Regulation of Investigatory Powers Act. Talk at the time was — as ever — about the need for our spies to have proper powers (and this before the 11 September attacks). But before too long, Ripa was being used by nosey council enforcement types and police officers trawling through suspects’ computers on a hunch. Ripa didn’t reveal the secrets of the Blofelds and Goldfingers so much as those of ordinary law-abiding civilians. Jenny Paton, Tim Joyce and their three children, for instance, ended up being snooped upon by Poole council, which wrongly suspected they might be fibbing about their address in order to sneak the kids into a better primary school. A tribunal later ruled that Poole council had abused its powers.

‘A Question of Trust’, David Anderson’s report on surveillance powers, which was commissioned by the government to inform the drafting of the new bill, makes all this clear. In spite of being regularly used to justify new snooping powers, suspected terror offences are cited in only 1 per cent of applications to access data. A quarter of applications are for the investigation of drugs offences, 10 per cent are for financial offences and 9 per cent for sexual offences. Many of these cases may, of course, be serious enough to justify accessing communications data. The problem with the new bill, however, is not the powers available, but the lack of sufficient restrictions on how they’re used.

It is good that a judge rather than the Home Secretary will in future be required to authorise interception of communications, and that there will be a criminal offence for wilfully or recklessly collecting communications data. But clear limits are lacking. A Dutch court recently threw out a data-retention law because it didn’t contain set boundaries and allowed communications data to be used to solve bicycle thefts as well as terrorism. We need a debate like this, to have the limits we agree on enshrined in law.

If constables and council enforcement officers are allowed to behave like jumped-up spies, then they will — spending more time behind computers instead of on the streets. The danger is not just that citizens’ privacy will be infringed, but that law enforcement will become skewed towards discovering trivial offences rather than serious crimes. It would be very easy, for example, to use data on our website visits — which the new bill proposes that internet providers should keep for 12 months — to catch people who watch live-streamed television on the internet in spite of not possessing a TV licence. All this would just jam up the courts even more: TV licence-dodgers already take up one in ten cases heard by magistrates.

Before the internet, police had no way of tracing every book we read, reading every letter we received in the post, and overhearing our face-to-face conversations. The internet has provided infinite opportunities for snooping and while the spies have used their powers sparingly, the police have not.

The government says it wants one investigatory powers law which applies across all public authorities, from community police officers to spies. But why? In Canada, there are two privacy laws: one for the spies and the other for the rest of government. There is merit in this approach. The law ought to recognise that security services are involved in a fundamentally different activity than officials concerned with minor offences.

For too long, successive governments have hammered through spying laws while muttering about national security and hoping their alarmism would take the place of serious debate. This time, we must do better.

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