This by law enforcement, security, intelligence agencies and

This assessment piece focuses
upon the following research question: ‘Are the powers for the monitoring of
electronic communications in the 2016 Investigatory Powers Act an unwarranted restriction of individual liberties?
Referring to Gearty in the answer.’ This piece will critically evaluate the
Investigatory Powers Act 2016, where a brief background on the Act will be
stated, a thorough analysis of the Act’s legal issues and precedent will be
examined, the restriction of individual liberties and whether the restrictions
are unwarranted will be discussed, and the implications to which this Act
brings forth will be scrutinised.

 

The Investigatory Powers
Bill gained Royal Assent on the 29th November 2016, now known as the
Investigatory Powers Act 2016.12 In 2013, the extent to
which data was being used by the security services was revealed by Edward
Snowden who was a former CIA contractor releasing details of covert US mass
surveillance programmes, which further revealed that countries such as the UK
and other western locations also had similar programmes in place.3 Therefore, the IPA 2016
came about to serve as a purpose to consolidate the investigatory powers by law
enforcement, security, intelligence agencies and public authorities, clarifying
the use of powers and safeguards that apply to them.4 It specifies the retention
and acquisition of communications data, the interception of communications,
examination of bulk personal datasets, and equipment interference.5 The introduction to an Investigatory
Powers Judicial Commissioner has come into action who oversee, authorise and
rectify the use of these powers.6 This has created a ‘double-lock’
system for the use of warrants where both the Secretary of State and the
Investigatory Powers Judicial Commissioner must authorise and approve a
warrant, otherwise it will not come into force.7 The Act underwent
pre-legislative scrutiny by three committees: the Intelligence and Security
Committee of Parliament, the House of Commons Science and Technology Committee,
and by both Houses of Parliament.8 The government claims that
with an ever-growing digital society, law and power must catch up with the
digital age, and therefore the IPA 2016 restores the capabilities which have
been lost due to the change of communications among people.9 Though, from a legal
perspective, many questions and cases (Watson10 case) have arisen to
whether the IPA 2016 is an unwarranted restriction of individual liberties.

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The IPA 2016 allows
authorities such as GCHQ, the Secret Intelligence Service, Metropolitan Police
and many other bodies to access confidential information with a warrant.11 Areas to which the use of
warrants are required include: targeted interception warrants, targeted equipment
interference warrants, and bulk interception and acquisition warrants.12 Targeted interception
warrants target individuals, organisations or a particular premise to intercept
their communications and obtain secondary data.13 A targeted equipment
interference warrant allows the secure interference of any equipment for obtaining
communications, equipment data and any other information.14 As for the bulk
interception warrant, the main purpose of this warrant relates to either the
interception of overseas-related communications or again, the obtaining of
secondary data from communications.15 Bulk acquisition warrants
collect bulk metadata which show communication details like the name and time
of the communication, though it does not show the actual content displayed
within the communication.1617 The grounds to which
these warrants can be issued upon, fall under three main areas: national
security, detecting or preventing a serious crime, or the economic well-being
of the UK, and the above warrants possess an exception to where the approval by
the Investigatory Powers Judicial Commissioner is not required in such urgent
cases 1819. Multiple issues have therefore
arisen to whether the individual liberties of a person have been compromised
and infringed due to the IPA 2016.20

 

Firstly, the overall
terminology of the Act is seen to be very broad.  Privacy campaigners have argued that the
language within Act is so general, that government bodies ranging from the
Security Services to organisations such as the Food Standards Agency are
eligible to access the records of people even if they are not under suspicion
of criminal activity.21 Further, Apple has criticised that the term ‘telecommunications
providers’ is so broadly defined that it can intrude and reach beyond UK
borders to any service provider that has a connection to UK customers.22  To evaluate this further, an example could be
the issuing of a warrant to intercept communications, where the Home Secretary
believes that a warrant can be issued if found ‘necessary’ and ‘the conduct authorised
by the warrant is proportional to what is sought to be achieved by that
conduct’.23 This is sought to be in accordance to the Human
Rights Act 1998 and the European Convention on Human Rights (Article 8), where
a legitimate objective can be achieved even if it infringes the right, so long as
it is necessary within a democratic society.24 Therefore, it can be
viewed that the broad terminology of the Act grants intrusive powers to the
government, whilst only theoretically complying with the HRA 1998 and the ECHR.
An issue arising from this terminology could be for example, the definition of
‘serious crime’.25
The definition is wide, causing difficulty to draw a line to what the
criteria of a serious crime entails.26 The vagueness can therefore
risk those involved in irrelevant minor offences, placing them in a categorically
incorrect conviction and
therefore giving them a wrong conviction in such situations. Hence, it is vital
that the scope of necessity and proportionality must be tested
sufficiently to prevent the inappropriate use and abuse of power due to the
broad terminology of the IPA 2016.27

 

A conflicting issue is to
whether the IPA 2016 infringes the ECHR Article’s 8 and 10, which grants the right
to privacy and freedom of expression. Also with further consideration to whether
the creation of IPA 2016 was a neo democracy type of move rather than a democratically
approved decision by the people.2829 On one side of the
argument, there is the ongoing demand for transparency and increased privacy
for the people, and on the opposing side there is the pressure to ensure public
safety and security within the UK.30 The public debate of the
IPA 2016 is in constant dispute: where there is either a choice of dystopia
where people will be constantly recorded, monitored and analysed for their
every move, or a world where criminals can do whatever they want.3132 Both sides share the
common motive of fear, where the fear of technological change jeopardises what
they hold sacred.33 The European Court ruled
in November 2017 that the ‘general and indiscriminate retention’ of personal
communications data by security services and police cannot be ‘justified within
a democratic society’34. The executive director
of the Open Rights Group, Jim Killock also stated that the IPA 2016 is more
suited to a dictatorship than a democracy, and the UK has unprecedented powers
to analyse and monitor every UK citizens communications regardless of whether
they are suspected of criminal activity or not.35 In relation, Gearty
discusses this heavy struggle between liberty and security.36  Prior to the IPA 2016, collective deception
was utilised until Snowden exposed this, forcing the validation and creation of
the IPA 2016. Gearty states that there must be open justice, this means no neo
democracy, otherwise the term dictatorship may come into effect as Jim Killock
expresses.37
By incorporating human rights and the rule of law, democracy is kept honest and
human security is respected.38

 

Prior to the IPA 2016, between 2009-2014, internet service providers
were required to store communications data for 12 months in accordance to the
Data Retention (EC Directive) Regulations 2009 pursuant to the Data Retention
Directive.39 The Court
of Justice of the European Union decision in the Watson40
case explored whether legislation in the UK and Sweden imposed an obligation on
communication providers to retain location data and traffic, and whether it was
compatible with EU law. 41
The CJEU gave guidance upon national legislation that would be unlawful under
EU law.42
Firstly, the CJEU held that location and traffic data allowed very precise
conclusions to be drawn about the private lives of people, which included their
daily movements, everyday habits, their residence, daily activities and social
relationships.43 The
court stated that traffic data was intrusive, being no less sensitive that
communications content, and that legislation posing such interference was very
serious.44 Secondly,
the CJEU stated that targeted retention of data was justifiable when fighting a
serious crime only, and that the granting of access to data must be reviewed by
an independent authority or court.45
Regarding this, with the new IPA 2016 in place, many aspects of the Act do not
satisfy the CJEU’s criteria mentioned above. Firstly, the retention of data is
not limited to only ‘fighting a serious crime’, but has extended to: the economic
wellbeing of the UK, public health, in the interests of public safety, to
collect taxes, to prevent death, injury or damage to health, to assist in the
identification of a deceased person, financial stability, regulation of financial
markets etc.46 With
the broadness it now entails, this enables the retention of data to be much
more accessible to organisations. As well as that, a review of a warrant by a
Judicial Commissioner is not always needed in urgent cases, which can raise
major issues and implications, as there is no official body testing the
necessity and proportionality of the warrant. The Watson judgment therefore threatens
sections of the IPA 2016, creating a legal challenge for the controversial
piece of legislation.

 

The IPA 2016 will have implications for society. Particularly focusing
upon justice, an Investigatory Powers Tribunal has been created for any
problems relating specifically to the IPA 2016.47
Complaints are made either to the tribunal or through proceedings under the
Human Rights Act 1998, section 7 gives a right of action where a person wants
to claim that a public authority has acted in a way which is incompatible with
the convention rights enshrined in the HRA.48
With such a controversial Act in place, individual liberties have been abused,
and therefore it is only humane that justice can be served through the means of
a tribunal. If the tribunal finds that there has been a neglect of powers, then
it has the power to quash a warrant, ensure the destruction of any information
gathered, and award compensation.49
Though, due to the secret nature of interception, it is unlikely that a person
will be aware of what has happened, and therefore will not be able to complain,
and get justice for something they were not even aware of.50
Throughout the years, the number of complaints to the tribunal has increased
rapidly from 95 complaints in the tribunal’s first year of operation, to 251 complaints
in 2015.51 These
statistics suggest that people’s individual liberties are being restricted
without their permission, otherwise there would be less complaints. In
addition, the success rate of the tribunal is incredibly low with only 10 in
1,019 complaints being successful in the past five years.52
This may suggest negative implications, as to whether justice is being served
appropriately and fairly.53