The UK Government’s mass surveillance regime has been dealt a potentially fatal blow after Appeal Court judges ruled it illegal.
While the case in question related to previous legislation, the precedent it sets means that changes to the UK’s Investigatory Powers Act, more commonly known as the Snoopers Charter, appear to be inevitable.
DRIPA ruled unlawful
The case in question relates to a piece of legislation called the Data Retention and Investigatory Powers Act (DRIPA). DRIPA was passed back in 2014 and was the very definition of kneejerk law-making. It was given just a single day of Parliamentary debate before being voted into law. It is therefore perhaps inevitable that it was riddled with errors and problems.
DRIPA has since been largely surpassed by the Snoopers Charter which came into law last year. But this piece of legislation primarily built new powers onto DRIPA rather than reviewing and improving it. Which is why this new court ruling is so important.
The case was brought by Labour Party Deputy Leader Tom Watson and prominent British Human Rights campaign group Liberty. It was initially also supported by David Davis MP, a prominent civil liberties campaigner, but he took his name off the case when he was appointed as Brexit Secretary.
Their challenge argued that some of the powers contained in DRIPA were against EU law because there was insufficient oversight for powers such as the retention of private phone, email, and web browsing records relating to serious crimes.
They claimed that there was little to stop law enforcement bodies and a sizable list of other public bodies from accessing this data without any protections to the privacy of innocent people being in place.
The Appeal Court Judges agreed. They stated that the absence of these safeguards, specifically “prior review by a court or independent administrative authority” meant that DRIPA was inconsistent with EU law.
However, they did not pass a ruling on another issue raised in the case, that of more rigorous safeguards for more general bulk data retention, as a case on that matter is currently before the European Court of Justice and due to be heard later this month.
A ‘crystal clear’ message to the UK Government
According to the director of Liberty, Martha Spurrier, the meaning of this ruling is clear. “Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful. This judgement tells ministers in crystal clear terms that they are breaching the public’s human rights.”
Tom Watson was even more bullish in stating what legislative action he believes the UK Government now has to take. “The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data.”
Such changes appear to be inevitable, but the Home Office has already taken some steps to introduce additional safeguards in anticipation of losing this case.
In November, they introduced various changes including removing the right of senior police officers to grant themselves authorisation to view such data and grating oversight over access to confidential communications to the new Investigatory Powers Commissioner.
However, these changes have been dismissed by Tom Watson and others as ‘half-baked’ and there will be significant pressure for more meaningful changes to be introduced to the Snoopers Charter as soon as possible.
Mass surveillance now needed to catch paedophiles
Inevitably the Government has attempted yet again to defends its mass surveillance and bulk data retention policies. But they have rather interestingly changed their message.
While previously, they would always hammer home the idea that it was needed to catch terrorist suspects, they have now switched focus to paedophiles.
Junior Home Office Minister Ben Wallace said Communications Data was needed to tackle serious and organised crime and “is often the only way to identify paedophiles involved in online child abuse as it can be used to find where and when these horrendous crimes have taken place.”
The reason for this change of stance is unknown. It could be that the UK has suffered three terrorist attacks since the Snoopers Charter came into force, while at the same time there is no concrete evidence that mass data retention has stopped any terrorist activity.
As a result, it would make sense for the Government to shift their rhetoric onto another crime which rightly appals the public and so is likely to persuade them to want to give up their rights too.
Whatever stance the Government tries to take to defend the regime though, the court’s ruling is indeed clear, and changes will now need to be made. However, their intransigence appears to suggest that they will put up more of a fight before the British people’s right to privacy can be at least partially restored.
So, for now, the UK continues to have what Edward Snowden famously described as “the most extreme surveillance in the history of western democracy.” Which is why VPNs continue to be an essential tool for every British internet user who values their privacy and why VPN use in the UK continues to grow.