Liberty response
"... A significant step forward for the protection of human rights in this country ... We are trying actively to ensure that our system protects individuals' convention rights, while recognising how vital such investigatory powers are to the protection of society as a whole. Striking the right balance in this area is an important responsibility of Government, and of the Home Office in particular". Then-Home Secretary Jack Straw, Parliamentary debate on the Regulation of Investigatory Powers Bill, March 2000.

Unfortunately, a balance questionably weighted in the original Act is tipped much further away from the protection of innocent people's rights to privacy by the proposed extension of communications access powers due in Parliament on Tuesday (18th June). Disproportionate and unfettered access to vastly more personal data is the most likely consequence of extending these powers to a number of government departments, all local authorities and a raft of other public bodies.

The powers, contained in the Regulation of Investigatory Powers Act 2000 (RIPA), can force Internet service providers, phone companies and postal service operators to an over detailed information on those who use their services. These powers are already exercised by the Police, intelligence services, Customs and Excise and the Inland Revenue and do not require authorisation by an independent or judicial body.

The justification that the Government has used to defend intrusion powers under RIPA and the Anti-terrorism, Crime and Security Act is that they are designed to combat serious crime, especially terrorism. The new list is wholly irrelevant to this stated aim: it is difficult to see giving communications access powers to bodies such as the Food Standards Agency, Consignia or New Forest District Council will achieve this.

The government has argued that there are safeguards in place to prevent abuse. However these 'safeguards' will allow information to be sought : "if it is judged to be necessary in the interests of national security;

- for the purpose of preventing or detecting crime or preventing disorder;
- or in the interests of the economic wellbeing of the UK;
- if it is in the interests of public safety, or for the purpose of protecting public health;
- or for the purpose of assessing or collecting any tax, duty or levy payable to a government department;
- or for the purpose in an emergency of preventing death or injury, any damage to a person's physical or mental health;
- or mitigating any injury or damage to a person's physical or mental health."

The list in the RIP Act itself list ends with a final clause apparently omitted from this week's ministerial briefings: "for any purpose [not listed above] ... which is specified for the purposes of this subsection by an order made by the Secretary of State".
Given such a range of permissible activities it is difficult to think of a situation where interception powers would not be available.

The Government has also stressed that the regulatory powers of the Interception of Communications Commissioner will provide a counterbalance to the RIPA powers. The Interception of Communications Commissioner's report of October 2001 (which also highlights "significant" numbers of errors by the Security Services in phone-tapping innocent people) notes that his four-strong staff already faces a large increase in workload once Chapter 2 of part 1 of RIPA comes into force. The report and its concerns predate this plan, which would increase vastly the burden on the Commissioner's office.

More problematically, the Commissioner still only reviews the use of powers - these authorities do not have to seek authorisation from the Commissioner for accessing communications data. That authorisation need only come internally, from an official at a level designated by the Home Secretary within the department seeking the data access.
The Commissioner will thus be viewing the use of these powers retrospectively. While ministers have been conspicuously reluctant to give any idea of the likely scale of use of these powers, a Home Office briefing dated January 2002 notes that - before RIPA - Customs & Excise alone made 18,000 requests for communications data in the first quarter of 1998.

It is also questionable how effective the Investigatory Powers Tribunal (which was created by RIPA to deal with complaints about unlawful or unwarranted abuse of surveillance powers) can be. If you are not aware that you are being subjected to surveillance then how do you know to complain?

Even if you do make an application to the tribunal it is not open to the complainant, there is no public hearing and no reason given if the complaint fails. Furthermore RIPA specifically excludes access to the High Court to test the legality of decisions made by the tribunal.

The need for safeguards
If there is to be an extension of surveillance powers to a myriad of new bodies, the most adequate and practical safeguard must be to require a judicial warrant for access to communications data.

Authorities seeking this highly personal information should have to persuade an independent judge that they have reasonable suspicion that someone is committing a crime before they are given a warrant to access to records.
The list of authorities empowered to seek access should also be restricted to those that have a clear and significant role in criminal investigation.