The case for targeted surveillance

Posted by Silkie Carlo on 28 January 2016

Go back just a few years and it’s doubtful you or your friends expected you were being spied on – persons of interest just because you’re people. Of course, thanks to Snowden and subsequent legal challenges by Liberty and others, we now know all too well that secret surveillance of the entire population has been the status quo for over a decade.

The Draft Investigatory Powers Bill is a once-in-a-generation chance to finally shape our spying laws for the better – but the Government didn’t get the memo. As it stands the Bill will actually extend this mass snooping, leaving us less free and less safe.

Unlawful laws – an oxymoron of continental proportions

Liberty is fighting for a targeted system of surveillance, whereby only those reasonably under suspicion are monitored by the state. In fact, the alternative appears to be illegal.

In April 2014 the Court of Justice of the European Union declared that the EU Data Retention Directive was invalid. The Directive was struck down because it required the retention of every individual’s communications data, regardless of who they were, rather than being limited to what a judge assessed as being strictly necessary for fighting against serious crime.

The European Court of Human Rights has also recently published two judgments bolstering this decision. In both Zakharov v Russia and Szabo and Vissy v Hungary the Court ruled those respective laws unlawfully breach the claimants’ fundamental right to privacy because the surveillance is not limited to criminal suspects.

Fifty billion for the price of twenty

The Government is using the Draft Bill to legitimise what it now calls ‘bulk interception’ powers.

Use of these powers requires a warrant, but our private communications are no safer for it. Bulk warrants can authorise snooping on whole networks and even entire populations. It’s understood that the Agencies currently handle 50 billion communications each day – and in 2014 these interceptions were governed by just 20 warrants!

By its nature bulk collection is reckless and incapable of differentiating confidential correspondence.

This means, despite vague reassurances to the contrary from Ministers, that journalists, lawyers and MPs receive the same protection as everyone else – none.

It’s true that only “external communications” (outside the UK) can be intercepted in bulk. However, that phrase is now meaningless as the internet has rendered geographical distinctions irrelevant. An external communication actually occurs whenever any part of the action takes place overseas, like when a person uses a foreign email server such as Gmail or connects to Facebook.

If the warrant exists – and the evidence says it will – you will be spied on.

‘Targeted surveillance’ in name only

Even if bulk interception was axed from the Draft Bill, its ‘targeted’ powers simply act as an alternative means of suspicion-less surveillance.

The Bill widens the scope of targeted warrants from covering a single person or premises to groups carrying out a “particular activity”, or organisations or premises plural. So warrants can authorise the ‘targeted’ surveillance of people who aren’t even known to exist at the time.

Furthermore, these thematic warrants allow data gathered from bulk interception to be trawled for people conducting a “particular activity” who can then be subject to harsher ‘targeted’ surveillance. This could create many thousands of so-called targets – a far-cry from the suspicion-led measures necessary to protect our human rights.

“People die first”

So what do we get for this loss of privacy? Nothing.

There is no convincing evidence that mass surveillance is vital to save lives. The Government’s own argument is somewhat contradictory, involving scenarios based around known threats – which, absurdly, actually demonstrate the genuine targeted surveillance Liberty is calling for.

On the contrary, there’s a wealth of expert testimony suggesting mass surveillance actually makes us less safe. Dame Stella Rimington – former head of MI5 – has stated that, with too much information, Agencies “can't sort out from it what they need to know and what they don't need to know”. FBI whistleblower Coleen Rowley has said harvesting such huge quantities of data makes it harder to spot terrorists.

The result – says Bill Binney, former technical director of the National Security Agency (NSA) – “is that people die first, even if historic records sometimes can provide additional information about the killers”.

The case is simple – whether or not you have anything to hide, you stand to gain nothing and lose a lot.

Safe and Sound

The Investigatory Powers Bill will extend the already unacceptable practice of speculative mass surveillance, sacrificing everyone’s privacy while simultaneously putting us at further risk of harm.

There is another way. It involves creating a dynamic, targeted system with surveillance conducted only for tightly defined reasons, like investigating serious crime or preventing loss of life. Where communications data retention and interception warrants target individuals on the basis of suspicion.

But it is possible for the Government to keep us safe and protect our human rights. Sign Liberty’s Eight-Point Plan today – the more voices we have, the harder we are to ignore.

 

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Silkie Carlo

Silkie Carlo

Liberty
Senior Advocacy Officer