Opinion: We should be ashamed of these emergency surveillance powers

Fingers typing at keyboardIn April the European Court of Justice ruled that the UK’s regime of mass data retention was incompatible with the treaty on fundamental rights, particularly with article 8 that stipulates the right to private and family life, right to protection of personal data and the right to freedom of expression. This was a major victory for many Liberals, civil liberties advocates and privacy campaigners who have fought against the widespread blanket retention of innocent and law-abiding citizen’s data.

The ruling set out 10 principles that new legislation should adhere to. The government knew about this in April, yet now in July has announced emergency legislation on surveillance. Julian Huppert and other Liberal Democrats have been quick to claim this isn’t a ‘snooper’s charter’ and that the legislation simply reinstates the status quo with some additional safeguards thrown in – that sadly isn’t true.

If you read the new legislation then you will see that it only has six clauses. The first of these clauses grants the Home Secretary of state new powers to create ‘retention orders’ by means of statutory instruments. These retention orders could easily be used to bring in many of the aspects of the snooper’s charter (that thanks to members like Jenny Wood party policy now opposes). The legislation places very little restriction upon how these retention orders could be used, and certainly does nothing to ensure they will comply with the ECJ ruling. Put bluntly we would have to trust any future Home Secretary to use these powers wisely. That is no way in which is to place Liberal checks and balance on executive powers.

What this law does is give future Home Secretaries sweeping new powers to order telephone and internet companies to keep almost any sort of information about their uses. It covers some of the same ground as the ‘snoopers charter’, the controversial Communications Data Bill, dropped earlier in this parliament.

The party still holds the ace card – it could demand the new legislation complies with the European Court of Justice ruling. Instead Liberal Democrat ministers appear to have settled for a very minor change of RIPA legislation, a sunset clause and some other promises such as a review of RIPA that are not actually included in the legislation.

Liberal Democrats should oppose this bill, demand an end to blanket mass data retention and stand up for civil liberties.

* Cllr James Baker is the leader of Calderdale Liberal Democrats and the Campaigns and grassroots activism manager for the Open Rights Group.

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  • Kevin White 11th Jul '14 - 8:49am

    It was a very sad day yesterday to see a LibDem leader lining up with the forces of authoritarianism and state meddling. Disgraceful.

  • Keith Browning 11th Jul '14 - 8:58am

    It has taken nearly 200 years to achieve social justice and freedom for the ‘common’ man – and it is all being eroded in an instant.

  • Not done in April I suspect because it would have meant discussing ‘European Matters’ before the European election poll. Never mind that the court in question is not an EC institution.

  • Alex Macfie 11th Jul '14 - 9:36am

    The ECJ is an EU institution. It’s the ECHR that is not. Of course talking about European issues before the European election is exactly what we should have done.

  • Joe – do you think we should pass emergency legislation granting the Secretary of State to make new regulations which “make different provision for different purposes” (s.1(2)(e)?)

    That is what this legislation does.

  • Jonathan Pile 11th Jul '14 - 9:46am

    I suspect for a lot of Lib Dems this is precisely the kind of emergency enabling legislation we would be opposing strongly in opposition but are now appeasing in government. Sums up everything wrong with Clegg leadership – he says no to snoopers charter then signs up to this. A repeat of Tuition Fees. Nothing changes. A national scandal that this should have been pushed through without proper debate. The Party should stand up for a system which allows data to be held in layers of escrow and then accessed with proper judicial licence. Ironic that only David Davis and Tom Watson are defending freedom in 2014.

  • A Social Liberal 11th Jul '14 - 9:57am

    Well said James!

  • William Jones 11th Jul '14 - 10:08am

    We should congratulate Liberal Democrats like Julian Huppert and even Nick Clegg on gaining a justification, debate and concessions on this legislation that was going to be pushed through without justification or debate because of a cosy stitch up between the authoritarian Conservatives and Labour parties.

    I think the most worrying thing about this whole affair, is not the data retention bill itself, but the highlighting of the democratic deficit we have in the UK because of arcane parliamentry procedures that can create stitch ups like this.

  • Interesting that this dire emergency, and the panicky emails from party HQ, all came about more than three months after the ECJ ruling. And on the day when the news seemed set to be made by a goodly proportion the public sector going on strike.
    The Home Secretary will be able to change the rules more or less as she sees fit if this goes through, as Hywel points out above. I can’t believe there are Liberals prepared to defend such legislation, and particularly to defends it being rushed through in under a week.
    If we don’t stand up to defend liberty, what the hell is the point of being a liberal party?

  • “Hywel, the powers of secondary legislation probably are too wide – ”

    Good. So we agree this bill should not pass in its current form.

    “that seems to be the default position for all secondary legislation. But I’m not clear exactly what the worst possible secondary legislation under this bill would say.”

    My point exactly. No-one is clear what the worst possible secondary legislation would say because the power is so wide. A rapid passage of the bill doesn’t allow any exploration of how that power could be used and whether any further restrictions are passed.

    What this bill as draft will allow is a post 2015 majority government to pass regulations for the full “snoopers charter” and then use their majority to pass an affirmative resolution on those regulations (the last time such a resolution was defeated as AIUI 1969).

  • We all know the debates that will go on between authoritarians and civil libertarians over this. However I’m confused about the timing with all this. Why has this suddenly happened now? Why is it being passed through Parliament as if there is some kind of emergency? The government has had several months to deal with this. Yesterday was a good day for the government to bury the news, what with many children having to miss school and Gove being utterly toxic. Am I just cynical?

  • Charles Rothwell 11th Jul '14 - 11:25am

    I agree with G P Purnell and Jonathan Pile. To have Clegg standing next to Cameron fully endorsing all of this just a week or so after I had read how the ‘new strategy’ was to emphasise ‘liberalism’ within all the Party does and stands for was painful to say the least and I did not think Norman Baker did anything like an adequate job in explaining how the Party was now in this position on the ‘Daily Politics’ either (unlike Tom Watson who made it clear he thought it was nothing less than a complete stitch-up between the three party leaders at Westminster and even admitted that the whole thing had been so totally rushed he had not even had time to read all the documentation!) When Andrew Neil asked how many other MPs were against it, as Jonathan Piles says, Watson answered that so far it was him and David Davis! Combined with a complete lack of any comment by Party spokespeople I came across on the day of mass industrial action (the only opposition comment from a political party I saw was from an interview with the Green Party Leader in Trafalgar Square!) and the Daily MIrror’s comment had Clegg had now surrendered the very last vestiges of any liberal conscience on the altar of retaining power, I do not have the faintest idea how, with this kind of image, the Party can start to win back the people it needs to in order to reestablish itself as a credible party for next year! (Having a Leader like Farron (who, as Polly Toynbee points out in today’s ‘Guardian’ is virtually unique in having won over 50% of the votes in his constituency*) might be a good start, though!) (*So much for the calls from the Tory backwoodsmen after their sudden Damascene conversion to democratic enlightenment and calls for 51%+ approval of industrial action by eligible union members to vote! By the same criterion, you could forget most elections to Westminster and elections for the Mayor of London, even before beginning with local election and European Parliament turn-outs, let alone for Police and Crime Commissioners (15% top))

  • Paul in Wokingham 11th Jul '14 - 12:13pm

    I used to think that Clegg “talked the talk but didn’t walk the walk”. Now it appears he can’t talk tbe talk either. Everything I have heard is profoundly illiberal. A few vague promises to review RIPA is no counterbalance to a stitch up blatantly intended to avoid proper scrutiny of legislation that offers breathtaking discretionary power to the minister responsible. As others have sais – had this bee proposed by a Labour or Conservative government we would be – rightly – expressing outrage.

  • David Howarth 11th Jul '14 - 12:14pm

    All the Bill does is shift the legal debate from proceedings in which the government is certainly going to lose to ones in which it is probably going to lose. The government was definitely going to lose a judicial review case brought by various campaign groups in the UK courts against the current regulations simply because the regulations are based on a Directive declared by the CJEU to be invalid. What the government now faces are judicial reviews of the individual notices issued under the Bill on the basis that each of them is either disproportionate or unnecessary in domestic human rights law (rather than in EU law). Notices about email are probably disproportionate – all the examples of crime prevention or detection the PM gave were about phone data not email – but the phone ones are probably unnecessary, since phone companies keep data for commercial purposes anyway. They are all likely to be found to be disproportionate if they are not targeted on people involved in crime or whose data would help to catch actual or potential criminals.
    This does seem to be a somewhat pointless exercise – a ramshackle delaying tactic that will at best buy some time, and probably less time than the 2016 sunset implies. Presumably the Tories would love another ‘human rights’ row near the election, but why we are going along with it is baffling.

  • Stephen Campbell 11th Jul '14 - 12:19pm

    I voted Liberal Democrat since 2001. I was even a supporter of the coalition at first.

    But then you broke your pledge on tuition fees. Then you pushed through NHS “reforms” that the public didn’t want (and now the NHS is collapsing on your watch). You failed to convince the public to vote for AV. You’ve treated the disabled and unemployed like dirt. You sold off the Royal Mail to your rich mates in the City for at least a billion pounds less than it was worth. You support workers’ right to strike…except when they go on strike. You’ve brought in secret courts. Sanctions for the unemployed and tax cuts for the rich. And now you’ve sold us out again in this highly undemocratic move to allow the government to have frightening surveillance powers that would’ve made the KGB green with envy . “No more broken promises”, “the New Politics”, etc.

    But you got the Pupil Premium, huh? Well done.

    If ever there was a reason to pull out of the coalition on a deeply held principle, this is it. But you won’t. Clegg has shown time and again that principles are obviously for us little people. There is absolutely no reason for this party to exist any longer. There’s nothing liberal left of this party (and not much democracy, either). It’s a soulless husk whose only goal is power for the sake of power. Congratulations, you’re now just like the other two main parties.

  • matt (Bristol) 11th Jul '14 - 12:20pm

    I can see the logical process by which the leadership has arrived at this pass; I can also see that this country of all EU countries is more wedded to the EU Data Retention Directive than any other (as we initiated the whole process under Labour) – I can also see that what is in the letter of the law is not so much the issue as how it is being implemented. And I don’t entirely know how much I would go to the wall to oppose this legislation as I know little about what is in it.

    But, Mark Pack’s criticisms on his blog are telling.

    The leadership has not asked the membership about this issue when it knew there was relatively secret top-level negotation in process and they could have kept the issue live and the pressure on the other party leaderships by asking for targetted campaigning from us (it would also have worked in their favour by giving an issue of substance for us to get stuck into other than the debates about the leadership).

    The party would normally like to be seen as a voice against behind-the-scenes movements away from transparency like this, but our ability to campaign credibly on this issue at the next election is now impaired by the fact of our leadership’s participation.

    Did not somone say on here the other day that the Green voters we should be targetting are not those who used to vote LibDem but are now voting Green because LD and LAbour are not left wing enough, but those who used to vote LibDem but are now voting Green because Labour are not liberal enough?

    Just how badly does this event play in the eyes of that key opinion group for some marginal constituencies and council wards? Can we take a hit like that?

  • Stephen Campbell 11th Jul '14 - 12:37pm

    @matt (Bristol): “Did not somone say on here the other day that the Green voters we should be targetting are not those who used to vote LibDem but are now voting Green because LD and LAbour are not left wing enough, but those who used to vote LibDem but are now voting Green because Labour are not liberal enough?”

    I’m one of those. The Green Party is indeed, in my experience as a member of two years, far more democratic and liberal than the party which still has the cheek to call itself “Liberal Democrats”. Personally, I think you lot should be done under the trade descriptions act..

  • >If I were Google or Amazon, I would immediately cease trading in this country.

    Naturally. Why would you want to trade in a territory where you make billions but pay no tax? I expect they’ll shut up shop any moment now…

    If you do show symptoms of turning into a multinational tech corp, you should probably go to the doctors quick!

  • To me, the “profoundly illiberal” element in our society are the people that want to kill innocent citizen because they’ve got some point to prove, often religious. i suspect having government safeguards to protect us from these sorts of things have saved a lot of lives over the past decade, I don’t see what liberty is being increased by removing these safeguards. The right to be blown up? The right to not know if there’s a terrorist plot for your local school? What sort of liberty is that?

  • James Baker 11th Jul '14 - 2:14pm

    James Graham – Correct the ECJ ruling knocked out the 2006 Data Retention Directive. This is was put into law by means of a Statutory Instrument – The Data Retention (EC Directive) Regulations 2009. This Statutory Instrument only exist as an implementation of the directive. There is an ongoing judicial review that would have killed that SI on the basis of the ECJ ruling.

  • James Baker 11th Jul '14 - 2:18pm

    ChrisB – You’re making the classic assumption this data will only be used for serious crime and terrorism cases. If that were the case then the law ought to write in the grounds under which the Home Secretary can create a retention order.
    Instead of that Clause 1(3) of #DRIP is quite remarkable, it enables the government to make any new regulations re data retention at will. You could even argue Clause 1 (2) b goes beyond metadata about communications ‘require the retention of all data or any description of data’

  • Stephen Campbell 11th Jul '14 - 2:19pm


    Terrorism and people wanting to kill one another over their “god” or ideology has been with us since time immortal. The world is a dangerous place and always has been. The idea that we give up more liberty to protect ourselves from people who want to take away those liberties is, in my opinion, silly. We are all far more likely to be killed in an auto accident than by a terrorist bomb, but I see nobody calling for cars to be banned. As I’ve said before, maybe we should all have CCTV in our houses for the government to monitor us all. After all, it will keep us safe from terrorists and criminals, right?

    I’m sure the Soviet government genuinely thought their ability to spy on everyone when they wanted (as our government will soon have the power to do) was necessary to keep them safe from the “imperialist/capitalist” threat. In fact, I have a friend who grew up in the USSR and, believe it or not, he can confirm there were people who actually wanted the KGB around because they felt it kept them safe and millions of Soviet citizens were happy to give up liberties for safety. These things always start out under the guise of “protecting people” and “national security”. But they never stop there, do they?

    As my friend who grew up in the USSR said, “I’d rather die free than live under a surveillance state again.” He also added that the West is slowly becoming more and more like the USSR every day, at least in terms of authoritarianism and mass surveillance all under the guise of “keeping us safe”. I tend to trust the word of people who lived under totalitarianism and see is taking hold here, rather than people who would give up their privacy so they can feel more secure. Be careful what you wish for.

  • Richard Dean 11th Jul '14 - 2:38pm

    There appears to be a strong safeguard against abuse by a Home Secretary in relation to statutory instruments about data retention. Section (5) of Clause 2 states: “A statutory instrument containing regulations under section 1 is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

  • Stephen Campbell 11th Jul '14 - 2:46pm

    Terrorists and serious criminals will just go further underground and use heavier encryption. Therefore I can see these measures being used against normal people who the establishment does not like. We’re already seeing peaceful anti-fracking and anti-austerity campaigners being described by the police as “domestic extremists”. As I’ve pointed out before, the Lib Dems used to fight for major reform of our drug laws. How long until this bill is used to spy on people campaigning for sensible drug laws (if it isn’t happening already) or any other issue the government deems to be one of “national security”?

    Further, the goal of terrorism is to, well, terrorise a population and make them live in fear. You may obviously be living in fear, but I refuse to be afraid of these barbarians. And I wholeheartedly reject the notion that we must give up some of our freedoms, liberties and privacy (which were often won with blood) just because some people want us dead and hate our way of life.

  • Richard Dean 11th Jul '14 - 3:07pm

    “Terrorists and serious criminals will just go further underground and use heavier encryption”

    First, that’s speculation and unlikely to be true. Most wannabe terrorists like the majority of those who go to ISIS won’t have access to sophisticated encryption anyway.

    Second, every item of legislation generates attempts to get round it, so if we used that as a reason not to legislate we’d end up with no legislation at all, and a total win for terrorists.

  • Barry Norton 11th Jul '14 - 3:46pm

    “Most wannabe terrorists like the majority of those who go to ISIS won’t have access to sophisticated encryption anyway.”

    Is that a joke? Good encryption is easily available. ISIS wrote a mobile app, from what I heard. Anyone technically capable of that is capable of deploying strong encryption.

  • “The party still holds the ace card – it could demand the new legislation complies with”

    but it will not do so. Politicians lie is the only truth here

  • Richard Dean 11th Jul '14 - 6:28pm

    @Barry Norton
    GCHQ aren’t fools. The kind of encryption you are talking about is possibly rather easy for the technical experts at GCHQ to decrypt, in one way or the other. But, if you happen to be a wannabe terrorist, please continue to imagine otherwise!

    @Alex Marsh
    That shows that the affirmative resolution procedure works well – Ministers are clearly aware that having a proposed regulation rejected by one of the Houses will be highly embarrassing for them personally and for the government, so they make sure they don’t propose regulations that would not be accepted.

  • No, strong encryption is not easy for GCHQ

  • A Social Liberal 11th Jul '14 - 7:33pm

    Richard Dean said

    “CHQ aren’t fools. The kind of encryption you are talking about is possibly rather easy for the technical experts at GCHQ to decrypt, in one way or the other. But, if you happen to be a wannabe terrorist, please continue to imagine otherwise!”

    A very niaive statement which totally ignores the truth of the matter. Pretty Good Privacy was deemed so dangerous to the NSA that the US government deemed the encryption program a military munition and forbade its export. Needless to say the program was exported and now is in use around the world. Zimmerman (its creator) was charged by the US government with exporting munitions without a licence.

    Needless to say there are more powerful encryption programs created since the 1990s which are defeating the best efforts of our security services.

  • Richard Dean 11th Jul '14 - 7:34pm

    What a mysterious and interesting statement! How do you know?

  • Richard Dean 11th Jul '14 - 9:17pm

    @David Gould
    … and we all bow down in abject surrender of all critical faculties, and believe whatever Snowden says?

  • Richard Dean 11th Jul '14 - 9:38pm

    @A Social Liberal
    Your information about Phil Zimmermann does not agree with Wikipedia. Is Wikipedia wrong?

    I’m not sure that the encryption issue is relevant anyway. The preamble to the bill states that it’s about “communications data”. Isn’t this the “meta” data about who communicated with who when and how, rather than the actual contents of the message that was communicated? Sure, the contents can be encrypted, but is the meta data encrypted? The communication companies would be able to function if they didn’t know it!

  • Richard Dean 11th Jul '14 - 9:39pm

    would –> wouldn’t

  • David Howell 11th Jul '14 - 10:00pm

    Yes! You should be ashamed, as “liberals”, to put your name to such a far reaching piece of cobbled together legislation which in the hands of an unscrupulous government can be used to stifle honest debate.

    Oh hang on?

    What am I saying . . . We already have that government.

  • Paul In Wokingham 11th Jul '14 - 10:37pm

    Neither ASL nor Zimmerman are wrong.

    The meta-data is information such as “Alice is the sender and Bob is the recipient”. But knowing that Alice sent a message to Bob is not the same as knowing that the data is “Cafe Mozart 10pm”. Decrypting data encoded using public key cryptography (http://en.wikipedia.org/wiki/Public-key_cryptography) is essentially impossible using current computer technology as it depends upon factorization of primes – a paradigmatic example of the class of NP (very hard to solve) computer problems: http://en.wikipedia.org/wiki/Integer_factorization_problem#Current_state_of_the_art

    Before you say “but maybe they have a backdoor/secret code” the answer is no, they don’t. The only way of quickly solving these type of problems is to use a *theoretical* quantum computer (http://en.wikipedia.org/wiki/Quantum_computer#Relation_to_computational_complexity_theory). The NSA would dearly love to have one of those but they don’t exist. And even if there was a quantum computer you would simply abandon Public Key Cryptography and switch to a “one time pad” http://en.wikipedia.org/wiki/One-time_pad (which is truly random and so is completely immune to prime factorization technique) sent completely unencrypted using a quantum communication channel (http://en.wikipedia.org/wiki/Quantum_communication_channel) that would (as a consequence of the no-cloning theorem (http://en.wikipedia.org/wiki/No-cloning_theorem) automatically and invariably reveal any interception/tampering.

  • Richard Dean 11th Jul '14 - 11:48pm

    @Paul in Wokingham
    Ok, so if it’s just meta data, then encryption isn’t an issue in relation to the emergency legislation. The communication channel has to be able to decode address information in order to be able to send it to the right place.

  • James Baker 12th Jul '14 - 8:00am

    Richard as has been mentioned Statutory Instruments like those proposed in clause 1 of DRIP are hardly ever rejected. Also we would have to rely on the Tories and Labour to reject them!

    We ought to have written in the 10 principles set out by the ECJ ruling on the 8th April into the primary legislation. That would have allowed us surveillance powers that can tackle serious crime and terrorism, whilst protecting individuals against the misuse of surveillance powers.

    Not only have we blown a massive opportunity, but the parliamentary party has deceived members by claiming this law is a continuation of the status quo, and that it only seeks to reintroduce existing powers. That is categorically untrue as the actual retention orders set out in Clause 1 of DRIP will be made by future Home Secretaries via SIs and we have no one of knowing what form we will take other than they will have to be within the very broad scope allowed by this bill.

  • Why does the British government require more Stasi-like powers than the rest of the EU?
    Why would we want to trust these muppets who couldn’t even vett senior politicians or senior advisors when this requires zero surveillance. Unfortunately I think overly trusting Clegg has been led up the garden path again.

  • The European Court of Justice (ECJ) is very much a European Union (EU) institution. The ECJ struck down an EU data collection directive that the British goverment , along with others, was using as a convenient cover for its activities. There is no British goverment legislation that covers this particular area of data collection and so we, along with others such as Spain, are now going to have to come up with some. The question is how do we do that but end up in a place that Liberals are comfortable being in.

  • Paul In Wokingham 12th Jul '14 - 9:59am

    @Alistair – there is an interesting piece in this week’s New Scientist by Peter Neumann, professor of security studies at King’s College, London.

    He notes that of those who return from fighting in jihadist battlefronts, one in nine “returned [to their home countries] to perpetrate attacks on the west” (American Political Science Review, vol 107 p. 1).

    He also reports that about 500 UK nationals have gone to Syria to join ISIS, which is fewer than from Belgium or from Scandinavia. To your point – what are those governments doing?

    But those one in nine are significantly more competent and influential than “home-grown” extremists who have not had the same training, so attacks involving those with foreign jihadist experience are twice as deadly as those without. He suggests that mandatory prison sentences for returning jihadists is counterproductive except in the case of the most committed jihadists, as it hardens attitudes but does nothing to combat extremist ideology.`His proposal is messaging: e.g. targeted information such as the fact that 15 UK nationals fighting in Syria have been killed by other rebels, only one has been killed fighting Assad’s forces; or that ISIS only see them as cannon fodder.

  • Paul, We should change the law to make wiretap evidence admissible for terrorist offences. And we should recognise that while we worry about Jihadis getting an education abroad, Britain is the place where young Assads and Gaddafis get an education before returning home to lay waste.

  • Was Alec Salmond invited for his input coz surely he has a lot more claim to political power than Ed Miliband and also more actual power than Nick Clegg.. He is after all the head of a parliament,

  • >the parliamentary party has deceived members by claiming this law is a
    >continuation of the status quo, and that it only seeks to reintroduce existing powers

    I rather naively thought Lib Dem MPs would have learnt their lesson by now, and believed what Nick and Julian were saying! As someone that’s been saying “you can’t trust Huppert regarding tech” for a while I feel a bit foolish. Well, I read it and it just seems like it was written on the back of a fag packet, quickly. It’s not a real bill, in as much as all the substance is assumed to be tacked on later. I still don’t suspect that anything particularly bad will come from it, the likelihood of a home secretary suddenly turning into the stasi/kgb/etc seems unlikely, but it’s pretty terrible legislation nonetheless.

    Whilst I’m not against state survellience per se, I think James has won me over. The more I look into the facts, the more I realise this is another classic government tech disaster area. The party would be better off opposing, or at least trying to close the obvious loopholes (I’m not sure what would be left, it’s one big loophole).

    Non-members step into the debate to defend Lib Dem MP actions, Lib Dems step up in force to tell you why you’re completely wrong to trust the parliamentary party! On closer inspection, they’re right – it’s all become quite confusing.

  • Richard Dean 12th Jul '14 - 2:35pm

    @James Baker
    As has also been mentioned, the history of statutory instruments is that they keep ministers well in check: ministers avoid proposing things in this context that they know parliament will reject. That gives proper democratic control, rather than the anti-democratic “LibDem rules ok?” approach implied by “we would have to rely on the Tories and Labour to reject them”

    No need for gold-plating the 10 principles. The ECJ ruling means they are part of our law anyway. All laws refer to the future; retro-active laws are against good legal principles.

  • Is there any sign that Clegg will listen to the objections?

  • It’s only LD members objecting, and it’s apparent how much he listens to them!

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