The Independent View: Obscure powers secretly used to hoover up our data

 

If the question relates to section 94 of the Telecommunications Act, then I am afraid I can neither confirm nor deny any issues in relation to the utilisation or otherwise of section 94 (James Brokenshire, 18.3.2014)

As an MP, Julian Huppert spent considerable time pushing for information about the ‘astonishingly broad power’ of clause 94 of the Telecommunications Act 1984, a clause which enables the Government to require telecommunications providers to cooperate with them in very broad terms. He tried to find out how often these extra ordinary powers were used and who, if anyone, was checking they were being used appropriate. He got nowhere.

As a result of litigation brought by Privacy International, the staggering use of this power has been exposed. Huppert’s suspicions were on track – GCHQ and MI5 have used section 94 to collect our data in bulk. They have been using these powers for 19 years in total secret, without even the Intelligence and Security Committee of Parliament having any knowledge of the use of Bulk Communications Data, or that section 94(1) was being (ab)used.

The Intelligence Agencies Response to litigation admits:

(a) GCHQ has acquired Bulk Communications Data by means of a number of section 94 directions. Two such directions were made in the period 1998 – 1999, both of which were cancelled in 2001. All other such directions have been made since 2001.

(b) The Security Service has acquired Bulk Communications Data by means of a number of section 94 directions. The earliest of these directions was made in 2005.

The Intelligence Agencies assert that ‘the use of the power in this way was plainly within the contemplation of Parliament’. However, as pointed out by Huppert, the provision was “So well tucked away (in the miscellaneous provisions) [of the 1984 Act] that it was never even debated in Parliament.”

The Intelligence Agencies continue to rely on section 94(1) and ‘directions given by the Secretary of State’ to the current day. These directions are general, surrounded by secrecy, not time bound and not reviewed independently. We do not know how many section 94 directions have been made, how many have been cancelled, what data is stored, what it is used for and if the data is ever deleted.

Safeguards and oversight are distinctly lacking. David Anderson QC, in A Question of Trust, states:

6.17 … s94… is very broad in nature and imposes no limit on the kinds of direction that may be given. There is nothing in the public domain concerning the use of that power and the exercise of the s94 power is not subject to any oversight or external supervision.

Conclusion

For the past year the Intelligence Agencies have been congratulated on coming clean. These recent revelations show that there is potential that many activities and legal regimes remain in the shadows. Far from congratulating them we need them to reveal what else they’ve not been telling us.

For more on the section 94 read Privacy International’s blog.

All documents disclosed in Privacy International’s litigation can be found here.

 

* Millie Graham Wood is a legal officer at Privacy International.

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5 Comments

  • Eddie Sammon 25th Apr '16 - 4:16pm

    You have a good point about the lack of generally unknown powers of the surveillance services, but I do wonder whether the Lib Dems are as keen on privacy as the party makes out.

    When it comes to rich people’s finances or Tories in sex scandals concern about privacy often goes out the window and it seems the press think it should be free to look at anyone’s private information as long as someone leaks it to them. Not massively different to phone hacking – but now private information is obtained via leaking.

  • A fundamental issue here is that the powers that the security services enjoy are not theirs by right. They are (or more correctly should be) a privilege granted by the people via parliament.

    For people to grant these powers they first have to consent to them. And to consent, they must first know what they are, how they will be used and how abuse will be prevented.

    The security services have appropriated considerable and intrusive powers in secret, with minimal oversight by parliament, and without the informed consent of the people.

    Such powers are fundamentally illegitimate.

  • @Nick Baird – Unfortunately, the powers the security services enjoy, being discussed above, were granted to them by Parliament specifically by clause 94 of the Telecommunications Act 1984. The blame for Parliament’s failure to properly scrutinise legislation, lays with Parliament and not the security services; even though the security services are the ones who benefited.

    To explicitly address the consent issue you raise is part of the rationale for the Investigative Powers Bill currently before Parliament; whether it succeeds or not, is wholly dependent upon the will of Parliament to do their job and properly scrutinise the bill. Whilst I think the Lords (and others) have done a good job on the draft bill, we wait to see whether they are able to perform a similar task on the full bill and whether they can prevail and get the amendments they demand incorporated into the final act.

  • @Roland – I don’t think any of us in 1984 gave informed consent to having our electronic communications data monitored and stored in bulk. No-one outside of academia or the US military had even heard of the internet in those days (and it probably wasn’t even called the internet).

    Legislation clearly aimed at analogue voice calls and faxes has been taken and stretched by the security services to cover email, web browsing, IMs etc, and the Government committees that were supposed to be regulating them let them get away with it.

    But yes, the Investigatory Powers Bill is the one (and only) opportunity to sort this all out. I’m not optimistic, as the bill presented for the first reading seemed to ignore almost all of the concerns raised at the draft stage.

  • @Nick – I think we are in agreement, Parliament has had the opportunity in the past to revisit the 1984 Act, but chose not to until now.

    Like you I’m trying hard to be optimistic over the IPB, unfortunately it is not helped by the government deliberately(?) restricting debate and those who don’t bother to get themselves informed and simply refer to the IPB as the ‘snoopers charter’ and should be opposed – little realising that if the IPB doesn’t make it on to the statute book, the 1984 Act (and others) will continue to prevail…

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