Surveillance and the individual – a move towards greater transparency

13 March 2015

Yesterday, the Parliamentary Intelligence and Security Committee published the results of its Inquiry into Privacy and Security. Work on the report “Privacy and Security: A modern and transparent legal framework” started in 2013 following the publication of material leaked to the media by Edward Snowden, the former US Intelligence contractor.

The committee’s report comes during the consultation period of the Home Office’s proposed update to the Interception of Communications Code of Practice (published pursuant to the Regulation of Investigatory Powers Act 2000, “RIPA”). Both illustrate how the exercise of, and limits to, state intrusion into an individual’s privacy are under scrutiny to an unprecedented extent.

The committee concludes that the existing range of intrusive capabilities is governed by an unnecessarily complicated and opaque legal framework. The complexity is an unsurprising consequence of piecemeal legislative attempts to reflect the evolution of intelligence-gathering techniques developed over decades (and longer) and in response to inexorable technological advances. The opacity is a legacy of the state’s historic reluctance to acknowledge publicly almost any aspect of the security and intelligence apparatus.

In order to simplify and demystify the current structure, the report’s main recommendation is to gather into a single Act of Parliament all legislation dealing with the intrusive surveillance powers of the security and intelligence agencies. The proposed statute would set out the procedures by which authorisation would be obtained for specified methods of surveillance, the limits on how the product of such surveillance could be used (and shared) and the safeguards intended to prevent abuse of the powers.

From a protection of privacy perspective, the prospect of a coherent, accessible framework which provides a means of challenging intrusive state action is obviously to be welcomed. However, any changes will not come immediately, and the report is on one view merely the basis for discussions which will take place during the course of the next parliament rather than any firm commitment to reform the current system.

A more imminent development is the revision to the RIPA Interception of Communications Code of Practice (and its new companion the Equipment Interference Code of Practice). While by no means as far-reaching as the Intelligence and Security Committee’s report, the consultation sets out the government’s commitment to make publicly available more information about the exercise of security and intelligence services’ powers and in particular the safeguards and oversight.

It is inescapable that the state requires the ability to address serious crime and threats to national security, and the very nature of such targets means that complete transparency is impossible and undesirable. Nevertheless, it is possible to detect a definite shift towards official recognition (beyond mere lip service) of a need to rebalance the relationship between the state and the individual with respect to how our personal information is treated. That can only be a good thing.

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