The Government conducted a consultation on its plans to which 54
organisations and 167 members of the public responded. Of the 221
submissions, 90 were in blanket opposition to the extension of the
state's surveillance powers to include more details of what use was
made of telecoms networks and when.
Of the remaining 131, just over a quarter said that they
believed Government safeguards were good enough to protect internet
users. Half said they were inadequate.
An interconnection facility that represents over 300 ISPs in
matters of public policy, Linx, has published its full submission
to the consultation. It says that the Government's proposal is not
an attempt to "maintain" surveillance capability but to massively
extend it, placing a burden on its members.
It also said that the proposed safeguards could not be said to
be adequate because even current safeguards are problematic.
"The government’s proposal to extend the collection of
communications data to incorporate so-called 'third-party' data
would result in collection which is unprecedented both in volume
and in the level of intrusion into personal privacy," said its
submission.
"We are concerned by the Home Office’s inability to collect
detailed information on the use of internet communications data
under the current regime. This means that the Home Office appears
to be unable to make an evidence-based assessment of the
proportionality of the current regime as it applies to internet
data (as it has turned out in practice), let alone to justify the
proposed extension," it said. "This suggests that existing
safeguards even for the current regime aren’t meeting even a basic
minimum standard of protection, in that the Home Office cannot be
sure of their proportionality in the round. Nothing in the current
proposals would correct that short-coming."
That submission said that the existing Regulation of
Investigatory Powers Act (RIPA) effectively strips individuals of
their right to protest against surveillance.
"The existing RIPA regime is also open to criticism that it
fails to provide adequate safeguards for the protection of
individuals," it said. "It relies significantly upon the
theoretical right of individuals to complain to the Regulatory
Powers Tribunal about abuse; however this right is a nullity, a
mere pretence and a sham, since individuals do not know when their
data has been accessed."
"The safeguards indicated within the new proposals appear to
constitute a continuation of the current, flawed safeguards, with
almost no additional protection," the Linx submission said.
One member of the public responded to the consultation by
saying: “I am deeply concerned that the government seems entirely
happy for RIPA to allow everyone from the police to local
authorities to access my communications data (everything from who I
phone to what websites I look at) without a warrant or any judicial
oversight”.
The non-profit organisation the Child Exploitation and Online
Protection Centre backed the Government's plans, though, and said
that its planned safeguards were sufficient.
Were additional levels of bureaucracy to be implemented, the
ability to access communications data in a timely operational
manner would be impeded and its value and use in investigations
reduced," it said in its submission.
The Government said in its summary of the consultation responses
that RIPA did contain enough protection of users' rights.
"RIPA contains strict safeguards which would make
disproportionate and unnecessary ‘fishing expeditions’ unlawful,"
it said. "These safeguards mean that only applications for
communications data which are related to specific investigations
involving specific data will be capable of satisfying the tests of
necessity, proportionality and legitimate aim. Broad enquiries
which amount to no more than fishing expeditions attempting to
uncover or predict crimes will fail the tests set out in RIPA and
will remain unlawful."
The Government said that further independent oversight of the
process would hinder its effectiveness.
"The value of independent oversight of the way in which public
authorities access communications data under RIPA is not in
question," it said. "The Government believes, however, that any
requirement for authorisation by magistrates in relation to all
acquisition of communications data could seriously impair the
effectiveness of the techniques in question without bringing any
real benefits in terms of protecting privacy."
"Magistrates are not best placed to apply the test of necessity
and proportionality because they are not familiar with the
operational parameters within which investigations are carried out.
Nor would a system of authorisation by magistrates be compatible
with the speed and flexibility which are frequently necessary to
ensure that these techniques can be used effectively," it said.
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