The Conservatives have made a clear offer to the public: they are saying that they will, if elected, revive plans for the Snooper’s Charter. Massive data gathering and analysis of your online habits would become available to the police and a range of public bodies. Powers that are currently being challenged in the courts, but are in practice available to GCHQ under programmes like TEMPORA, would become an everyday policing tool.
Theresa May said:
… because the way in which we communicate is increasingly online, our ability to obtain the data we need is declining rapidly and dangerously. Over a six-month period, the National Crime Agency estimates that it had to drop at least twenty cases as a result of missing communications data. Thirteen of these were threat-to-life cases, in which a child was judged to be at risk of imminent harm. In a three-month period, the Metropolitan Police had to drop twelve cases because communications data was not available. These cases included sexual offences and potential threat-to-life scenarios relating to a suicide threat and a kidnap.
The solution to this crisis of national security was the Communications Data Bill. But two years ago, it was torpedoed by the Liberal Democrats. I’m told that the Lib Dems now tell the newspapers that “they might have to give ground on surveillance powers in a future coalition agreement”. But they also say that they have “no intention of allowing changes before the general election”. This is outrageously irresponsible, because innocent people are in danger right now. If we do not act, we risk sleepwalking into a society in which crime can no longer be investigated and terrorists can plot their murderous schemes undisrupted. We have to give the police and the security services the powers they need to keep us safe. And that is what the next Conservative government will do.
To anyone paying attention to the post-Snowden debate, this is a remarkable suggestion. Rather than promising greater oversight, democratic control, or judicial supervision, in order to justify maintenance of already-existing population-wide data trawls, the response of the Conservative Party appears to be to roll out the same powers to an ever-wider group of people and purposes. They justify this, they say, as a power against terror plots: but that argument has been busted long ago. Not only are these technologies remarkably lacking in results, according to the NSA’s own evidence, but they are already available today to terrorism investigators.
While these surveillance capabilities exist, it is less clear if they are legal and justifiable. We need to be able to trust that capabilities are limited to what is necessary to protect us. This makes any programme for mass data gathering highly dubious, as everyone is treated as a suspect on the off chance. Capabilities that are targeted at suspects are much easier to justify, understand and trust.
Sweeping up data for mass analytics and population profiling is being legally challenge by a number of campaigning groups that care about privacy. We are challenging the legal framework, alongside English Pen, Big Brother Watch and Constanze Kurz. Privacy International are challenging attempts to undermine encryption standards. Liberty are challenging as they believe they have been placed under surveillance; MPs Tom Watson and David Davis are challenging the legal basis of UK data retention, with ORG intervening in support. Caroline Lucas and Jenny Jones are challenging the fact that MPs data is not protected and confidential, and the Bureau of Investigative Journalism is making the same argument about journalists seeking to protect their sources. There are other legal challenges too.
Before they start passing new laws that further violate our right to privacy, we would expect any sensible government to wait for the outcomes of these challenges to see whether our current laws already exceed human rights laws. However, as we found in the DRIP (data retention) debate, the government is not really interested in that. As the Conservatives are now saying, they in any case believe that human rights challenges are getting in the way of doing what they want.
When they make the case for repealing the Human Rights Act and limiting our commitments to Winston Churchill’s European Court of Human Rights, at ORG we remember that it is these commitments that are providing the only defence against mass surveillance, whether transparent, such as #DRIP, or secret, such as TEMPORA. The trivial, often non-examples trotted out to justify reneging on human rights look very much like a fig leaf for the removal of serious protections getting in the way of Home Office programmes ranging from DNA databases, through identity databases, to mass surveillance.
Still, no matter how extreme Theresa May’s views are, she has at least been honest enough to tell the public that a Conservative majority government will head further down the track of building the UK surveillance state. Will the Labour Party and Liberal Democrats do the same? Will the Lib Dems truly “concede” changes to surveillance laws after the election? Just as importantly, will principled Conservative MPs attempt to distance themselves from May’s speech?
Both the Lib Dems and Labour have called for a debate: Theresa May and David Cameron have launched it, as part of their election programme. How will politicians of all parties respond? We've always said that the public need to be have their say in whether their rights to privacy and free speech are infringed in the name of mass surveillance. We will do everything we can to make sure that we get the opportunity to do this at the next year's general election.