The RUSI review offers few surprises, and has turned out to be less a trailblazer, and more an indication of what the security establishment believes the agencies might accept.
Their Panel included three former senior security staff, and RUSI are themselves very close to the UK’s defence and security apparatus. Thus the tone of the report was always likely to address the concerns of GCHQ and the Foreign Office before those of civil society. Martha Lane Fox, Ian Walden and Heather Brooke will have had a tough job to help produce a relatively balanced report that does at least go some way to address wider concerns.
RUSI follows reports from the Independent Reviewer of Terrorism Legislation, David Anderson, and the Intelligence and Security Committee, so makes reference to many of their ideas. The RUSI report does less well than Anderson Report in one very key regard: it does not set out the need for human rights courts to set the boundary between “bulk collection” and “mass surveillance”. It is hard to say that bulk collection should never take place (it might sometime be necessary and proportionate) but it will rarely happen in isolation. Combined with processing and profiling, it is hard to see GCHQ’s activities as anything other than mass surveillance.
The reason that all of the reports have strained to avoid calling out the government on mass surveillance comes in two parts. Firstly, the ISC, Anderson and RUSI are to different extents insider voices. Anderson has been the most independent and critical, but is playing the role of a reviewer, not a human rights court. He has maximised his ability to make constructive criticism, and advance sound ideas of reform, but stepped back from making the most serious challenges, leaving this question to higher powers, in the form of the courts. The ISC published a report which mixes justifications with good ideas for change, but is less critical than Anderson. RUSI falls somewhere between the two.
The important thing to note is that consensus is emerging on many areas, especially around the need for much stronger oversight and clearer laws. All the reports focused on the need to rewrite RIPA, as essentially incomprehensible. Anderson and RUSI talk about merging the fractured Commissioners to ensure that their role is strengthened. All three want better means for individuals to seek redress through the Investigatory Powers Tribunal and to appeal if it rules against them.
Anderson opened up the call for judicial warrants for interception, and RUSI has come some way to accepting this idea. Both RUSI and Anderson back the idea of international treaties to govern data requests (called Mutual Legal Assistance Treaties, or MLATs) as a key mechanism for gaining access to material needed in investigations.
RUSI is silent on the question of new powers of bulk collection and analysis that we are expecting to be proposed for the police in the proposed Investigatory Powers Bill this Autumn. RUSI focuses on technical oversight and improving national police strategy and training.
Theresa May however has indicated she wants the powers she was denied when the Snoopers’ Charter, or Communications Data Bill was dropped. The ISC stopped short of demanding these powers in their report, and Anderson said that any such capabilities needed to be preceded by a clear operational case, which he had not seen. However, after the recent atrocities in Tunisia, the Home Office will likely sense an opportunity to push Labour towards a consensus for new powers, even if they are entirely unrelated and unlikely to help. Labour should simply apply the tests that Anderson has placed in front of them: what problem are the capabilities actually supposed to be dealing with and at what cost?
RUSI’s report no longer has the political clout stemming from its original association with Nick Clegg as Deputy Prime Minister. The benchmark for reform is the Anderson report, as it was commissioned through Parliament, and Labour claim it as their concession for backing the emergency DRIP bill. If we expect the government to seek cross party consensus, then we should be looking to Anderson to persuade Labour and independent-minded Conservatives of the kinds of change they should be looking for.