Author: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International)

In Part I of this blog I examined four of the most troubling elements of the new Investigatory Powers Act and their compatibility with IHRL. It is, however, important to note that the IPA is only one of several electronic communications surveillance laws that have been adopted in recent years, or are currently undergoing legislative processes, across Europe (one can particularly note adopted or pending legislation in Germany, France, Poland, Italy, Austria, Romania, Belgium, and Spain, to name a few examples). In this blog post, I suggest we look at the broader implications of the IPA on the landscape of regulation of espionage in international law.

Tinker, Tailor, Hacker, Spy: The IPA and the Law on Espionage

In his recent autobiography, The Pigeon Tunnel, John le Carré laments about the “British public’s collective submission to wholesale surveillance of dubious legality”. He argues that this type of concerted wilful surrender is the “envy of every spook in the free and unfree world”. Rarely do I find myself disagreeing with le Carré, but this is one of those cases. It is not just the British, but rather the general public, worldwide, that is supportive at worst or apathetic at best to the real prospect of a 1984-type Big Brother global surveillance scheme. The revelations surrounding the British American surveillance programs, as part of their successful collaboration within the broader 5-Eyes Intelligence Alliance, have clearly had ripple effects around the world.

These ripples are causing tectonic shifts within the “law on espionage”, as a distinct body of lex lata rules within the jus gentium. If in 2007 Prof. Radsan had recommended that Academia simply succumb to the idea that “espionage is beyond the law”, the last decade of political and legal developments are pushing away from this policy position. Both the advancements in technological capacities and the prevalence of leaks and whistleblowing, have forced parliaments, courts, academics, and the media, to face the spooks head on in a way they have never done before. As the activities of intelligence agencies, once draped with a cloak of secrecy, are moving further and further into the light, customary international law (dependent by its very nature on state practice to emerge) is slowly beginning to take shape.

We should thus look at the IPA not only from the narrow perspective of UK law, European law, or even international human rights law, but rather embark on an understanding of the broader role this Act plays in the evolution of the Law on Espionage. In this regard, let me conclude with three short brief comments.

1. The Right to Spy (The Jus Ad Explorationem)– I have written elsewhere that espionage should be recognized as a sovereign right under international law. There is room to suggest that the same processes and justifications that have limited the right to use force in the early 20^th century are now taking shape to limit certain aspects of the right to spy. In that regard particular emphasis has been given to economic espionage. In 2015 the United States and China reached a “common understanding” not to conduct or support cyber espionage and intellectual property theft for the purposes of commercial gain. Similarly, Germany legislated a prohibition on “economic espionage” as part of its October 2016 “Communications Intelligence Gathering Act”. According to wikileaks, Hilary Clinton’s Campaign Manager John Pdesta, in a policy brief on U.S.-German Surveillance relations concluded that “If Germany were to propose to the US a bilateral engagement to prohibit industrial espionage as the starting point for multi-lateral agreements or standards, the response from Washington would likely be positive.” In this regard how should we interpret the IPA which allows for foreign surveillance for the protection of the “economic well-being of the United Kingdom” or the French legislation which maintains that foreign surveillance may be conducted to advance the “economic, industrial, and scientific interests of France”. These pieces of legislation are exposing different approaches as to the justifications for the right to spy, and its limitations.
2. Intelligence Sharing– As part of the IPA the U.K. had the opportunity to engage in statutory authorization of its intelligence sharing arrangements with foreign agencies, which it declined to do. The Equivalent German law which was adopted two months before the IPA, did include, in a precedential way, three provisions authorizing and limiting certain aspects of German intelligence sharing operations. The pending 10 Human Rights NGOs Case, calls on the ECtHR to establish that the principle of legality requires States to establish the powers to engage in intelligence sharing as part of accessible and foreseeable primary legislation. This is important as significant abuse can take place in the form of “circular exchanges” that is a circumvention of domestic legislation through direct access to data bases or intelligence collaboration with foreign agencies. As Professor Forcese described it in the context of certain accusations that were made about the ECHELON program as early as the late 90s: “Since privacy laws tend to restrict states’ ability to monitor their own citizens but not those located in other countries, each state’s agency allegedly was asked to spy on the other state’s citizens and, presumably, share the results”.
3. Extraterritorial Enforcement Jurisdiction in International law– In conducting cross border interception and hacking activities, Government authorities are breaking away from one of the oldest tenants of international law, the presumption against extraterritorial enforcement jurisdiction. As the U.S. Third Restatement of Foreign Relations (1987) clarifies: “A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state”. Indeed, as early as the SS Lotus Case it was established that the enforcement jurisdiction of States to investigate, prosecute, or apprehend an offender extraterritorially is limited by the territorial sovereignty of the foreign State. Whereas the sending of spies across borders was generally perceived as a tolerable violation of the enforcement jurisdiction principle, within the broader operational code of the law on espionage, the introduction of mass electronic surveillance capabilities are tilting the scales. If in the old world order we put up with, as a necessary evil, the naturally limited intrusions of human spies, a different balance must be struck now once we developed the capacity to surveil whole populations remotely and covertly. Current state practice, as reflected in the IPA, is pushing in the other direction, however, and it becoming more normal to engage in unfettered mass global surveillance with few restrictions and few raised eyebrows. This should keep up anyone who dreads for the future of the rule of law and the right to privacy and freedom of expression.

 

Author: Daniella Lock (PhD student at UCL Faculty of Laws). The original post was published on Just Security on 30 November 2016. 

What was formerly known as the Investigatory Powers Bill, referred to elsewhere as the “revised Snoopers’ Charter,” has received Royal Assent and, as of Nov. 29, is officially law in the UK. The Act (full text here) does introduce additional safeguards, as well as a new body of oversight and the involvement of judges in the authorization of surveillance warrants. However, the broad range of surveillance powers available to the British Government, which were exposed by the Snowden leaks, have not been scaled back but further entrenched within British law. This is despite consistent pleas to reduce the powers by parliamentarians, legal practitioners and legal NGOs, and amendments having been made to the Act by both Houses of Parliament.

The Not So New Powers 

The government’s powers exposed by the Snowden leaks were the subject of widespread fear and shock, and they will be further consolidated by this new legislation. The surveillance powers that the Act will now explicitly enshrine in law include: targeted and bulk hacking powers; bulk interception of communications (provided for under the previous UK surveillance regime); access to bulk personal datasets (BPDs); and the acquisition of communications data, both targeted and bulk, which involves the retention of web history logs (known as “Internet Connection Records”). The Act also provides for the use of thematic warrants in relation to targeted surveillance powers. These warrants, equated with general warrants in a previous Just Security post by Scarlet Kim, have the potential to be very broad in scope and may be used against “a group of persons who share a common purpose or who carry on, or may carry on a particular activity.”

All of these far-reaching surveillance powers existed in one form or other prior to the Act. However, many of them were only avowed by the UK Government in the aftermath of the Snowden leaks. For example, engagement in the bulk acquisition of communications data by the security services was first admitted in November 2015, when the then-Home Secretary, Theresa May, informed Parliament that communications data was being obtained in bulk from Communication Service Providers under the authority of the Telecommunications Act 1984. The use of hacking powers was acknowledged by the UK government through the publication of the Draft Equipment Interference Code of Practicepublished in February 2015 (containing, admittedly, unclear distinctions between bulk and targeted powers). The use of thematic warrants and BPDs were publicly avowed for the first time in March 2015 in a report by the Intelligence and Security Committee (the Parliamentary committee appointed to oversee the work of the UK’s security services). 

The Passage of the Act 

Many were hoping to prevent or obstruct the UK Government in its consolidation of these extensive powers. Since the Act was first published in bill form, there has been rigorous engagement with its provisions by legal practitioners, legal NGOs as well as tech companies. When the Act was published in draft form in November 2015 last year, over 1,500 pages of written evidence were submitted to the Joint Committee responsible for scrutinizing the bill. Written evidence was then submitted throughout the year. Legal NGOs and legal practitioners made recommendations calling for many of the powers either to be removed or subjected to much greater restriction. For example, Liberty calledfor a removal of all bulk powers contained in the bill, and the barrister (and Reader at University College London) Dr. Tom Hickman called for the scope of thematic warrants to be greatly reduced.

Official scrutiny of the Act was primarily undertaken by the Joint Committee for the Investigatory Powers Act and the Intelligence and Security Committee (ISC), who both wrote reports in response to the draft bill. These reports also conveyed skepticism about certain powers contained in the bill. For example, the  ISC expressed uncertainty over the need for bulk hacking powers, and the Joint Committee stated that it was not clear that the bulk powers of interception and hacking were compliant with the UK’s obligations under the European Convention on Human Rights.

Partly in response to concerns such as these, the government called for a review of bulk powers by the Independent Review of Terrorism Legislation. The publication of the review report was discussed in a previous blog post by Shaheed Fatima Q.C. The Independent Reviewer concluded in the report that there was a “proven operational case” with respect to three of the bulk powers which were “already in use.” These powers were bulk interception, bulk acquisition (of communications data) and BPDs. At the time of the review, the Independent Reviewer had been told by the UK’s Government Communications Headquarters (GCHQ) they had not so far engaged in bulk hacking. With regards to this power, it was found that there was a “distinct, but not yet proven, operational case” for it.

While the conclusions of the review were welcomed by the UK government, they were not accepted across the board and opposition to the reach of surveillance powers in the bill remained.  Liberty criticized the scope of the review, arguing that its lack of consideration of the necessity and proportionality of bulk powers meant that the most important question regarding their use had gone unanswered. It also criticized the short time-frame for the review, citing the lack of time that had been available for those carrying out the review to consult experts in the field. It also highlighted that no operational case with regards to internet connection records had been made, and it claimed that this power should be removed from the bill.

Despite determined efforts by many to oppose the powers in the bill, only fairly minor changes were made to them during its passage. For example, restrictions were added to class warrants for BPDs, the examination of material obtained under bulk warrant and additional safeguards were added with respect to accessing journalistic material and legally privileged material.

Changes the Act Makes to the UK Surveillance Regime as a Whole 

For those less familiar with the provisions contained in the Act, it should be noted that at the same time as ensuring the same breadth of surveillance powers are available to the government, it also introduces a new authorization process for these powers and new safeguards and body of oversight.

With respect to the authorization process, there is now a mechanism by which judges, called Judicial Commissioners, will be involved in the decision-making process for the issuing of surveillance warrants—a mechanism described as the “Double-Lock.” Judicial Commissioners will be required to approve warrants initially issued by the Secretary of State before they can be fully authorized.

A new oversight body will be set up, which merges previously existing oversight bodies. The body will be made up of an Investigatory Powers Commissioner and a group of Judicial Commissioners. It will keep under review the exercise of statutory functions by public authorities provided for in the Act. Furthermore, as stated, Judicial Commissioners will also be involved in the authorization process for surveillance warrants.

Insofar as these additions to the UK surveillance regime serve to impose robust limitations on the UK government’s use of its surveillance powers, they are clearly welcome. However, the extent to which they will impose robust limitations has been a matter of debate. One issue of controversy is that the Act expressly states that the Judicial Commissioners are to apply judicial review principles when reviewing the Secretary of State’s decision. As was discussed in an earlier blog post by Shaheed Fatima Q.C, there may still be potential for Judicial Commissioners to undertake substantive and meaningful review of the Secretary of State’s decision despite this constraint. However, this remains to be seen.

Furthermore, there are a number of other factors that may serve to constrain the Judicial Commissioners, highlighted here by Lord David Pannick, which are not acknowledged in the Act. For example, there is no clause in the Act which provides that the Judicial Commissioner would have access to all of the same information on the basis of which the Secretary of State made their decision. There is also no provision in the Act to ensure that Judicial Commissioners will be able to access a special advocate to assist them in their decision-making. Concerns have also been raised about the fact that this same oversight body, responsible for providing oversight with regards to the UK surveillance regime, is also responsible for approving surveillance warrants.

Initial Concerns with UK Surveillance Powers Still Stand 

While it is not clear how robust these restrictions will be, what is clear is that the Act does not reduce the powers available to the government. And ultimately, many of the concerns that were initially voiced about the Act still stand. For example, the problems discussed in the blog post by Scarlet Kim, in connection with the expansive hacking powers and use of thematic warrants, remain. The concerns regarding justifiability of access to Internet Connection Records, discussed in a blog post by Shaheed Fatima Q.C, are as relevant as they were last year.

Due to the extensive surveillance powers that the Act provides for, it is still not clear whether the new regime will be compliant with standards set by international law. This was expressly stated by the UN Special Rapporteur when he delivered his first report to the UN Human Rights Council in March this year. The Special Rapporteur argued that the provisions in the Act “prima facie fail the benchmarks” set in recent case law by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

This view is at least plausible. As was highlighted in an earlier blog post by Carly Nyst, the ECtHR has, in the cases of Zakharov v Russia (Grand Chamber) and Szabó and Vissy v Hungary, recently emphasized the need for human rights law principles to be “enhanced” to take into account States’ increased appetite for “massive monitoring of communications.” In the case of Zakharov, it was also emphasized that interceptions must:

“clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which authorization is ordered. Such information may be made by names, addresses, telephone numbers or other relevant information.”

Some have taken such commentary by the Court to be a sign that the ECtHR may be willing to take issue with the Act. Indeed, in a memorandum on surveillance and oversight mechanisms in the UK published in May, the Council of Europe Commissioner for Human Rights cited “major human rights concerns” over the then Bill. Of particular interest in the memorandum was a reference made to suggestions by surveillance experts that “the sheer breadth of a bulk warrant may have difficulties” against the “clear standard” quoted above, as set out in Zakharov. The Commissioner also commented that:

“by their nature bulk warrants place large groups of people under the menace of surveillance without any suspicion on the part of the authorities that an individual has committed a criminal offence or is of national security interest.”

Provisions in the Act may also come into conflict with certain standards set by the CJEU. The UK will be required to adhere to these standards for at least the next few years, even if the UK manages to begin the process of leaving the Union early next year.  The key issue will be the Act’s provisions on data retention. Recent decisions—such as in the joined cases of Digital Rights Ireland and Seitlinger as well in the case of Schrems —suggest that the CJEU is willing to take a more hardline approach with respect to data retention. Furthermore, in July 2016 the Advocate General of the Court of Justice published his opinion on the Tom Watson (and formerly David Davis) case, regarding the lawfulness of the UK’s Data Retention and Investigatory Powers Act 2014 (DRIPA). The Advocate General stated in his opinion that data retention should only be lawful for the purpose of investigating serious crime. This opinion is not binding, and a lot depends on what the CJEU rules in relation to DRIPA early next year. However, it may be that the provisions for data retention in the Act, which allow for data to be retained on the basis of a broad range of purposes—including for the purposes of “public health” and “assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”—may be incompatible with EU standards.

Looking to the Future 

Legal NGOs have made it clear that they intend to challenge the Act on its compliance with international law. Liberty’s response to the passing of the Act by Parliament couldn’t have been clearer. They stated: “[t]he fight does not end here. Our message to Government: see you in Court.”

There are already challenges relevant to the Act underway. For example, Privacy International and five internet and communications providers have lodged an appeal in the ECtHR challenging the UK Government’s hacking powers (under the previous regime). An application by Big Brother Watch regarding bulk interception and intelligence sharing (under the old regime) is also waiting to be heard in Strasbourg. Many legal challenges to be made directly against the Act once it becomes law are no doubt being currently drafted.

Some will be relieved that, for now, the “fight” is not completely over. However, it seems like a sad reflection of the current state of British law-making that an Act like this could be passed in its current form, with the best chance of opposing its most questionable provisions apparently lying in the ability of pro bono lawyers to challenge it in courts.

People will point to a variety of factors to explain how we got here. One factor which has undoubtedly played a role, which other countries who may face similar legislation can hopefully learn from, is timing. It has taken just over nine months for the Act to pass through Parliament. This is an undeniably brief period of time for an Act which, at the time of being introduced to Parliament, was almost 250 pages of complex legal provisions, accompanied by 19 “overarching documents“ many of which were over a 100 pages long. The then Bill was over 300 pages long on leaving the Lords’ report stage. Nine months is insufficient time to subject so many complex provisions to proper scrutiny. Many parliamentarians would barely have had time to get their head around the implications of the first few chapters of the bill, let alone all of its nine long and technical separate parts.  The government was warned that it was “not in the nation’s interest” to pass the Act this year, when over a 100 cross-party lawmakers and campaigners signed a letter calling for a longer consultation period to “give the Bill the time it needs.”

The letter reminded the government that the new law “could lead the world” if it was done right. Indeed, this new legislation was a big opportunity to wipe the slate clean after the Snowden leaks, and to help rebuild trust in the UK government and its surveillance practices. However, the UK government has chosen to push through a law which may well be seen as only serving to enhance distrust: for it consolidates far-reaching surveillance powers which many think should never have been relied upon in the first place.

Review: Anthony Amatrudo and Leslie William Blake, Human Rights and the Criminal Justice System Routledge, 2015, pp 182, GBP 90, ISBN:  978-0415688918

By Samantha Morgan –Williams (PhD Candidate & Academic Assistant at the Centre for Criminal Justice and Human Rights, University College Cork).

This volume addresses the grounding of criminal justice systems within a human rights based focus. The book is authored by academic lawyer, Leslie William Blake and criminologist Anthony Amatrudo. The authors assert that current criminal justice systems must consider the implications of legislation through the lens of human rights discourse. This is a statement which is both true and exceptionally timely post-Brexit vote, with a renewed political focus on human rights in the United Kingdom and growing support for the Conservatives’ plans to scrap the Human Rights Act 1998. The influence of such political posturing has created a Teufelskreis whereby the public view of human rights is at an all-time-low. This vicious circle brought about an increase in negative attitudes, which, in turn, has been coined by some as a ‘monstering of human rights.’

Although human rights are increasingly considered to be a thorn in the political power’s side, it is unquestionable that the flip side of this is that the public’s awareness of human rights is at an all-time high. The increasingly negative views of human rights by the British public have been attributed directly to negative media representation of the European Convention on Human Rights and the European Court of Human Rights (ECHR or the ‘Convention’, and ECtHR respectively). The book is thus, part of a wider consideration of the increasing role and significance of human rights within international governance and global justice. The title is not intended to break new ground, but instead seeks to explore the effects of these new human rights implications upon the criminal justice system in a number of identified areas. These include: gender, terrorism, transnationalism, prisoner rights, new order ‘issues’ such as kettling and existing legal structures and court practices. An examination of these is warranted and necessary, as according to the authors, ‘human rights have eclipsed the rhetoric of religion in contemporary moral discussion’ (p 1).

The book commences with Chapter 1: ‘Human Rights and the Criminal Justice System,’ a rather broad title which blurs the content of this chapter somewhat, citing the works of Manuel Lopez-Ray, Stanley Cohen, and Lucia Zedner in order to show three paradigm treatments of human rights within academic Criminology. The aim here is seemingly to throw light on contemporary theory and practise (p1-2). However, for a book intended for use by both students and academics interested in this area, the explanation of each of the aforementioned is arguably a little thin in order to be of benefit to the former intended readership.

Chapter 2, ‘ECHR and contemporary human rights thinking’, provides a solid background to studies on the Convention and its application in contemporary criminology, focusing largely on its roots in order to better understand its placement within contemporary criminal justice systems. Indeed, the authors raise some interesting points regarding the Convention’s current position in the UK political mind-set recognising on-going plans to repeal the Human Rights Act 1998 and replace it with a “British Bill of Rights” (p23). This approach leads well into Chapter 3, ‘Human rights in British and European Law,’ where the authors address the basis of the Common Law and explain the key differences between Scots law and British law (pp 38-46). Despite the title’s focus, the authors also provide analysis of both Commonwealth (p 51) and US systems of rights (pp 43-5) in this chapter, which lends important comparative insight to this section.

Chapter 4, ‘Recent court cases and their principles’, highlights the core principles of recent court cases concerning police powers, surveillance, and the collection of data. This chapter offers an interesting read for anyone concerned with the right to protest (p 52), or other topical issues such as the ‘kettling’ of children (pp 57-8). Blake also explores the case law concerning proliferating police powers of surveillance and the collection of data (pp 54-6). The examined cases such as Castle & Ors v. Metropolitan Police Commissioner and Wood v Commissioner of Police for the Metropolis are subject to in-depth and thorough analysis (pp 58-61). Particularly noteworthy here is Blake’s treatise of the case of Brian Haw, known for his one-man demonstration in Parliament Square – who argued that retrospective criminal legislation breaches both the Common Law and Article 7 & 10 of the ECHR (pp 60-4). As such, the text provides a solid analysis of recent jurisprudence in this emerging area, and excellent consideration of the key principles in these cases. However, the success of this analysis is marred slightly by the fact that this book has no section dedicated to such cases, as is characteristic of a legal text. Instead, the cases referenced throughout the text are included in the index. While this could be owing to the book’s intention to straddle both the criminological and legal genres, this oversight does somewhat detract from this book’s potential to be used, as intended (and explicitly outlined by the authors on the back cover), as an accessible reference point for both undergraduate and postgraduate students and lawyers.

 

The subsequent Chapters continue to address interesting and highly topical issues for both law and criminology, such as race and gender (Chapter 5), victims and victimology (Chapter 6), terrorism (Chapter 7) transnationalism (Chapter 8) and prisoner’ rights (Chapter 9). Each of these provides a solid grounding in the key issues, and a well thought-out insight into the juxtapositioning of human rights norms and protections against the aims of the criminal justice system. However, in some of these sections, the line of enquiry is marred by the selectivity of the authors’ exploration of the topic in question. For example, in Chapter 9, The Rights of Prisoners, the recent prisoner disenfranchisement debate in the UK is skimmed over in just a page. It is suggested that Amatrudo and Blake, therefore, may have missed an excellent opportunity here to highlight the conflict between international human rights obligations and domestic criminal justice systems, which is characterised by the heated and acutely topical prisoner voting debates. Especially as the prisoner disenfranchisement debate has been so prevalent within the anti-human rights rhetoric in the United Kingdom both within the criminal justice system and further afield.

Regarding the focus on human rights, the depth of such exploration varies throughout the book and most notably between the two contributing authors. Throughout the text, and in an arguably timely stance, Blake consistently makes clear in his contributions that the Human Rights Act 1998, and its incorporation of the ECHR into domestic law, has achieved a great deal. To support his contention Blake emphasises, in particular, the role of the Act in protecting UK citizens from abuses by the State. Amatrudo, however, is less convinced of this, and generally takes a much broader view of the scope of human rights throughout his contributions. This difference in stance towards human rights makes itself clear throughout the text, and ultimately it is not hard to discern from both subject matter and tone of the book’s chapters which contributions were made by which author.

Notwithstanding this, the book largely contributes understanding to an area of proliferating importance. Yet, somewhat ironically, the structure of the work serves to undermine the book’s usefulness as an academic reference for students. As in focusing on ‘key’ topics, the book’s analysis is, by its very nature and essence, limited to these selected topics. Further, as the work itself is structured around these issues with nine chapters dedicated to each of these topics, the book reads almost like an anthology or collection of essays as opposed to a stand-alone work. Although the book does include a conclusion by the authors, it is lacking a foreword or even an introduction which could have eased accessibility for the reader and which would have simultaneously provided insight into why these exact nine topics were chosen for discussion, at the expense of other perhaps more relevant topics. The omission of such an introduction largely detracts from what is a well-written book with excellent case law analysis and some interesting lines of thought, and instead renders the text somewhat inaccessible as a reference point for students.

To summarise, while this book contributes to an increasingly important area of scholarship, namely the intersection of criminology and human rights, there are a few areas which undermine this book’s scope to contribute at the intended level to such debate. The contribution possesses the potential of offering an encompassing compilation on the topic for those with no prior knowledge. Yet, the treatment of the ‘key’ topics can seem rather piecemeal and as a title, this contribution therefore seems more suited to those with a good level of pre-existing knowledge in either criminal justice or human rights.