Anderson Report: forget the ‘oversight’ window-dressing; on course for total surveillance

Today David Anderson QC released his report on the UK’s surveillance laws and his recommendations on how they can be reformed/overhauled/improved. As with most reports of this kind it’s full of caveats and possibilities and the occasional criticism. But in essence what it is saying is that though some better oversight is needed (that is the window-dressing bit) the present course, or trajectory, towards total surveillance should continue. No more ‘open society’ (was there ever really one?) and self-censorship to become the new norm. Let’s see what the pundits and apologists and assorted soothsayers say – a compilation is below…

A. The Report

The Anderson Report is called (ironically?) ‘A Question Of Trust’ (pdf via Statewatch or direct from Independent Reviewer of Terrorism Legislation.)

The Annexes to the Report are worth examining. Here are some of the more interesting ones…

  • In Annexe 4 Anderson provides a list of meetings and participants in preparation for the Report – the usual suspects plus some not so usual ones.
  • In Annexes 8 and 9 Anderson provides case studies of interception and bulk data retrieval – justification to go for broke.
  • In Annexe 13 and 14 Anderson provides details and data on Local Authority requests for intercepts via RIPA – highly selective case studies that don’t show how most LEA intercepts are about welfare ‘fraud’ (i.e. aimed at poor).
  • In Annexe 15 Anderson outlines the judicial oversight and warrant processes for each of the other ‘Five Eyes’ (Australia, New Zealand, Canada and the USA) – are we supposed to emulate them or they us?

A. Compilation of comments

First, our summary…

1. Recommends better-worded surveillance legislation that covers all angles/possibilities so that even the dumbest can know what total surveillance really means.
2. No change in mass surveillance practices (searches, web logs, etc) – nothing new.
3. Recommendation of judicial approval of intercept warrants (this is likely to be rejected as too cumbersome: already Cameron has expressed his doubts).
4. Same with communications between lawyers and journalists and their clients/sources (again, likely to be rejected by Govt for same reason).
5. ‘Snoopers Charter’ trawling and retention of Internet data to proceed (and probably expanded) as per current practices – but requires new legislation to explain why and how this is happening and (preferably, according to Anderson) not via the backdoor.
6. No-go encrypted tools to be curtailed/banned (if achievable/if possible – interesting times ahead!).
7. Consolidation of existing watchdog bodies into one streamlined oligarchy of oversight.

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1. The Guardian (a summary)

  • Existing internet surveillance laws should be replaced with a new law, “both comprehensive in its scope and comprehensible to people across the world”.
  • The bulk collection of communications data should continue, subject to safeguards
  • Judicial authorisation should be required for all interception warrants, with the role of ministers limited to saying some warrants are required in the interests of national security.
  • Judicial authorisation should be required if the police want to obtain communications data relating to people like lawyers and journalists who receive information in confidence.
  • The power in the draft communications data bill for the retention of website search information (one of the most controversial elements in the “snoopers’ charter) should only apply where “a detailed operational case can be made out and a rigorous assessment has been conducted of the lawfulness, likely effectiveness, intrusiveness and cost”.
  • A new independent surveillance and intelligence commission to be established, replacing the three existing commissioners dealing with surveillance.

For more, see:

2. Liberty

What Liberty likes:

  • Anderson’s call for all interception warrants and and some communications data requests to have to be approved by judges.
  • His rejection of some elements in the draft communications data bill.
  • His call for a new law to comply with international human rights safeguards.
  • His call for investigatory powers tribunal rulings to be subject to appeal on matters of law.
  • His call for hacking, or computer network exploitation, to be brought within the law.
  • His call for information about general spying capabilities to be made public.

What Liberty does not like:

  • His support for the bulk collection of communications to continue, subject to safeguards.
  • His call for the data retention laws in the Data Retention and Investigatory Powers Act 2014 to remain.
  • The vagueness of the information provided in the case studies in the report to justify mass surveillance.

3. Big Brother Watch

“David Anderson has produced a well researched and balanced report.  He has provided the country with a clear analysis of the delicate balance between surveillance and privacy in the UK today. He has listened at length to all the key players in this debate and we welcome his acknowledgment of the many areas we have repeatedly noted as being of concern. Whilst the report features a number of excellent recommendations, notably the introduction of judicial authorisation of warrants; including those currently signed off by a Secretary of State, the creation of a new Commissioner system, a complete rewrite of RIPA, and that a compelling case for the intrusive powers called for in the “Snoopers Charter” has failed to be made. On the issue of bulk data collection, further discussion about safeguards based on necessity and proportionality is critical.  Bulk data collection whilst useful, has the power, as Mr Anderson noted, to be “revealing of personal habits and characteristics”. Further discussion and debate is therefore essential. We hope today’s report will be the start of a long overdue and much needed parliamentary and public debate.  The creation of a joint committee to begin analysis on existing legislation and Mr Anderson’s report should now be convened.”

For more, see:

4. Privacy International

“This report is confirmation of the pressing need for wholesale reform of Britain’s surveillance laws. Mr Anderson is resounding on this point: the current legal authorities for interception and collection of data are unclear, obscure and not fit for purpose. The response must be a new, consolidated piece of legislation that not only adds clarity and rigour to existing surveillance laws, but brings presently unregulated practices such as hacking and intelligence sharing within the letter of the law. In distinguishing his report from the Intelligence and Security Committee’s (ISC) analysis, Mr Anderson rejected that committee’s recommendations for a separate piece of legislation regulating the intelligence services, proposing instead one piece of law that would regulate all surveillance powers, whether they be deployed by the police or by the spies.

“Mr Anderson has recommended a number of positive changes that provide clarity and rigour to a system long criticised for being overly complex. Mr Anderson’s proposals for “specific interception warrants” promises to streamline the process, and the introduction of judicial commissioners into the warranty process is an important step towards greater accountability in this process. However, we are disappointed to see that Mr Anderson has not recommended the introduction of a “reasonable suspicion” requirement as a pre-requisite condition to the commencement of interception or access to data. Requiring the existence of a suspicion would ensure that surveillance is only used in limited and exceptional circumstances.

“It is disappointing that Mr Anderson didn’t see fit to condemn the very idea of bulk interception. Although we appreciate his deference to the courts in determining the proportionality of indiscriminate surveillance, we believe this report was a missed opportunity to recommend an end to mass surveillance, and bring the UK in line with developing international legal standards in this field. With respect to blanket data retention, Mr Anderson approved of this practice for the government going forward, even as he noted that it would have to comply with the CJEU’s decision in Digital Rights Ireland, leaving open the door for this practice to be rolled back depending the British Courts’ decisions in the case brought by David Davis MP and Tom Watson MP.

“Mr Anderson reiterates what Privacy International has been saying for sometime—RIPA is written in a manner that not only confuses readers but obfuscates the powers it contains. The arbitrary internal/external distinction, which has previously formed the basis of the government’s justification for its mass surveillance, has been exposed as being empty, confusing and meaningless. Mr Anderson rightly recommends moving away from the distinction. However, we are disappointed that he hasn’t taken this opportunity to speak out against discriminatory privacy protections that afford one level of privacy rights to British persons and another to foreigners. His recommendations enshrine the government’s position that mass surveillance of foreigners is an acceptable activity of a democratic state, and improve protections for Britons while entrenching privacy intrusions for everyone else.

“Mr Anderson has sought to accommodate the concerns of the intelligence agencies about extending judicial authorisation to bulk warranting processes, a measure which we believe is long overdue, by limiting the role of judicial commissioners when warrants relate to “defence of the UK or its foreign policy”. We fundamentally believe that, even when such interests are at stake, a legal analysis of whether interception is justified should still trump a political analysis.

“We welcome Mr Anderson’s criticisms of the extraterritoriality provisions of DRIPA, which we believe set a dangerous precedent for less democratic states who might follow Britain’s example and seek to assert their own power to intercept communications and access data outside their borders. While we would have preferred to see Mr Anderson recommending the immediate repeal of DRIPA’s extraterritoriality provisions, we encourage further pursuit of a multilateral arrangement that includes appropriate safeguards to ensure extraterritorial requests comply with international human rights standards. In this regard, it should be noted that Sir Nigel Sheinwald’s report will provide important guidance and should be published without haste or redaction.

“The report is clear that the Communications Data Bill should not be progressed until a compelling operational case for the powers it contains has been made. Mr Anderson reiterates that the government has so far failed to do so. This is a resounding condemnation of the government’s plans to introduce the Snoopers Charter, which should now be scrapped once and for all.

“While Mr Anderson stopped short of recommending that content and communications data be given equal consideration in legal frameworks, he made the important recommendation that the definitions of both be addressed. He sadly stopped short of requiring judicial commissioners to approve of requests for access to communications data, retaining the status quo in this regard, and recommended the introduction of a new bulk communications data warrant.

“Mr Anderson recommended raising the level of protection afforded to those in positions to which legal privilege attached, stipulating that decisions for access to communications data of such persons would have to be approved by a judicial commissioner.

“Mr Anderson’s recommendation that surveillance warrants be signed off by independent commissioners is a critical one; eradicating ministerial warrants and introducing impartial arbiters into the process of authorising surveillance will make the system more rigorous and accountable. While the report does not go as far as we would like, stopping short of recommending a role for the courts in the authorisation of warrants, we think Mr Anderson’s recommendations if heeded by the government would constitute a considerable improvement over the current system.

“The current surveillance commissioners are drastically under resourced and under staffed, so any reform which improves the powers, resources and responsibilities afforded to oversight mechanisms is warmly welcomed. Mr Anderson’s suggestion of establishing a one-stop-shop commission that would authorise, scrutinise and oversee all investigatory powers could go a long way toward improving the effectiveness and efficiency of surveillance oversight.  The implementation of this recommendation will have to be scrutinised closely to ensure that there is sufficient independence in the various arms of the ISIC. We welcome the suggestion that the ISIC would be empowered to notify individuals of errors in making affecting them, and to let them know of their right to lodge an application at the IPT.

“Mr Anderson has made a strong recommendation with respect to the Tribunal, asserting that it must be empowered to make declarations of incompatibility, and that their must be a right of appeal from decisions of the Tribunal, on points of law.

“Mr Anderson did not recommend any major changes, instead leaving questions as to the scope and operation of the Committee to Parliament.

“Mr Anderson’s principle of “minimising no-go areas” raises a number of concerns about the Government’s entitlement to prevent individuals from communicating secretly and anonymously. However, even though Mr Anderson expresses some controversial opinions about the need to ensure there are legal powers that extend the government’s reach to all parts of the internet, notably he makes no recommendations for bolstering legal powers in this area.

For more, see:

See also:

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3 Responses to Anderson Report: forget the ‘oversight’ window-dressing; on course for total surveillance

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