UK spy agencies’ use of mass surveillance backed by external reviewer

The UK government’s independent reviewer of terrorism legislation has supported the inclusion of bulk collection powers contained within the controversial Investigatory Powers bill.

The opposition Labour party had called for a review of bulk powers, arguing the government had yet to make an operational case for their inclusion in the draft bill — although the party ultimately voted with the government to support the bill’s passage through the House of Commons.

Privacy and human rights groups have also criticized bulk powers, arguing the powers are disproportionate and unnecessary.

In a 204-page report, published today, the external reviewer — QC David Anderson — writes that there is a “proven operational case for three of the bulk powers [bulk interception, bulk acquisition and bulk personal dataset], and that there is a distinct (though not yet proven) operational case for bulk equipment interference” [aka hacking].

Although he also notes that his review did not consider proportionality — saying that remains a matter for parliament to consider: “The Review was not asked to reach conclusions as to the proportionality or desirability of the bulk powers. As the terms of reference for the Review made clear, these are matters for Parliament.”

On the controversial matter of bulk collection (aka mass surveillance) Anderson argues such powers play an important role for UK security services in “identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”, adding that “where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower”.

He does have one recommendation — suggesting the Investigatory Powers Commission establishes a technical advisory panel of independent academics and industry experts “to advise on the impact of changing technology, and on how MI5, MI6 and GCHQ could reduce the privacy footprint of their activities”.

“Though it found that the bulk powers have a clear operational purpose, the Report accepts that technological changes will provoke new questions,” he adds. “Adoption of its Recommendation will enable such questions to be asked, and answered, on a properly informed basis.”

The IP bill is currently being scrutinized by a House of Lords bill committee, where it has faced opposition from peers — with concerns including its impact on privacy and potential to undermine end-to-end encryption.

Responding to Anderson’s report today, the Liberal Democrats — whose peers have been among the most critical of the draft bill — called on the government to table an amendment to give effect to his recommendation for a technical advisory panel.

In a statement the party’s Home Affairs spokesperson Alistair Carmichael said: “As Anderson himself states ‘the Review was not asked to reach conclusions as to the proportionality or desirability of the bulk powers‘  it now falls to us in both the Commons and the Lords to assess whether the powers are proportionate and desirable in a democratic state.”

“Despite it being one of the most intrusive powers, the provision to capture and store all of our web histories for 12 months has not been scrutinised in this report. Liberal Democrats continue to be utterly opposed to this excessive and authoritarian measure that not only erodes our privacy but will likely to prove to be a waste of money and fall foul of our courts,” he added.

Civil rights group Liberty, which is challenging the legality of bulk collection/mass interception in the European Court of Human Rights, is scathing about the report, arguing it falls “far short of the impartial, probing and well-evidenced investigation into the necessity of ‘bulkpowers so urgently required” — and dubbing its conclusions “fatally flawed”.

“Human rights laws require that secret surveillance measures can only be justified where they can be shown to be ‘strictly necessary for the obtaining of vital intelligence in an individual operation’,” writes Liberty. “Today’s report fundamentally fails to demonstrate that this is the case.”

Specifically Liberty argues the report failed to answer whether information gathered via bulk powers was the “critical factor in preventing or detecting serious crime, and whether that information could have been obtained from smart, targeted surveillance instead”.

The group is also critical of Anderson for focusing only on what it says are “claimed successes of bulk power use” — based on “anecdotal assertions from the intelligence agencies”.

“It fails to inspect evidence of their failures, or to provide clear, evidence-based methodology to explain its conclusions,” it adds.

Liberty also hits out at the less than three-month timeframe the reviewers were given to complete the report as “clearly insufficient” — and points out that Anderson’s advisors included a former director of technology and engineering at GCHQ, and a former director of intelligence for the National Crime Agency, arguing the review panel was thus not institutionally independent of the security and law enforcement agencies.