This assessment piece focusesupon the following research question: ‘Are the powers for the monitoring ofelectronic communications in the 2016 Investigatory Powers Act an unwarranted restriction of individual liberties?Referring to Gearty in the answer.’ This piece will critically evaluate theInvestigatory Powers Act 2016, where a brief background on the Act will bestated, a thorough analysis of the Act’s legal issues and precedent will beexamined, the restriction of individual liberties and whether the restrictionsare unwarranted will be discussed, and the implications to which this Actbrings forth will be scrutinised. The Investigatory PowersBill gained Royal Assent on the 29th November 2016, now known as theInvestigatory Powers Act 2016.12 In 2013, the extent towhich data was being used by the security services was revealed by EdwardSnowden who was a former CIA contractor releasing details of covert US masssurveillance programmes, which further revealed that countries such as the UKand other western locations also had similar programmes in place.3 Therefore, the IPA 2016came about to serve as a purpose to consolidate the investigatory powers by lawenforcement, security, intelligence agencies and public authorities, clarifyingthe use of powers and safeguards that apply to them.4 It specifies the retentionand acquisition of communications data, the interception of communications,examination of bulk personal datasets, and equipment interference.
5 The introduction to an InvestigatoryPowers Judicial Commissioner has come into action who oversee, authorise andrectify the use of these powers.6 This has created a ‘double-lock’system for the use of warrants where both the Secretary of State and theInvestigatory Powers Judicial Commissioner must authorise and approve awarrant, otherwise it will not come into force.7 The Act underwentpre-legislative scrutiny by three committees: the Intelligence and SecurityCommittee of Parliament, the House of Commons Science and Technology Committee,and by both Houses of Parliament.8 The government claims thatwith an ever-growing digital society, law and power must catch up with thedigital age, and therefore the IPA 2016 restores the capabilities which havebeen lost due to the change of communications among people.9 Though, from a legalperspective, many questions and cases (Watson10 case) have arisen towhether the IPA 2016 is an unwarranted restriction of individual liberties.The IPA 2016 allowsauthorities such as GCHQ, the Secret Intelligence Service, Metropolitan Policeand many other bodies to access confidential information with a warrant.
11 Areas to which the use ofwarrants are required include: targeted interception warrants, targeted equipmentinterference warrants, and bulk interception and acquisition warrants.12 Targeted interceptionwarrants target individuals, organisations or a particular premise to intercepttheir communications and obtain secondary data.13 A targeted equipmentinterference warrant allows the secure interference of any equipment for obtainingcommunications, equipment data and any other information.14 As for the bulkinterception warrant, the main purpose of this warrant relates to either theinterception of overseas-related communications or again, the obtaining ofsecondary data from communications.15 Bulk acquisition warrantscollect bulk metadata which show communication details like the name and timeof the communication, though it does not show the actual content displayedwithin the communication.
1617 The grounds to whichthese warrants can be issued upon, fall under three main areas: nationalsecurity, detecting or preventing a serious crime, or the economic well-beingof the UK, and the above warrants possess an exception to where the approval bythe Investigatory Powers Judicial Commissioner is not required in such urgentcases 1819. Multiple issues have thereforearisen to whether the individual liberties of a person have been compromisedand infringed due to the IPA 2016.20 Firstly, the overallterminology of the Act is seen to be very broad. Privacy campaigners have argued that thelanguage within Act is so general, that government bodies ranging from theSecurity Services to organisations such as the Food Standards Agency areeligible to access the records of people even if they are not under suspicionof criminal activity.21 Further, Apple has criticised that the term ‘telecommunicationsproviders’ is so broadly defined that it can intrude and reach beyond UKborders to any service provider that has a connection to UK customers.22 To evaluate this further, an example could bethe issuing of a warrant to intercept communications, where the Home Secretarybelieves that a warrant can be issued if found ‘necessary’ and ‘the conduct authorisedby the warrant is proportional to what is sought to be achieved by thatconduct’.
23 This is sought to be in accordance to the HumanRights Act 1998 and the European Convention on Human Rights (Article 8), wherea legitimate objective can be achieved even if it infringes the right, so long asit is necessary within a democratic society.24 Therefore, it can beviewed that the broad terminology of the Act grants intrusive powers to thegovernment, whilst only theoretically complying with the HRA 1998 and the ECHR.An issue arising from this terminology could be for example, the definition of’serious crime’.25The definition is wide, causing difficulty to draw a line to what thecriteria of a serious crime entails.
26 The vagueness can thereforerisk those involved in irrelevant minor offences, placing them in a categoricallyincorrect conviction andtherefore giving them a wrong conviction in such situations. Hence, it is vitalthat the scope of necessity and proportionality must be testedsufficiently to prevent the inappropriate use and abuse of power due to thebroad terminology of the IPA 2016.27 A conflicting issue is towhether the IPA 2016 infringes the ECHR Article’s 8 and 10, which grants the rightto privacy and freedom of expression. Also with further consideration to whetherthe creation of IPA 2016 was a neo democracy type of move rather than a democraticallyapproved decision by the people.2829 On one side of theargument, there is the ongoing demand for transparency and increased privacyfor the people, and on the opposing side there is the pressure to ensure publicsafety and security within the UK.30 The public debate of theIPA 2016 is in constant dispute: where there is either a choice of dystopiawhere people will be constantly recorded, monitored and analysed for theirevery move, or a world where criminals can do whatever they want.
3132 Both sides share thecommon motive of fear, where the fear of technological change jeopardises whatthey hold sacred.33 The European Court ruledin November 2017 that the ‘general and indiscriminate retention’ of personalcommunications data by security services and police cannot be ‘justified withina democratic society’34. The executive directorof the Open Rights Group, Jim Killock also stated that the IPA 2016 is moresuited to a dictatorship than a democracy, and the UK has unprecedented powersto analyse and monitor every UK citizens communications regardless of whetherthey are suspected of criminal activity or not.35 In relation, Geartydiscusses this heavy struggle between liberty and security.36 Prior to the IPA 2016, collective deceptionwas utilised until Snowden exposed this, forcing the validation and creation ofthe IPA 2016. Gearty states that there must be open justice, this means no neodemocracy, otherwise the term dictatorship may come into effect as Jim Killockexpresses.37By incorporating human rights and the rule of law, democracy is kept honest andhuman security is respected.
38 Prior to the IPA 2016, between 2009-2014, internet service providerswere required to store communications data for 12 months in accordance to theData Retention (EC Directive) Regulations 2009 pursuant to the Data RetentionDirective.39 The Courtof Justice of the European Union decision in the Watson40case explored whether legislation in the UK and Sweden imposed an obligation oncommunication providers to retain location data and traffic, and whether it wascompatible with EU law. 41The CJEU gave guidance upon national legislation that would be unlawful underEU law.42Firstly, the CJEU held that location and traffic data allowed very preciseconclusions to be drawn about the private lives of people, which included theirdaily movements, everyday habits, their residence, daily activities and socialrelationships.43 Thecourt stated that traffic data was intrusive, being no less sensitive thatcommunications content, and that legislation posing such interference was veryserious.44 Secondly,the CJEU stated that targeted retention of data was justifiable when fighting aserious crime only, and that the granting of access to data must be reviewed byan independent authority or court.45Regarding this, with the new IPA 2016 in place, many aspects of the Act do notsatisfy the CJEU’s criteria mentioned above. Firstly, the retention of data isnot limited to only ‘fighting a serious crime’, but has extended to: the economicwellbeing of the UK, public health, in the interests of public safety, tocollect taxes, to prevent death, injury or damage to health, to assist in theidentification of a deceased person, financial stability, regulation of financialmarkets etc.
46 Withthe broadness it now entails, this enables the retention of data to be muchmore accessible to organisations. As well as that, a review of a warrant by aJudicial Commissioner is not always needed in urgent cases, which can raisemajor issues and implications, as there is no official body testing thenecessity and proportionality of the warrant. The Watson judgment therefore threatenssections of the IPA 2016, creating a legal challenge for the controversialpiece of legislation. The IPA 2016 will have implications for society.
Particularly focusingupon justice, an Investigatory Powers Tribunal has been created for anyproblems relating specifically to the IPA 2016.47Complaints are made either to the tribunal or through proceedings under theHuman Rights Act 1998, section 7 gives a right of action where a person wantsto claim that a public authority has acted in a way which is incompatible withthe convention rights enshrined in the HRA.48With such a controversial Act in place, individual liberties have been abused,and therefore it is only humane that justice can be served through the means ofa tribunal. If the tribunal finds that there has been a neglect of powers, thenit has the power to quash a warrant, ensure the destruction of any informationgathered, and award compensation.49Though, due to the secret nature of interception, it is unlikely that a personwill be aware of what has happened, and therefore will not be able to complain,and get justice for something they were not even aware of.
50Throughout the years, the number of complaints to the tribunal has increasedrapidly from 95 complaints in the tribunal’s first year of operation, to 251 complaintsin 2015.51 Thesestatistics suggest that people’s individual liberties are being restrictedwithout their permission, otherwise there would be less complaints. Inaddition, the success rate of the tribunal is incredibly low with only 10 in1,019 complaints being successful in the past five years.52This may suggest negative implications, as to whether justice is being servedappropriately and fairly.53