07 Dec

The fact that Human rights group Liberty has won the right for a judicial review into the Investigatory Powers Act 2016 could mean a legal challenge in the high court as soon as next year.

The Investigatory Powers Act

The Investigatory Powers Act 2016 (also known as the ‘Snooper’s Charter’) became law in the UK November 2016. It was designed to extend the reach of state surveillance and requires web and phone companies (by law) to store everyone’s web browsing histories for 12 months and to give the police, security services and official agencies unprecedented access to that data. The Charter also means that security services, government agencies and police can hack into computers and phones and collect communications data in bulk, and that judges can sign off police requests to view journalists’ call and web records.

Long Time Coming

Liberty was given the general go-ahead by the UK High Court to make a legal challenge against the Investigatory Powers Act in July 2017 and was enabled to do so with the help of £50,000 of crowdfunding raised via CrowdJustice.

Also, Liberty’s challenge is thought to have been helped by the European Court of Justice (in a separate case, represented by Liberty lawyers back in 2016) ruling that the same powers in the old the UK state surveillance law the ‘Data Retention and Investigatory Powers Act’ (DRIPA) were unlawful, and by a ruling by the court of appeal in January 2018 also finding the same thing.

The UK government was, therefore, given until July 2018 to amend or re-write powers to require phone and internet companies to retain data on the UK population.

Part 4 of the Act

The most recent High Court ruling on 29th November gives Liberty the right to a judicial review on part 4 of the Investigatory Powers Act.  This is the part which gives many government agencies powers to collect electronic communications and records of internet use, in bulk, without reason for suspicion.

Concerns About GCHQ’s Hacking

Human rights groups and even Parliament’s Intelligence and Security Committee have become particularly concerned about an apparent shift towards the use of hacking of computer systems, networks and mobile phones for information gathering by intelligence services such as GCHQ in projects such as the ‘Computer Network Scaling’ programme.

What Does This Mean For Your Business?

The UK’s ability to spot and foil potential plots is vital. Although the Investigatory Powers Act may include measures that could help with that, many people and businesses (communications companies, social media, web companies) are still uneasy with the extent of the legislation and what it forces companies to do, how necessary it is, and what effect it will have on businesses publicly known to be snooping on their customers on behalf of the state. The 200,000+ signatures on a petition calling for the repeal of the Investigatory Powers Act after it became law, and the £50,000 crowdfunding raised from the public in less than a week to challenge parts of the Act in the courts, both emphasise the fact that UK citizens value their privacy and take the issues of privacy and data security very seriously.

Liberty is essentially arguing for what it sees as a more proportionate surveillance regime that can better balance public safety with respect for privacy. The government initially believed that this level of surveillance was necessary to counter terrorist groups and threats posed to safety and democracy by other states, but successive legal challenges by Liberty have seen them give some ground. According to the Intelligence and Security Committee, GCHQ is running a project that aims to improve the way that it complies with the Act, and MI5 has also said that it trying to operate more compliantly.  As for any additional oversight of government orders to internet and phone companies, this is estimated to be running about a year behind schedule with IT problems being blamed for the delay.