A general atmosphere of fear and suspicion has contributed to the passage of comprehensive surveillance legislation in the UK, described by many experts as the most restrictive in the western world.
The Investigatory Powers Act, dubbed the ‘Snoopers Charter’ by opponents, came into effect on December 30, 2016, after surprisingly little opposition both within and outside Parliament.
The new law introduced a number of provisions, including granting new powers for intelligence agencies and law enforcement to intercept communication, collect communications data and intercept communications.
An Investigatory Powers Commission (IPC) has been created to oversee the use of powers, while internet service providers are required to retain internet connection records for each user for one year.
An array of other powers provided within the law led to condemnation from a number of corners, with critics arguing that the increased surveillance and lack of privacy will significantly affect journalism in a number of ways.
Media groups have expressed concerns over protecting sources as well as the flow of information, while other opponents have labelled the law undemocratic.
“Tools for repression”
While there was not much resistance to the law within parliament, there was opposition to the bill from certain members who joined advocated for freedom of speech in expressing concerns over the provisions within the bill.
Liberal Democrat peer Lord Strasburger spoke out against the bill saying: “We do have to worry about a UK Donald Trump. If we do end up with one, and that is not impossible, we have created the tools for repression.
“If Labour had backed us up, we could have made the bill better. We have ended up with a bad bill because they were all over the place.
“The real Donald Trump has access to all the data that the British spooks are gathering and we should be worried about that,” he added.
Other press freedom advocates have expressed their serious concerns over the bill and the erosion of privacy that it entails, including NSA whistleblower, Edward Snowden who tweeted: “The UK has just legalised the most extreme surveillance in the history of western democracy. It goes further than many autocracies.”
Executive director of Open Rights Group, Jim Killock argued: “The UK now has a surveillance law that it more suited to a dictatorship than a democracy. The state has unprecedented powers to monitor and analyse UK citizens’ communications regardless of whether we are suspected of any criminal activity.”
Chief executive of Big Brother Watch, Renate Samson stated: “The passing of the investigatory powers bill has fundamentally changed the face of surveillance in this country. None of us online are now guaranteed the right to communicate privately and, most importantly, securely.”
“The passage of the Snoopers’ Charter through parliament is a sad day for British liberty,” said Bella Sankey, policy director for rights organsiation, Liberty.
“Under the guise of counter-terrorism, the state has achieved totalitarian-style surveillance powers –- the most intrusive system of any democracy in human history.
“It has the ability to indiscriminately hack, intercept, record, and monitor the communications and internet use of the entire population,” she added.
The International and European Federation of Journalists joined the National Union of Journalists (NUJ) to condemn the charter, with the NUJ saying: “The bill is an attack on democracy and on the public’s right to know and it enables unjustified, secret, state interference in the press.
“The government has argued the bill is about dealing with national security and serious crime but what they have actually done is use terrorism as an excuse to give themselves new powers to spy on journalists.”
IFJ president, Philippe Leruth stated: “We join our colleagues in the UK in condemning this bill which enables unjustified state interference in journalism and investigative reporting and exposes journalistic sources and whistleblowers.
“Under this bill, the state would have no obligation to contact a journalist or media organisation when they access the information stored, preventing our colleagues to uphold the ethical code of conduct enshrining the principle to protect sources.”
EFJ president, Mohens Blicher Bjerregard added: “The United Kingdom is pretending to protect its citizens by imposing this massive surveillance, but it will rather undermine their privacy and their right to information since it will also undoubtedly damage the way journalists work. National security should not interfere with journalistic sources.”
Clarifying legal situation
Supporters of the bill have argued that its passage provides a level of clarity to the current situation regarding surveillance, and legalises powers that authorities have already been using for years without oversight.
In October of last year, the investigatory tribunal ruled that MI6, MI5 and GCHQ had been unlawfully collecting swathes of personal data and communications for some 17 years.
And so while there are certainly concerns over privacy related to the law, perhaps its most positive aspect is that it clearly sets out the parameters within which the authorities are able to monitor online activity, and thus introduces an increased level of transparency to government surveillance.
The legalislation of various sanctions which have already proven to be successful in combating cybercrime, terrorism and other forms of illegal activity has also been highlighted as a positive development by supporters.
Therefore, while there are a number of issues that have been raised in opposition to the bill, backers argue that by setting out boundaries within which surveillance is allowed to take place, the bill brings clarity to a particularly murky area of intelligence gathering.
Although the Home Office claimed that the bill was compatible with the European Convention on Human Rights, the European Court of Justice ruled against the bulk retention of emails and other data by member states on December 21, 2016.
“The members states may not impose a general obligation to retain data on providers of electronic communications services,” the court said.
“EU law precludes a general and indiscriminate retention of traffic data and location data,” it added.
However, the court did say that targeted and supervised retention of data is allowed by EU law, as long as it is “limited to what is strictly necessary.”
The British government reacted to the decision by expressing their disappointment, with a Home Office spokesman saying: “We are disappointed with the judgement from the European Court of Justice and will be considering its potential implications.
“It will now be for the Court of Appeal to determine the case. The Government will be putting forward robust arguments to the Court of Appeal about the strength of our existing regime for communications data retentions and access.”
“Given the importance of communications data to preventing and detecting crime, we will ensure plans are in place so that the police and other public authorities can continue to acquire such data in a way that is consistent with EU law and our obligation to protect the public,” the spokesman added.
Global fear contributes to passage of bill
A number of factors combined to make the passage of the bill comparatively easy, including global fears of the spread of extremism, as well as the Brexit referendum and its aftermath.
With fears over the spread of terrorism reaching unprecedented levels, and a number of attacks taking place throughout Europe and the rest of the world, a law enabling increased surveillance was welcomed by many concerned about the spread of extremism online.
However the future of the bill remains unclear, as the ECJ’s decision means that rights campaigners will have serious support for any future legal challenges they choose to mount against it, meaning that amendments will probably have to be made.
And while the UK is currently in the process of negotiating its exit from the EU, the legal precedent set by the recent decision will still apply to British judges dealing with privacy issues in the future.
Whatever the future of the bill, its passage, the public debate surrounding it and the lack of opposition raised in parliament are indicative of the difficulties associated with legalising surveillance in the modern age of communication and technology.
The balance between protecting media freedom, journalistic integrity, and the free flow of information, while defending national security and attempting to fight terrorism remains particularly difficult to strike.
Through its adoption of this particular act, the UK government has set out its position as one of strength, which although perhaps unsurprising, does not necessarily make it acceptable or justified in the view of its fierce opposition.