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The emergency surveillance legislation will make us safer

11 July 2014

9:24 AM

11 July 2014

9:24 AM

Isabel wonders whether it is a good thing that all main parties allied in passing emergency surveillance legislation into law yesterday. While it’s true that legislation passed without any significant political objection can be bad news, this is one case where that rule does not apply.

There are a number of reasons why the legislation was necessary. One was the European Court of Justice verdict from earlier this year that meant that this country and a large number of internet providers were at risk of entering a legally grey area. Far from being an ‘extension’ of powers, this bill is about the retention of powers which had been accepted until the European Court ruling put this into question. The retention of large amounts of data by service providers and their giving of access to them, under warrant if requested, is not new but is necessary. What the bill does is provide primary legislation to allow British agencies and service providers to do exactly what they were doing up until now.

Obviously, post-Snowden, this has become a highly emotive area. There remain vast swathes of people who somewhat flatter — as well as mislead — themselves by thinking that the NSA or GCHQ would ever wish to monitor their every move. They do not.  As the Prime Minister said yesterday, the type of people whose communications might be of interest are only those who would seek to do us harm. There is no sane reason why GCHQ would wish to find out what type of John Lewis dining table I have favourite-ed online. All that happens is that those tasked with protecting the British public seek now — as they have done for centuries — to find and disrupt the activities of people who seek to do us harm.

It is striking that (presumably because of the focus on data retention post-Snowden) there has not been so much focus on the other portion of the bill — that to do with intercept. In many ways this is more important. What the legislation does is, again, to make legally watertight something which had entered a grey area. The bill allows intercept powers to be co-operative and extra-territorial. It should be better understood what this does and does not entail.

It means that if you are a communication service provider and there’s external traffic coming through your servers that is relevant to the UK, then you are subject to a warrant being served from the UK under existing law. In the not very distant past a need to intercept would have involved the Post Office or BT. But now people’s communications can be done through any number of providers, including companies outside the UK. This legislation allows the government to serve warrants on such companies and compel them into cooperating. This is something which, apart from anything else, allows the providers to clarify their legal standing and to explain to any doubting customers that, in such extreme cases, they are simply cooperating with a country with the rule of law, going through the legally correct procedures. I suppose there are alternatives to this, but it is hard to imagine many that don’t involve either encouraged illegality or anarchy.

As for the claim that this bill was rushed or a ‘predicable emergency’, it seems completely sensible to get such an important bill through before recess in order not to lose precious months (delay after recess would have meant the bill being passed in September or October at the earliest). And it is hard to see that a bill which has taken months to compile – and which needed political buy-in from all parties – has been in any way rushed. Key Liberal Democrats have given the bill their assent and I think it’s safe to say that building a political consensus like the one we saw yesterday need not be a matter of ‘rushing’ but rather one of politicians of all parties understanding the appropriate concerns and the need to act on them when faced with the facts.

In any case, anybody who is seriously concerned about all this can take some further solace from the fact that there is of course a sunset-clause on this act. In late 2016 the House of Commons will come back to this legislation. At that time they can see whether the system has been working up to then, renew it if has been and either alter it or scrap it if it has not.

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