CHAPTER 1: INTRODUCTION
(b)
The authorities see a decline in the proportion of electronic communications
which they have the ability to access or to make use of, fear the emergence of
channels of communication that cannot be monitored, and seek to redress the
balance with new powers in the interests of national security and the prevention
and detection of crime.
Each sees a future in which they lose control. Privacy advocates look at a world in
which ever more data is produced, aggregated and mined. The authorities fear
developments such as universal default encryption, peer-to-peer networks and the
dark net.
The effect of Snowden
1.8.
Each of the rival camps is well-entrenched: the Communications Data Bill was being
proposed, and caricatured as a “snoopers’ charter”, before anyone had heard of
Edward Snowden. But the Snowden Documents have transformed the position in a
number of ways.
(a)
They have provided material for debate: though the UK Government retains its
strict policy of “neither confirm nor deny” [NCND],13 some capabilities have
been admitted (notably PRISM, after its acknowledgment by the US
Government, and computer network exploitation [CNE]) and the IPT in
particular has been prepared to review the lawfulness of other programmes
(such as TEMPORA) on the basis of assumed facts.
(b)
For privacy advocates, the Snowden Documents have caused them to believe
that investigatory powers are used more widely even than they had suspected,
and provided a nucleus for wide-ranging litigation.14
(c)
The opening up of the debate has however come at a cost to national security:
the effect of the Snowden Documents on the behaviour of some service
providers and terrorists alike has, for the authorities, accentuated the problem
of reduced coverage and rendered more acute the need for a remedy.
The international dimension
1.9.
There is some evidence that reaction to the Snowden Documents was less marked,
and less negative, in the UK than in some other countries.15 But to approach the
debate as though domestic considerations are all that matter is not realistic, for at
least four reasons:
(a)
13
14
15
International travel, the global nature of the internet and the ability to tap
international cables means that the use of investigatory powers by UK
authorities inevitably impacts upon persons who are neither British citizens nor
present in the UK.
Though see Belhadj and others v Security Service and other (Case no. IPT/13132-9/H) [Belhadj IPT
Case], judgment of 29 April 2015.
See further 5.35-5.54 below.
See 2.25-2.35 below.
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