CHAPTER 13: PRINCIPLES
13.17. Things are very different in the digital world. Obligatory data retention requires service
providers to retain and make available valuable communications data relating to,
effectively, the whole population. Internationally, though GCHQ can access “only a
very small percentage” of the 100,000 bearers that make up the structure of the
internet and does not exercise “’blanket’ coverage of all communications”, the volume
of communications travelling over those bearers is nevertheless “extremely large”.14
The availability of these techniques, and the relatively low marginal cost of using them,
allow data to be harvested without any need for suspicion – an uncommon state of
affairs where more labour-intensive powers are concerned.15
13.18. That is not to say that the interceptors and the collectors of communications data have
it all their own way. Their resourcefulness is matched by that of cyber criminals and
those who seek to threaten or undermine the State who, unlike them, are not
constrained to behave ethically. The capabilities of the state are subject to technical
or cost-based limits. But if the acceptable use of vast state powers is to be
guaranteed, it cannot simply be by reference to the probity of its servants, the
ingenuity of its enemies or current technical limitations on what it can do. Firm limits
must also be written into law: not merely safeguards, but red lines that may not be
crossed.
13.19. The point may be illustrated as follows. Some might find comfort in a world in which
our every interaction and movement could be recorded, viewed in real-time and
indefinitely retained for possible future use by the authorities. Crime-fighting, security,
safety or public health justifications are never hard to find. So, to use a little
imagination:
14
15
(a)
A perpetual video feed from every room in every house (it being a serious
criminal offence to obscure the lens), could reduce the incidence of domestic
violence, even if the police undertook to view the record only on receipt of a
complaint, and assist the detection of what remained.
(b)
Blanket drone-based surveillance would ensure that criminals could not escape
attention by holding their conversations outdoors.
(c)
Electronic communications could be permitted only through the medium of
licensed service providers, which as a licence condition would have to retain
within the jurisdiction a complete plain-text version of every communication and
make it available to the authorities on request.
(d)
A constant feed of data from vehicles, domestic appliances and healthmonitoring personal devices would enable the Government to identify
suspicious (or life-threatening) patterns of behaviour, and take pre-emptive
action to warn of risks and protect against them.
ISC Privacy and Security Report, paras 58-59.
There are no-suspicion powers in the physical world: see, e.g. the stop and search power in the
Criminal Justice and Public Order Act 1994, s60, and the port stop power in the Terrorism Act 2000,
Schedule 7, but even these are not exercised in a wholly random manner.
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