CHAPTER 12: CIVIL SOCIETY
investigatory powers legislation. The fact that significant public information is only
available due to these leaks, of which a significant majority remain NCND, is seen as
unsatisfactory.
12.6.
This reflects a fundamental imbalance. Those involved in investigatory powers have
(naturally) far more information regarding the use of those powers than those in civil
society. Yet, as explained by Dr. Paul Bernal: “[i]t is not enough for the authorities
just to say ‘trust us’: the public needs to know that they can trust the authorities”. For
many, that trust has eroded, and greater transparency is needed to get it back.
Indeed, following the judgment of 6 February 2015 in the Liberty IPT case, which held
that the failure to make certain procedures public rendered the data-sharing regime
unlawful, many saw the need to make more information available to the public. This
need for further transparency is a fundamental concern of many of those with whom I
discussed these issues.3
12.7.
The transparency of laws and the public trust in them is not helped (it was suggested)
by the “rushing” of statutes such as DRIPA 2014 through Parliament, or by piecemeal
additions and amendments to those laws, including most recently CTSA 2015. This
restricts proper and detailed scrutiny of the measures proposed.
The need for clear legal powers
12.8.
12.9.
3
4
It has become increasingly apparent during the course of this Review that a range of
techniques and methods is utilised (in particular by the security and intelligence
agencies). Some of these intrusive practices do not find clear and explicit basis in
legislation, other than general powers in SSA 1989 and ISA 1994. They include:
(a)
the use of CNE, only recently acknowledged by the Government through the
publication of the Draft Equipment Interference Code;
(b)
the suggestion in the Snowden Documents that the security and intelligence
agencies are seeking to break encryption standards;
(c)
the use, such as there is, of OSINT; and
(d)
the use, such as there is, of other surveillance instruments available to the
public, such as IMSI catchers.
A number of those with whom I met, particularly those with a detailed knowledge of
the technology involved, expressed serious concern regarding the fact that such
powers were apparently used but were not clearly articulated on the face of the
legislation.4 In their view, the use of techniques and methods without, at the least,
published guidance, still less explicit Parliamentary approval or public awareness and
support, was not only a large issue for society, but ran contrary to the rule of law (and
Access’ submission to the Review contains detailed consideration of the issue. However, Robin
Simcox’s submission urges recognition of the importance of secrecy in the face of national security
threats.
Privacy International explained in some detail its concerns in this regard.
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