CHAPTER 12: CIVIL SOCIETY
(a)
Detailed review mechanisms in the United States have concluded that US
programmes were “not essential to preventing attacks”7 or had “no discernible
impact”.8
(b)
This is said to be particularly acute in relation to data retention, on which in
Access’ words, US authorities have “dithered”, and without which law
enforcement still seems to operate e.g. in Germany.
(c)
The key issue for authorities should not be gaining more information, but rather
ensuring that information which the authorities do possess is put to good use
(an area which could arguably be improved).9
12.14. In the absence of adequate justification, it is said that people are being asked to put
their faith in a system which they are told is necessary, but with no concrete examples
of why that is the case. Examples are demanded, which should demonstrate that the
methods successfully employed would not have been successful under a different and
less intrusive regime.
Tools for understanding
12.15. Related to this issue is the need for transparency in the operation of the system.
Particular concerns in relation to this include the following:
(a)
Reporting mechanisms (including Commissioners, the ISC and indeed this
Review) must first place their reports before the Prime Minister, who can redact
certain sensitive information.
(b)
RIPA s19 provides for an offence of unauthorised disclosure of the existence
and contents of warrants for interception, which restricts notification in
individual cases and hampers the provision of statistics.
(c)
The provisions for notification in the Acquisition Code at 8.3 are too restrictive,
requiring “wilful or reckless failure” simply to inform a party of the “existence of
the Tribunal and its role”.10
(d)
Statistics are insufficient and incomparable between bodies, leading to an
incomplete and distorted picture. 11
(e)
NCND restricts the information available to the public.
12.16. A number of submissions sought to deal with these points, and I was urged to address
each of them. In particular, in relation to statistics, the need for mandatory and clearly
regulated publication of statistics by each public authority on the use of such powers,
particularly as regards interception and access to data, was highlighted.12 While the
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8
9
10
11
12
The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security
in a Changing World, (December 2013), p 104.
New America Foundation, Do NSA’s bulk surveillance programs stop terrorists? (January 2014).
See the submissions of Big Brother Watch and Liberty.
A point highlighted by IOCCO in its submission to the Review.
Again, a matter which IOCCO also raised as a concern in its submission.
See for example the submission by the Global Network Initiative.
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