CHAPTER 12: CIVIL SOCIETY
will need to be made clear. The current provisions of s80 (the general saving for lawful
conduct) are, it is argued, opaque and complex.33
Scope of investigatory powers
12.32. Underlying the overwhelming majority of criticisms and submissions received from
those in civil society was a fundamental concern regarding the scope and breadth of
investigatory powers, although such a concern was not necessarily explicitly stated.
While these concerns extended across the range of investigatory powers, two areas
were of particular note: bulk collection of intercepted material and data retention.
12.33. There were a number of broad reasons for this. Many submissions were of the view
that such bulk collection/retention could not (or, at the least, as currently practised in
the UK does not) meet the requirements of the law, and in particular the requirements
of EU law (articulated in Digital Rights Ireland) and the ECHR.34 Others took a wider
approach, highlighting alongside legal concerns the need for the protection of privacy
as a social imperative,35 and broader ideas regarding the type of society in which such
collection/retention is permissible. The idea of “sleepwalking into a surveillance
society”, a concern first raised by the Information Commissioner in 2006, permeates
some of these submissions. As stated by Open Rights Group:
“… communications methods in general have expanded and the digital world
makes surveillance even easier. The expansion of this approach means we have
slipped into a mass surveillance model without a democratic debate regarding
the consequences.”
12.34. Unsurprisingly, given these concerns, the vast majority of those with whom I met from
civil society emphasised the need for restrictions on those powers.36
Bulk collection
12.35. The idea of bulk collection of communications at the level of cables, with limited
safeguards applied to such collection (rather than later access), is vehemently
opposed by some of those who made submissions to me. Their reasons include the
following:
(a)
33
34
35
36
RIPA is, it is argued, is built on the idea of targeted, rather than bulk, warrantry
(and therefore targeted surveillance and targeted collection). Bulk collection
In relation to interception, see further RIPA s1(5)(c), which provides that interception in relation to stored
communications has “lawful authority” if undertaken under “any statutory power”. In relation to
communications data, para 1.3 of the Acquisition Code states that public authorities should only use
other powers if such powers explicitly provide for obtaining communications data. Section 21(1) appears
to encompass within Chapter 2 any conduct for obtaining data (that falls outside of interception). DRIPA
2014 s1(6)(a) states that a service provider retaining communications data under DRIPA 2014 must not
disclose it except under RIPA Part I Chapter 2, or as provided by regulations. See further Richard
Greenhill’s submission to the Review.
Including not only rights protected under Article 8, but also including rights to a fair trial, freedom of
expression and freedom of association. These concerns are highlighted in the submission received
from Dr. Paul Bernal.
As articulated comprehensively in the submission received from Dr. Paul Bernal, as well as in the
submission of Charles Raab to the ISC.
Robin Simcox’s submission was to the opposite effect.
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