CHAPTER 12: CIVIL SOCIETY
criminal activities, and with notification of the target where preservation has been
wrongly undertaken.
Hacking, CNE and encryption standards
12.45. As set out above, there are concerns in civil society regarding (in particular) the
recently acknowledged use of CNE, the allegation in the Snowden Documents that
public authorities are seeking to break encryption standards, and the alleged use of a
range of methods for surveillance not set out explicitly in law. 54 As well as the concern
I have already mentioned, regarding the basis for such powers in law, there are
significant concerns regarding the use of these methods at all. In particular in relation
to encryption, some are of the view that these methods are dangerous for the safety
and security of the users of the internet. Moreover, CNE presents a dizzying array of
possibilities to the security and intelligence agencies, and while some methods of CNE
may be appropriate, many are of the view that there are others which are so intrusive
that they would require exceptional safeguards for their use to be legal. The use of
CNE by the security and intelligence agencies is one of a number of issues in the PI
IPT Case.
Increase scrutiny and safeguards
Increase scrutiny
12.46. As set out in Chapter 6, in the vast majority of cases the scrutiny that takes place prior
to authorisation being granted is undertaken either internally by the body concerned
or by the Secretary of State. This has been the subject of considerable criticism. Most
in civil society are of the view that this is simply insufficient to guarantee protection for
fundamental rights and civil liberties.
12.47. For interception, which is authorised by the Secretary of State or Scottish Minister:
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(a)
The primary concern is that the Secretary of State’s position means that it is
difficult, as the head of the relevant institution, to take a robust and independent
judgment as to the proportionality of each request. This is not an attack on the
capability or independence of any particular Secretary of State, but rather upon
the institutional nature of the position. It is magnified by a position where refusal
of warrants is rare,55 and oversight is not considered robust (as described
below).
(b)
It is difficult to reconcile with the doctrine of the separation of powers (whereby
the executive, parliament and judiciary remain separate), and has been argued
as being constitutionally inappropriate as it grants the executive too much
power.
Highlighted in particular by Access and Privacy International.
See the Report of the IOCC for 2003, para 8, Report of the IOCC for 2009, para 2.3 and Report of the
IOCC for 2010, para 2.4.
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