CHAPTER 12: CIVIL SOCIETY
Clear guidance should, it was urged, be provided for these processes, as well as
accompanying oversight mechanisms.
12.73. A related topic is the extraterritoriality provisions in DRIPA 2014, considered in a
number of submissions I received.88 These focused on the legal complexities of
requiring companies in other states to comply with notices and warrants issued in the
UK, as well as on practical concerns regarding the enforceability of such practices.
During the course of this Review, these issues have become more prominent.
12.74. In relation to the above criticisms, and recognising the need for information from
service providers outside the country, the focus of these submissions was often on
the development of MLATs.89 This, it is suggested, would be clearer, avoid extraterritoriality concerns, and be more likely to satisfy the conditions of the law. Insofar
as there are criticisms that MLATs are slow or ineffectual, those with whom I spoke
considered that the focus should be rather on improving and securing access through
them rather than finding ways around them.
12.75. Some placed their faith in an international agreement or on international law to ensure
cooperation in data sharing.90 However others recognised that while a UN Convention
or an additional international treaty would be of assistance in regulating international
data sharing, it was both an unlikely event and perhaps unlikely to operate effectively
in the face of alliances and hostilities between states.
Improve oversight
12.76. The oversight mechanisms for investigatory powers received significant criticism in a
high proportion of the submissions I received. Suggestions were made both to
individual oversight mechanisms and to the oversight regime as a whole,91 which was
described by Human Rights Watch as “neither transparent nor comprehensive”.
12.77. Broadly, the submissions I received demonstrated limited trust in the oversight
mechanisms. Several pointed to the attitude to oversight apparent from the Snowden
Documents: in particular that legal advisers had made a note to tell the NSA “[w]e
have a light oversight regime compared to the US”; 92 that the regulatory regime was
a “selling point”;93 and that the legality of OPTIC NERVE “would be considered once
it had been developed”.94 Many thought that the revelations in the last few years,
including but not limited to those contained in the Snowden Documents, should have
been highlighted much earlier by oversight mechanisms.95
88
89
90
91
92
93
94
95
Including those from Graham Smith, the Center for Democracy & Technology, Liberty, and the Global
Network Initiative.
Including Graham Smith, Center for Democracy & Technology and Global Network Initiative.
As set out in M. H. Halperin et al, “Multilateral Standards for Electronic Surveillance for Intelligence
Gathering”, (January 2015), Oxford Internet Institute Discussion paper.
Some submissions, such as those by Dr Andrew Defty and Professor Hugh Bochel, focused almost
entirely on oversight.
“The legal loopholes that allow GCHQ to spy on the world”, The Guardian website, 21 June 2013.
“NSA pays £100m in secret funding for GCHQ”, The Guardian website, 1 August 2013.
“Optic Nerve: millions of Yahoo webcam images intercepted by GCHQ”, The Guardian website, 28
February 2014.
As set out by Peter Gill, the “mass trawling” undertaken by GCHQ should have been set out in the
reports of IOCCO.
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