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A Democratic Licence to Operate
there is a reasonable public expectation that the interception of communications,
broadly defined, should only be conducted in cases of national security, to prevent or
detect serious and organised crime, or in certain other areas which would have to be
closely defined and agreed by Parliament.
5.43
It is not possible to keep the public safe without law-enforcement agencies and SIAs
having access to certain types of information. Bulk data collection is considered in more
detail below, but there was agreement among Panel members that there should be
provision to allow communications data to be retained by CSPs for a certain period of
time and under specific conditions and safeguards, and that these agencies should be
able to access it under legal and properly authorised circumstances.
5.44
Recognising the significant benefits that increased levels of encryption bring, the ISR
Panel are also cognisant of the fact that sophisticated data encryption and increased use
of end-to-end encryption by Internet firms will also have serious consequences for lawenforcement agencies and the SIAs.
5.45
We do not believe that the police, law-enforcement agencies and SIAs should have
blanket access to all encrypted data, by legally requiring the handover of decryption
keys, for example; however, in certain circumstances data should not be beyond the
reach of the agencies. We agree with Anderson in his recommendation that in the digital
world as in the real world, no-go areas for intelligence and law enforcement should
be minimised. There should not be parts of the Internet or means of communication
that criminals can use, but to which law enforcement are unable to seek access. For
instance, it must be possible to seek access to evidence if it will help to convict a known
criminal, or if it will protect the public from an imminent threat. Access may not always
be guaranteed but there must, in principle, be a right to seek access in accordance with
the principles the Panel have outlined.
5.46
In broader terms, new and emerging technological developments will continue to
challenge the agencies and the way in which they operate. Ministers, civil servants
and regulators all have a role to play in ensuring not only that the agencies remain
within their remit in responding to these new challenges, but also that they have the
appropriate capabilities and resources to do so.
5.47
We refer in Chapter III to the broader national challenge that digital technologies pose to
the education and training of the population as a whole. There is no room for complacency
and these challenges should be clearly acknowledged. The Panel are particularly
concerned that levels of technical understanding among policy-makers and legislators
are seriously deficient and the best use is not being made of the technical expertise
already available. Support and advisory bodies, such as the Technical Advisory Board
and Communications Data Steering Group, are not being exploited to their full potential.
Government officials must have sufficient understanding of relevant technical issues to
both assess the needs of the agencies and provide credible oversight of their activities.