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A Democratic Licence to Operate
surveillance among its member states. Beyond that, a number of reviews have been
conducted and guidelines suggested through the UN, the EU and the Council of Europe
to suggest harmonisation measures that would bring law, practice and the culture of
security closer together between states that are still catching up with the implications of
Internet technology on their human rights as well as their security concerns.50
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In addition, civil-society organisations in many Western countries have led a number of
transnational initiatives suggesting more harmonised policy responses. Such initiatives
have been said to constitute ‘a growing array of international and European soft law
on the oversight of security services’ although there are ‘relatively few binding, hardlaw principles’.51 Calls have been made for an ‘international social compact’ to guide
the harmonisation of laws and practice within a multinational ‘digital society’ and the
UN and the OECD, among other international organisations, have offered principles
and resolutions that may help harmonise different laws, policies and cultures between
countries prepared to co-operate.52 So far, few of these calls have affected the
jurisdictional complexity that Western governments face.
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The legal challenges are evident. RIPA 2000 was intended to apply to CSPs operating within
UK jurisdiction. The Data Retention and Investigatory Powers Act 2014 (DRIPA) provided
explicitly that interception warrants could be served on any CSP operating within the
UK, wherever their material was transmitted or stored. But it remains difficult for UK
authorities to operationalise the international provisions of these pieces of legislation.
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In its 2014 report on the terrorist murder of Fusilier Lee Rigby, the ISC expressed the
problem forcefully saying that, ‘none of the major US Communication Service Providers
... regard themselves as compelled to comply with UK warrants obtained under the RIPA’.
DRIPA, they said, ‘has represented some progress’ but had not solved the problem for
the UK, which ‘is acute’.53 They added that, ‘In some circumstances, overseas CSPs may
choose to comply with a request … even though they do not consider themselves bound by
UK legislation’.54 This was welcome but not regarded by the ISC as an adequate solution.
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Jurisdictional issues are in many cases handled by governments through mutual legal
assistance treaties (MLATs) in which requests for bilateral or multilateral assistance
between partners are handled through established processes. In the current climate, the
50. Council of Europe, Commissioner for Human Rights, ‘Democratic and Effective Oversight of
National Security Services’, Issue Paper, Council of Europe, 2015.
51. Ibid., p. 33. Such governmental and private initiatives have found expression in the work
of UN special rapporteurs on human rights and counter-terrorism; the Council of Europe’s
Venice Commission; the European Parliament’s LIBE Committee; the ‘Ottawa Principles’ of
2006 or the ‘Tshwane Principles’ of 2013.
52. Global Commission on Internet Governance, ‘Towards a Social Compact for Digital Privacy
and Security’, CIGI/Chatham House, 2015.
53. ISC, Report on the Intelligence Relating to the Murder of Fusilier Lee Rigby (London:
Stationery Office, 2014), p. 7.
54. Ibid. p. 133.