Waking Up to the UK’s Investigatory Powers Act

On 29 November 2016, Her Majesty gave the royal assent to the most encompassing surveillance powers the United Kingdom has ever seen. The Investigatory Powers Act 2016 (IPA) — or ‘Snoopers’ Charter’ — will pass into law before the year is up, three and a half years since Edward Snowden began making revelations about the extent of extra-legal mass surveillance by the NSA and GCHQ under the secretive Five Eyes intelligence alliance. The act of curtailing what might once have been thought basic political freedoms — to anonymously read what you want in your living room, say — has passed by with astonishingly little public debate. Why has the threat of these Investigatory Powers failed to galvanise both the parliamentary and the popular imagination, and what should we be doing now?

“If our current arrangements, about liberal democracy, and the rule of law, and restraint on official power — if all those assumptions turn out to be wrong, then we have created an infrastructure for really serious social and political control,” cautioned professor John Naughton, speaking to openDemocracy at an event in Cambridge which assessed the act’s implications. Until Brexit and Trump, these arrangements seemed more invulnerable than they do today. Back then, Naughton says, those in government told him “‘oh my dear boy, this is a liberal democracy. These things don’t happen’…Well, the day after Brexit, we lost our government — the whole bloody lot — and for three or four days, it looked as though we would have a lunatic in charge. And in the case of the United States, it really happened.”

The UK government is now legally authorised to do much of what it has been doing anyway for 17 years, since the IP Act incorporates on a clean sheet of legislation the most sweeping surveillance powers ever seen, not just in the UK, but in any western European nation or in the United States. Many regard the codification itself as good news — the powers of the secret state are above board for the first time in 500 years, and some oversight mechanisms are in place.

But this is paltry consolation. Here we have the consolidation of spying powers for which no evidentiary security-enhancing basis has been provided. For the first time, the UK government has the legal authority to hack citizens’ devices in bulk, even when they are overseas, in what it calls “equipment interference”. Internet service providers are now required by law to collect and retain details of every website user’s visit over the course of a year, and to cooperate noiselessly with the government upon request. 48 agencies including the Food Standards Agency, Ofcom, and various police bodies can access these records. The IP Bill was rushed through according to an incredibly ambitious timeline in order to replace DRIPA, which has a 31 December sunset clause — but that is only one small part of the legislation we have ended up with, and there’s no sunset clause on any of that.

IPA attempts to enshrine legal provisions for internet capabilities which are constantly evolving, which partly explains their extraordinary breadth. This mass surveillance is gaining a legal basis at a time when hacks and data leaks are commonplace and enormous — such as the hack Talk Talk suffered last year after a 17-year-old boy stole the data of 157,000 customers. It also ploughs the furrow for a newly emboldened technocratic elite, as demonstrated by The Intercept’s recent revelations about major tech companies’ apparently near-uniform willingness to cooperate with the Trump administration in building a Muslim registry.

Still, there are some protections: if, for instance, you wish to intercept the communications of an MP, you have to get more than just the home secretary’s permission — the prime minister also has to agree. An important check and balance, if the current prime minister doesn’t happen to be the former home secretary who drafted the legislation in the first place, or Boris Johnson. It’s not just members of parliament we need to be worried about: it’s anyone who takes drugs; it’s anyone who opposes government — or might do in future — from whistleblowers to investigative journalists to members of radical political groups; it’s people who legally challenge unfair treatment or unfair laws; it’s all Muslims; it’s people who aren’t white or aren’t British.

An important check and balance, if the current prime minister doesn’t happen to be the former home secretary who drafted the legislation in the first place…

The panel was largely silent about the ways in which surveillance is embedded in the politics of empire, and how contemporary surveillance practices expand powers that were always already trained on ‘the enemy’ — targeting not individual suspects, but entire communities, on the basis of race, religion and ideological affiliation. An effective propaganda campaign painted the IP Bill as counter-terrorism legislation, when in fact only 1% of interceptions in 2015 under its predecessor RIPA were used for counter-terrorism, and, in the US, the only Five Eyes nation where expert panels have inspected the necessity of such powers, no “bulk data sets” contributed to a single counter-terrorism investigation.

Theoretical grounds for surveillance laws are threefold: the protection of national security; the prosecution of serious crime; and safeguarding the economic well-being of the nation. “Given that we live in a very divided society, with great inequalities, it seems strange that we might be compromising the privacy of many citizens in order to ensure the prosperity of a few,” urged Naughton. There is also the distinct possibility, already present, that the right to privacy will more and more become something you can buy — in the form of encryption, or certain service providers — which would mean sacrificing only the privacy of many poorer citizens at the diktat of a prosperous few.

The state was also able to acquire these powers because debating digital freedoms and freedom of speech is often seen as the lofty pastime of people who don’t have any more pressing concerns: “EM Forster said many years ago that freedom of speech is regarded by most people as a hobby of those who have enough to eat, and I think there’s a kind of truth in that… those of us who fret about this stuff are effectively announcing that we are part of the liberal elite,” Naughton told me. Abstract public image notwithstanding, it is incontrovertible that the freedoms at stake in the Investigatory Powers Act — though its impunities will no doubt be felt unevenly — affect everybody, and cut to the heart of questions about what kind of society we want to inhabit.

These ideas also drive at the political importance of how legal concepts are framed. The commonplace ‘zero sum’ formulation of an inevitable trade-off between security and privacy is, the panelists in Cambridge argued, a false dichotomy. “There’s this assumption that the only way of getting more security is to give up privacy, and that’s just wrong,” Liberal Democrat Julian Huppert argued: there are many things you can do in the name of security that jeopardise privacy and security, such as breaking encryption, and many things you can do to strengthen both. Huppert deplored the chaos in Labour, which combined with the chaos of Brexit to ensure the bill didn’t receive a fair hearing. In the final analysis, the Labour Party displayed a “consistent authoritarianism” — eventually voting the bill in because they received assurances about protections for trade unionists. “Of course you protect people who are in trade unions from suspicion-less, unwarranted surveillance — but you do that for everybody else,” Huppert said.

Professor David Vincent described the final act as “rather an odd document” for the way it sets out at its outset a robust notion of privacy, only in effect to override it going forward: “what’s completely unclear,” he argued, “is how in practice we’re going to articulate those segments in the privacy section, [along] with the rest of the powers that the government now has. There is a requirement for proportionality that if the authority you’re seeking is so insignificant that privacy overrides that, then you shouldn’t seek it.” This reflects what panelists described as the act’s subjection to various reports and consultations, and a final incorporation of these recommendations in tweaks, perhaps, but not in spirit.

While there are things people can now do to protect themselves — from signing this parliamentary petition to repeal the act, to enacting end-to-end encryption, downloading the Tor browser, and getting your own virtual private network — these measures are not a likely match for the brawn of the state, which will try to catch up with the methods of people acting in clandestine ways. What’s more, a technological response fails to confront what’s at the heart of state surveillance, which is the arrogation of power, an appetite that feeds off itself.

The government squirrelled this invasive series of powers into law by drumming up racialised fears which enabled the white majority to feel they would not bear its brunt. Whether or not Muslims will disproportionately experience the force of IPA’s invasions, as should be expected, it is clear that until we have a broad-based politics that repudiates the liberal construction of Muslims as the ultimate enemy, and the racist, dualistic view of the world as a fight between us and them, we will not achieve a solidarity muscular enough to reject the politics of fear.