In August, the UK’s Independent Reviewer of Terrorism Legislation, David Anderson QC, released his “Report of the Bulk Powers Review”. He was asked to undertake the review after concerns were expressed about the Snooper’s Charter – the Investigatory Powers Bill – and the provision it makes, in Parts 6 and 7, for four bulk powers:
1) bulk interception
2) bulk acquisition
3) bulk equipment interference
4) bulk personal datasets
The defining feature of these bulk powers is that they allow public authorities to collect, store and have access, for specified purposes, to large quantities of data, a significant portion of which is not associated with current targets (Sections 1.5-1.7 of the Report). The four powers are described in detail in chapter 2 of the Report.
As I noted in an earlier post, in March 2016, the Shadow Home Secretary questioned whether the Bill justified these bulk powers because the “routine gathering of large quantities of information from ordinary people presents significant privacy concerns, and points to a need for the warrants to be as targeted as possible.” Similar concerns were voiced by Dominic Grieve QC, the chair of the Intelligence and Security Committee, who said that bulk datasets “largely contain private information on large numbers of people of no relevant or legitimate interest to agencies at all.”
The review considered whether there was an operational case for the four bulk powers (but, as the Report notes, this is ‘not virgin territory’ and related questions have been considered by others: see Report, chapter 3 and Section 9.10). The review was conducted with the assistance of a team of experts who considered highly classified evidence, including:
- 60 detailed case studies, with the associated intelligence reports, provided by MI5, MI6 and GCHQ;
- Internal documents, regarding the utility of the bulk powers, from each of these agencies and
- Interviews with 85 intelligence officials, including on whether other methods could be used to achieve the same result.
The Report’s key conclusions are as follows:
- There is a proven operational case for three of the bulk powers already in use – i.e., (1), (2) and (4): see Report, chapters 5, 6 and 8. These powers are already used by MI5, MI6 and GCHQ in a variety of contexts ranging from counter-terrorism to child sex abuse. Although other techniques could sometimes (not always) be used, they would be less effective, more dangerous, more resource-intensive, more intrusive or slower.
- There is a distinct, but not yet proven, operational case for (3): see Report, chapter 7. Unlike the other bulk powers, the bulk equipment interference power has never been used but an operational case for it has been made out “in principle” (Report, Section 7.36). It requires the most rigorous review because (a) it can recover data that has never been sent anywhere; (b) it is untried; (c) it can cause lasting harm to networks and devices and (d) there is a fast-evolving range of offensive techniques that can be applied.
- The Bill should be amended to provide for a Technical Advisory Panel of independent academics and industry experts, to be appointed by the Investigatory Powers Commission and to advise on the impact of changing technology on the exercise of investigatory powers and on how the agencies could reduce the ‘privacy footprint’ of their activities (see Report, Sections 9.16-9.32).
The Report was welcomed by Theresa May but the Shadow Home Secretary has expressed concern that she has not accepted the Report in full and, in particular, that she has not accepted the recommendation regarding the Technical Advisory Panel. The Report has been criticized by NGOs. The Open Rights Group described it as presenting “only one side of the story” whilst Liberty has criticized the scope of the review (“by assessing the usefulness of the powers the review failed to establish a proven case for the necessity of the powers”) and said that the cases made in favor of bulk powers (3) and (4), i.e. bulk equipment interference and bulk personal datasets, “are deeply disturbing, in conflict with fundamental human rights principles, and highly likely to be unlawful”.
No doubt the Report will be referred to in the next stages of parliamentary scrutiny of the Bill; it is being considered by the House of Lords.