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Britain takes the Uganda Road to legalise and extend state surveillance

18.5 blog by kind permission of Barritt & MayBy Simon Davies

In a rare moment of political unity, reminiscent of the days that followed the 9/11 attacks on the US, all three major UK parties have signed onto “emergency” legislation that will force Internet and phone companies to store data on the activities of all their customers.

Borrowing from the techniques of some of Britain’s Commonwealth members in Africa, the “Data Retention and Investigation Powers” bill will be pushed through in the next week without formal public comment or parliamentary scrutiny.

Happier days: the one moment when Cameron and Clegg could engage in mutual fantasy about a fairer Britain

Happier days: the one moment when Cameron and Clegg could engage in mutual fantasy about a fairer Britain

To be clear, there is no actual security “emergency” as such, just emergency provisions. The “emergency” is that the previous EU-wide legal regime requiring ISPs and phone companies to store data en masse on innocent people was recently struck down by the European Court of Justice as unlawful.

Non-UK readers should also go onto red alert over a lesser-known provision in the new law which legitimates Britain’s extensive spying activities on overseas targets, bringing it into full alignment with parallel powers of the NSA and (presumably) permitting the two countries to swap data on their own nationals. This move may in part have been motivated by a series of challenges to the legal basis for the activities of Britain’s signals intelligence agency GCHQ.

At a more domestic level, UK communications providers are worried that they could be exposed to legal action because of the unlawful mass surveillance that they were party to – even though on the whole they wanted no part of it.

Well, more precisely, many comms providers wanted no part of it unless the government picked up all the costs (older readers familiar with US law may recall the CALEA legislation that forced communications companies to make their technology wiretap friendly – with much the same response from companies).

There is a view that if the liability for unlawful surveillance rested entirely with the government, there would be no appetite for this legislation. Britain long ago elevated its institutional vandalism of EU legal rights from a science to an art, and then to a sport.

Britain long ago elevated its institutional vandalism of EU legal rights from a science to an art, and then to a sport.

So, having created an unlawful mass surveillance infrastructure, the government now intends to protect that investment by using the ruse of an “emergency”. The emergency will expire in 2016 when, the government hopes, a more lawful mass surveillance infrastructure can be put in place.

The original EU surveillance regime was shut down in part because governments failed to adequately identify the purposes for collecting all this information or even to define the terminology used to justify it. Ironically, those same governments can – it seems – employ “emergency” measures to circumvent the court ruling even though the concept of “emergency” is even more poorly defined than the conditions in the regime that was overturned.

Well, that’s one view. The government says it is heeding the ECJ ruling by putting all these surveillance activities onto a more solid legal footing. This is what happened with the notorious Regulation of Investigatory Powers Act under the previous UK administration, which was said to place surveillance on a legal footing but which in fact merely legitimized the activities.

The UK initiative casts a rather sobering light on the ECJ ruling, which many commentators had hailed as a breakthrough in the struggle against mass surveillance. As far as the UK is concerned, that ruling merely provided free advice on how to make a mass surveillance infrastructure legally sustainable.

Sensing the need to placate potential dissidents (including its own junior partner the Liberal Democrats, who had come to power in part on the promise that they would put a stop to mass surveillance) the government has pledged a number of safeguards.

First among these is a “Privacy and civil liberties oversight board”. This is reminiscent of the “Privacy and civil liberties oversight board” established by the US government to raise the alarm in the event of rights violations in the pursuit of terrorists, Surprisingly, the organization that kept the lid most tightly on disclosing those violations was the “Privacy and civil liberties oversight board”, which never breathed a word about what had been going on down the road at the NSA. Either that or it had no clue what was going on down the road.

Either way, the prospects aren’t looking good for oversight by a body that the Home Secretary insists is an ideal model for Britain.