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UK’s emergency surveillance bill “defies belief”

Edward Snowden has given his verdict on the UK’s Data Retention and Investigatory Powers Bill (DRIP) in an inteview with the Guardian, which will be published in full this Thursday, 17 July.

Edward Snowden

In a video excerpt from the full interview, Edward Snowden says:

Well what’s extraordinary about this law being passed in the UK is that it very closely mirrors the Protect America Act 2007 that was passed in the United States at the request of the National Security Agency, after the warrantless wire-tapping programme, which was unlawful and unconstitutional, was revealed.

In any circumstances to pass an emergency law, when we’re not in a time of total war – we don’t have bombs falling, we don’t have U-Boats in the harbour – and yet we’re being told that if we don’t give the government new authorities immediately, without any debate, just taking their word for it. And this is despite the fact that the self same authorities were just declared unlawful by the European Court of Justice. [We’re being told] that we’re going to pay a price.

Well is it really going to be so costly for us to take a few days to debate where the line should be drawn about these authorities and what really serves the public interest? If these surveillance authorities are so intrusive, so invasive that courts are actually saying that they violate fundamental rights, do we really want to authorise them on a new, increased and more intrusive scale, without any public debate at all?

The European ruling

The Bill is a delayed and cosmetic response to a ruling made by the European Court of Justice on 8 April this year, which struck down the European Data Retention Directive. This 2006 law obliged national governments to pass laws ordering ISPs and telecommunications companies to store their citizens’ internet and telephone metadata for a period between 6 and 24 months and make this data available to law enforcment and the security services.

The Directive was initiated while the EU’s rotating presidency was held by the UK. Revelations from the documents disclosed by Edward Snowden include the efforts made by Five Eyes partners to weaken privacy protections overseas. Edward Snowden drew specific attention to this dynamic in testimony he gave to the Council of Europe, coincidentally also on 8 April:

What I can say is that it’s now established – or at least has been admitted in the United States on a number of occasions – that this sort of legal exchange, legal advocacy, legal advisement campaign is very well funded. It’s seen as furthering the national interest of the United States and because of that I expect it to continue…

I know that journalists have agreed this is in the public interest and some of these countries include Germany, Sweden and The Netherlands. The UK is not just a target of it but a willing participant.

April’s ECJ judgment gives EU member states the opportunity to move their national laws in a more privacy-minded direction; in some (Germany and Romania), data retention laws had already been declared illegal in national constitutional courts. The UK sits on the other end of the spectrum: as a member of the Five Eyes alliance, it has a history of granting its security services a very broad mandate, at the expense of its citizens’ privacy, with very weak oversight mechanisms.

The proposed UK law

DRIP constitutes a cosmetic response to the ECJ judgment because, while technically fulfilling the UK’s obligation not to operate under the existing law, it changes little of the substance of the law struck down by the European court. In fact, in some respects – for instance in asserting extraterritorial authority over telecommunications providers outside the UK – DRIP in fact represents an increase of existing powers. This impression has been bolstered by the release of the UK government’s own impact papers, which show that the Bill would result in an increase in spending on surveillance.

The Bill is also being fast tracked through the British Parliament with minimal debate and the backing of the leadership of the three largest political parties, using powers usually reserved for national emergencies – an aspect of the legislation that has attracted much criticism. NGOs in the UK are campaigning for proper scrutiny of the legislation which will otherwise complete its journey through Parliament by the end of the week.

In the meantime, the UK government’s ultimate authority to make this law may not stand up to legal challenge. A number of concessions in the Bill indicate that, even in the country where the response to the Snowden revelations has been perhaps the most muted, areas of weakness in the country’s surveillance laws have hit home. Some of those weaknesses are currently the subject of legal cases in national and European tribunals; one of the major cases is in fact being heard this week.