Investigatory Powers Bill

The Investigatory Powers Bill would overhaul the framework governing the use of surveillance by the intelligence and security agencies and law enforcement to obtain the content of communications and communications data. It follows three important reports published in 2015, all of which concluded that the law in this area is unfit for purpose and in need of reform, and a draft Bill that has been subjected to pre-legislative scrutiny by three parliamentary committees.

Many of the capabilities for which the Bill provides have been in use for a number of years. Some are openly provided for in the Regulation of Investigatory Powers Act 2000, whereas others have been only recently avowed, having operated on the basis of vaguely drawn provisions in legislation governing the general powers of the security, intelligence and law enforcement agencies.

Capabilities

The capabilities for which the Bill provides are:

• the interception of communications,
• the retention and acquisition of communications data,
• equipment interference, and
• the retention and examination of bulk personal datasets.
• Interception, acquisition of communications data, and equipment interference powers are provided for both on a targeted basis and in bulk.

The Government have said that the only new capability provided for by the Bill is the ability to require retention of Internet Connection Records, a kind of communications data that reveals the websites an individual has visited.

Oversight

The Bill would also reform the oversight regime for the use of these powers, replacing the three existing Commissioners with a single body of Judicial Commissioners led by the Investigatory Powers Commissioner. For the first time, these Commissioners would bring an element of judicial oversight to the process of issuing warrants to the intelligence services.

Debate

The Bill, and the powers for which it would provide, raise questions of profound importance. These include:

• the balance to be struck between privacy and security;
• the extent to which Parliament, and the public, should be aware of conduct exercised on their behalf; and
• the trust that should be placed in the agencies and Government not to abuse powers that have the potential to be deeply intrusive.

Debate around these issues has been heated. Some believe that intrusive capabilities should only ever be exercised on the basis of reasoned suspicion, arguing that this reflects long standing British legal convention. Others take the view that an unprecedented terrorist threat, coupled with a constantly evolving technological landscape, mean that the agencies tasked with protecting the public should be endowed with whatever capabilities they believe necessary in order to fulfil that role.

The Bill also has important implications for the technology industry, on whose cooperation and expertise the exercise of investigatory powers at times depends. Industry has raised concerns about the feasibility and cost impact of the proposed measures, and the competitiveness of the UK’s technology sector.