The British public has made the surprise decision to leave the European Union, and the fallout regarding privacy could be huge. Many British people voted in favour of Brexit because they believe that Britain will be able to better control its laws. The danger, however, is that the sovereignty they wish for will backfire giving parliamentarians the ability to pass legislation that encroach on British citizens’ right to privacy.
On Monday, Theresa May’s much-loathed Snooper’s Charter began being debated in the House of Lords. If passed, the overreaching law would likely come into effect in the coming months. Thankfully, some members of the Lords have already raised concerns about many privacy concerns contained within the draft version of the bill. The worry, however, is that (due to the current political turmoil), the Bill could make it through the Committee and Report stages of the law-making process without sufficient changes having been made.
During the first reading on Monday, Lord Rosser made mention of the Investigatory Powers Bill worryingly chosen words,
‘We have already secured amendments to the bill providing that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists … however, there are still matters outstanding on this point, including the extent to which the bill does or does not provide for the same level of protection for journalists as is currently the case under the Police and Criminal Evidence Act.
There is also the question of the definition of who is and who is not a journalist now that we are in the digital world. This is not about preserving the special status of individuals who work in journalism or the legal profession, or indeed as parliamentarians, but about protecting the public and their ability to raise issues through these channels on a secure and confidential basis.’
While it is certainly positive that the privacy of journalists, lawyers, and MP’s, be considered by the House of Lords: Thankfully the rights of the general public have also been brought up during the first two readings. Lord Strasburger mentioning the problems for encryption that the snoopers’ charter contains,
‘Strong encryption, as the Government have recognised in this House, is vital to our personal security and the integrity of our finance and commerce sectors. If [the bill] were enacted unchanged, innocent UK citizens would not be far behind their North Korean and Chinese counterparts in a contest to be the most spied-on population in the world. The powers in the Bill are very broad and very intrusive–more so than in any of our democratic allies.’
In the wake of the Brexit decision to leave the EU, Open Rights Group (ORG) is calling for the hotly-contested bill to be dropped (for the time being). ORG believes that due to the current political turmoil it would be an unjust time to pass such invasive and overreaching legislation. For that reason, ORG is calling for the Bill to be dropped until after the current Prime Minister has been replaced (David Cameron has resigned and could be gone as early as August). On Monday, Jim Killock, Executive Director of ORG made the following comment,
‘With the current political crisis, we cannot expect that such an important Bill, with far-reaching consequences, will receive the scrutiny it needs. Until this crisis is resolved, and a new Prime Minister is in place, the IP Bill should be put on hold. The UK cannot legislate on matters of national security until its future is clear.’
Brexit and the Snooper’s Charter
So, what is it about the legislation that is causing all the complaints? Firstly, the bill (in its current form) would allow for the mass collection of communications data and the scrutiny (by government agencies) of both private and public databases. Next, the bill would permit the hacking of all British devices and networks and the collection of all citizen’s web browsing histories. One can’t help but agree that the overreaching legislation – which could wind up damaging the UK’s ability to do business with companies within the EU – ought to be left until less volatile times.
ORG’s Pam Cowburn feels that under the circumstances, the intrusive bill will not receive the necessary scrutiny, and alterations, to make it workable by the UK market. ‘While parliamentarians, media, and the public are preoccupied with the outcome of last week’s EU referendum, it’s unlikely that such scrutiny will take place,’ she comments.
Emma Woollacott, an expert on legal and regulatory issues concerning technology, agrees wholeheartedly. She wrote last week that ‘more than three-quarters of the UK’s economy is based on services, and much of that involves the transfer of data. Digital industries represent 10 percent of Britain’s GDP. And while the UK has historically been seen by many multinationals as a gateway to Europe, that’s a gateway that could now be slammed shut.’
One can’t help feeling that due to the surprise decision to leave the EU (that was decided by a majority of just 1%), it would be wise if the bill was put on hold. However, it is likely that the government will ignore calls for delays to the process, especially because it is the government’s wish to gain the new powers as soon as possible. As such, the current political turmoil may be seen as an advantage by Theresa May, who no doubt hopes to sneak the legislation through during the current legal proceedings – mostly unnoticed by the media.
As it stands, the Data Retention and Investigatory Powers Act (DRIPA) is set to be ruled on by the European Union’s Court of Justice CJEU. ORG is concerned that due to the Brexit vote, however, the British government could decide to ignore the CJEU’s decision. Choosing to pass the legislation despite any concerns that may be raised in the EU court.
Cowburn points out that should the British government decide to overlook the ruling of the CJEU, the British public could find themselves out of the EU (and its protective oversight) far sooner than the two years that it is predicted it will take Britain to officially Brexit,
‘In 2015, the High Court ruled that parts of DRIPA were unlawful; the Government appealed and the case was referred to the CJEU. Their Judgment will have implications for the data retention powers outlined in the IP Bill. In the short term, as negotiations proceed to leave, there may be a temptation to ignore CJEU rulings. However, this would be highly unwise, as it would leave the UK open to swift ejection from the EU on grounds of failing to abide by our treaty obligations.’
Just as worrying as the snoopers’ charter, is the fact that the home secretary Theresa May has already called for the UK to pull out of its membership of the European Convention of Human Rights. As it stands, Britain would remain in the convention even if it leaves the EU. This is a favorable option considering the loss of oversight that Britain already faces by choosing Brexit. As such, any decision to leave the human rights convention should be strongly opposed by the British public: Who should otherwise be happy to be left at the mercy of an all-powerful government that answers to no one but itself.
Anyone concerned about the Investigatory Powers bill is strongly encouraged to join ORG’s campaign in favour of amendments and delay to the lawmaking process. With the UK’s decision to Brexit (which leaves the UK incredibly vulnerable) the time to act is now!