The news that Khaled Masood used the messaging service WhatsApp just minutes before he killed five people in a terror attack in London last month has reignited the heated debate over security and privacy in the UK.
Less than four months prior, the UK parliament approved “the most extreme surveillance law ever passed in a democracy” – the Investigatory Powers Act (IPA). Passed into law on 29 November 2016, the IPA gives the British state unprecedented access to the communications of citizens.
It will force communications companies to keep records of online activity for up to a year, enabling the 48 goverment agencies that have access to this data – such as the police and the security services, but also the Home Office, the Department for Work and Pensions and the Gambling Commission – to build a detailed picture of anyone’s private life.
The human rights campaign group Liberty started proceedings on 28 February to challenge the legislation. It had approached the government in December, applied to the High Court for permission to proceed after the government failed to respond.
Silkie Carlo, a policy officer at Liberty, said in a press statement: “The powers we’re fighting undermine everything that’s core to our freedom and democracy – our right to protest, to express ourselves freely and to a fair trial, our free press, privacy and cybersecurity. But with so much public support behind us, we’re hopeful we will be able to persuade our courts to restrain the more authoritarian tendencies of this government.”
In December, Liberty won a challenge to the temporary emergency law that preceded the IPA in the European Court of Justice. The court ruled many of the mass surveillance aspects of the law unlawful – such as bulk hacking of devices that campaigners fear leaves them vulnerable to further attacks, interception of communications – content en masse without requiring suspicion of criminal activity, and the acquisition of vast datasets that enable government agencies to build a detailed picture of the population’s health, political leanings, sexuality and religion.
The government claims the new legislation is necessary to challenge the opportunities the internet provides for terrorists, and has not yet announced whether it will appeal the ruling. But the IPA does not address the concerns judges had about the emergency law, namely the general and indiscriminate retention of all communications data without suspicion of a crime and without notification. Judges were also troubled that the police and public bodies can authorise their own access bar some exceptions: for example, for obtaining journalists’ sources, a judicial authorisation is needed.
"Threat to press freedom"
But in spite of the caveat the government hails as protection, journalists fear the effects of the legislation.
"The new legislation is a threat to journalism and press freedom, and it enables the state to have access they shouldn’t have,” says Sarah Kavanagh, senior campaigns and communications Officer at the National Union of Journalists (NUJ).
“There are no open court procedures: journalists can’t put a case to the authorities as to why they should not secretly access journalists’ electronic communications including diary, contact book or emails."
Under previous legislation, when the authorities wanted to request photos or footage, journalists would be contacted in advance of the application and they had the opportunity to challenge the request. Source protection remains a fundamental principle of ethical journalism but the government has used the changes in technology as an excuse to change the law.
Kavanagh tells Equal Times that it is also important to protect the impartiality and independence of journalists, and they should not be seen as a conduit to the authorities by handing over their sources or footage to the police after covering events such as demonstrations.
"We were arguing there needs to be extra safeguards and protections before the authorities can access electronic information in secret and from journalists," she says.
The NUJ is not taking action over the IPA, but it is currently exploring the avenues available for challenging another piece of legislation that is currently being drafted by the Law Commission, a statutory independent body for law reforms. The existing Official Secrets Acts were written between 1911 and 1989 and reflect a pre-internet world where the geographical targets that needed protection from “enemies” were primarily military. The Law Commission is recommending the replacement of the Official Secrets Acts with a new law on the protection of official data, and is running a public consultation on the issue until 3 May.
However, campaigners are deeply concerned that the updated law provides for much tougher punishments for whistleblowers and leakers. “These oppressive plans have no place in a democracy,” says Liberty director Martha Spurrier on the proposed legislation.
“They would skew the balance even further in favour of state secrecy, irrespective of potentially profound public interest. By increasing the prospect of prosecutions for revelations that are merely embarrassing or inconvenient, they would silence whistleblowers and gag our press.”
Kavanagh from the NUJ points out that the legislation would also affect journalists publishing public interest stories that rely on leaked information, leaving them vulnerable to prosecution. All this adds up to a worrying picture, she says.
"They don’t have to listen to our conversations to know that we have a connection – this is known as ‘metadata’ – and to be able to see all those connections of people has profound impacts on democracy, civil liberties and human rights."