Tuesday 30 April 2013

And now they’re being serious

Yesterday, the Open Rights Group adopted a more serious approach to address the issues faced by the law enforcement community, by publishing a report on digital surveillance. Written by a number of people who also gave evidence to the Joint Committee on the Communications Data Bill last year, it calls for more targeted, more transparent and more accountable surveillance laws, and offers a number of recommendations for how to achieve this. 

It’s always useful if people who oppose various measures offer alternative suggestions. And this document certainly does indicate that the civil society groups who opposed the Government’s previous proposals are keen to continue the discussions about sensible surveillance laws in the digital age. The calls are for greater transparency, greater accountability, and greater oversight. Just how this can be achieved, while not drawing too much attention to significant capability gaps that might be exploited by criminals before they can be plugged, is an issue that requires careful consideration.

Some investigators may feel uncomfortable that these groups have very different views to their own on what techniques are necessary in today’s society. But these views do need to be considered by the Government – and when they are felt they are inappropriate, explanations should be provided as to why this is considered to be the case. 

 In a thriving democracy, where citizens are governed by consent and policed by consent, it is necessary to have the occasional debate about just what it is that citizens are consenting to. 

This report provides a useful way of continuing the debate. Some of the recommendations are unlikely to be implemented – for reasons which, perhaps when they have been made public, will be accepted by a large number of people.  But it’s always useful to maintain amicable and constructive discussions between all stakeholders on matters as important as these.

The ten recommendations are:
  1. Hold an overarching review, potentially through a Royal Commission, to properly study surveillance in the digital age.
  2. Judicial oversight of requests for intrusive communications data, in particular for all traffic data requests.
  3. Choose ‘data preservation’ rather than blanket data retention. Include quick response and emergency processes, and means to intelligently and accountably identify targets.
  4. Create a unified Surveillance Commissioner capable of carrying out a strong, independent audit with “multi-skilled investigators including human rights and computer experts.”
  5. Reject vague proposals, such as those in the draft Communications Data Bill, for automated, pervasive analytics tools designed to trawl through and across datasets.
  6. Provide stringent penalties for misuse of either powers or data.
  7. Individuals should be notified by default of a decision authorising the request for their communications data.
  8. Invest in law enforcement’s capacity to use and analyse the data already available to them.
  9. Lift the ban on the use of intercept evidence in court.
  10. Use the International Principles on Communications Surveillance and Human Rights developed by Privacy International and other groups as a template for future laws.