Monday 20 July 2015

Peeping into secret directions

In his latest report, the Interception of Communications Commissioner has shed more light on the workings of a secret piece of legislation than has any other public official at any time during the past 30 years.

Students of telecommunications law will scan with considerable interest the few pages he’s devoted to Section 94 of the Telecommunications Act 1984, which enables ministers to give secret directions to Communication Service Providers.

Section 94 provides that the Secretary of State shall lay before each House of Parliament a copy of every direction given under this section unless he is of opinion that disclosure of the direction is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of any person. Section 94(5) states that a person shall not disclose, or be required by virtue of any enactment or otherwise to disclose, anything done by virtue of this section if the Secretary of State has notified him that the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of some other person.”

No details on what directions have been issued, or indeed if any have ever been withdrawn, are publicly available. For the first time, Sir Anthony May explains that his office had previously provided limited oversight in respect of one set of Section 94 directions, but the report offers no indication as to whether other sets of directions still exist.

Sir Anthony’s comments are helpful in that the public now knows that directions can: be given by any Secretary of State and do not automatically expire after a certain period. There does not appear to be a comprehensive central record of the directions that have been issued by the various Secretaries of State.”

Accordingly, Sir Anthony recommends that future legislation should require his office (or successor oversight body) to be informed about all existing directions in order that they can be properly overseen. While law students may have assumed that Home Office ministers would have been aware of all directions that had been imposed on Communication Service Providers, Sir Anthony’s comment raises the intriguing possibility that, say, Foreign Office ministers might well have issued directions to assist the work of MI6, without necessarily telling the Home Office ministers who were responsible for overseeing the work of MI5.

The relevant Communication Service Providers could then have been placed in the invidious position of providing various services for different intelligence agencies, trying really hard not to tip each agency off about what they were doing for another agency. If this sounds like the plot of a French farce, you’re not mistaken.

I suggest that, in addition to the comprehensive central record of all directions being held by the Interception of Communications Commissioner, all directions should also be formally reviewed at 6 monthly intervals. This would at least remind ministers that they were accountable for ensuring that is was still necessary for the directions to be in place, and for their existence to remain a secret.

As this is Sir Anthony’s last report before stepping down, I want to record my appreciation for the way he has permitted his officials to put their heads above the IOCCO parapet and engage with the public in a much more open manner than was considered appropriate by previous Commissioners. I do hope that his successor will have a similar view as to the public role his officials should play. The IOCCO is seen as an effective regulator, winning respect from a wide range of privacy champions.

Let’s wish that the good work will continue, by the IOCCO or whatever successor organisation is created to oversee the surveillance community.