The Intelligence and Security Committee has published its eagerly
awaited (28 page) report on how the proposals in the Government’s draft Communications Data Bill might affect the
use of communications data by the intelligence and security agencies.
It complements
the more wide-ranging (101 page) report that was published last year by a Joint
Parliamentary Committee that I worked with.
It won’t
come as a surprise to anyone to learn that the conclusions are very similar. Both reports considered that the Bill should be
much more specific about the records that providers should (generally) be required
to retain.
The
ISC, naturally, is keen that people who may be of interest to the agencies are not
given an opportunity to learn precisely where the gaps in capability are. If
targets knew where the gaps were, they might be exploited to evade detection.
Accordingly, the ISC considers that notices to particular providers, requiring
them to retain particular date types, should remain secret.
That
may be highly desirable as far as the agencies are concerned, but in many cases
the records, if they exist, will eventually be produced as evidence in legal proceedings
that relate to criminals who are of no interest to these agencies. How can a capability
by a provider to retain particular records remain a secret for the agencies, but
be public knowledge for other parts of the law enforcement community, the
courts – and also for customers when the exercise their subject access rights
under data protection legislation?
It is
not at all easy, in an internet age, to tinker with the transparency agenda.
Perhaps there is a trade off between short term dips in operational capability
and greater public pressure on a provider (or providers) to start to keep records
that, for commercial, technical or legal reasons, are not currently kept.
I would
expect the Government to adopt an approach that allows a greater, rather than a
lesser, degree of transparency. All citizens expect the State provide a certain
degree of public security, and for that the State needs the tools that are
necessary to enable it to carry out this role. But citizens also want to be
confident that the State is only doing what is necessary and what is
proportionate.
Now
that this report has been published, it shouldn’t be long before we hear
about the Government’s revised plans to ensure that those who have the capability
to inspect our communications remain fully accountable.
Source:
Access To
Communications Data By The Intelligence And Security Agencies, Cm. 8514
http://www.parliament.uk/documents/joint-committees/communications-data/CM208359DraftCDBill.pdf
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