Saturday, 1 March 2014

Tweaking surveillance laws won’t necessarily lead to many changes


I’ve just declined an invite to attend a keynote speech on surveillance that Yvette Cooper, the Shadow Home Secretary, will be delivering on Monday in Central London. Instead I’ll be with some 700 chums at the Information Commissioner’s Data Protection Practitioner Conference in Manchester.

Evidently, Yvette Cooper’s speech will outline the challenges of navigating a new digital world and the implications for security and privacy.  She will be discussing the role of the police and security and intelligence agencies, as well as the safeguards needed to protect our privacy and liberty.

In the light of recent revelations about the way GCHQ has been collecting images taken from Yahoo! webcam conversations, including very considerable volumes of sexually explicit images of the users, I do hope that Yvette gives some thought as to how such activities should be regulated in future.

I also hope that Yvette makes the point that law reform may not be a necessary or sufficient means of more appropriately regulating such activities. Whatever the law is (or is to become), it will in any event be deliberately drafted in a flexible manner, to cater for future contingencies.  

It is not the law that is necessarily the “problem”.

The “problem” lies in the oversight.

Even though what GCHQ may have doing was “lawful”, the really critical point is that the activity was (or would have been) known to the appropriate oversight bodies, and such techniques would have been carefully discussed and formally approved.

Let me go one step further.

I find it incredibly hard to contemplate sensitive and intrusive techniques, such as the Optic Nerve technique, being considered and approved just at an operational level. They would also have been carefully considered and approved at a very senior political level.  

The “problem” lies in the political oversight.

So, we should not blame RIPA or other surveillance laws  - or just the spooks - for developing sensitive and intrusive techniques. We should place the accountability (if there is to be any accountability) firmly at the doors of those who took the political decision to authorise the deployment of the techniques. Parliament would not have known. But a small group of very senior politicians would. In a decade’s experience of working under both Labour and Coalition Governments, I never saw a difference of view between senior Labour or Coalition ministers when political approval for any intrusive sensitive techniques that I might ever been made aware of was sought.

This is why I’m looking forward to hearing comments from former Home and Foreign Secretaries such as Margaret Beckett, David Blunkett, Charles Clarke, Alan Johnson, David Miliband, John Reid, Jacquie Smith, & Jack Straw about what changes have to Britain’s surveillance laws are appropriate. Oh, and also from the current incumbents, Theresa May and William Hague.

Now, what might actually happen if surveillance laws were to be changed?

Probably, not a lot.

And this is because the really sensitive decisions will still be made by senior Ministers, on the basis of evidence that is presented to them which is sufficiently persuasive of the need to approve whatever is being asked of them.

To think that we Brits might face a less intensive level of surveillance simply because the surveillance laws had been changed is an interesting concept, but perhaps a misguided one.

Given the operational control they have over what does go on, until a small group of senior Ministers change their behaviours (and their attitudes) towards surveillance, no amount of tweaking with the surveillance laws is likely to result in significant change.