Labour must oppose the Snoopers’ Charter

In recent years, Labour has been too cavalier with civil liberties. Jack Straw’s obsession with “Hampstead liberals” has clouded serious debate about liberty in a party that traditionally has been the underdog. It should only take a moment of reflection on the use of state surveillance against leading figures within the Labour movement for the party to release it needs to kill the coalition’s proposed Snoopers’ Charter.

In the 1980s there was a clique of 40 engineers known as “Network Services Field Projects” within British Telecom, then state-owned. They were used by the security services to wire-tap the phones of suspected ‘extremists’. Among those it is alleged that MI5 bugged were future Labour cabinet ministers Harriet Harman and Patricia Hewitt who were placed on file as “communist sympathisers”. Leading members of the trade union movement were also wire-tapped. The MI5 whistle-blower Cathy Massiter told Hugo Young that “political pressure” from Mrs Thatcher’s government meant that organisations such as CND also came under surveillance adding:

“It is totally unjust and immoral to direct these surveillance techniques and operations against decent and law abiding trade unionists and members of legitimate political parties and organisations like CND.”

This state surveillance allegedly meant the Fire Brigades Union’s phones were tapped during a strike in Leeds. The state also bugged pay negotiations between trade union leaders and what were then state-owned industries. The National Council for Civil Liberties (now Liberty) was infiltrated by special branch, and phones were tapped.

Incredibly, the state then had fewer powers to intercept private communications than it does now. The last Labour government’s draconian Regulation of Investigatory Powers Act 2000 (RIPA) significantly expanded the scope of state snooping (with no judicial oversight). RIPA, originally intended to catch terrorists and dangerous criminals, was used by Poole Borough Council to spy on Tim Joyce and Jenny Paton to see if they were cheating the school catchment area rules. They obtained the couple’s phone billing records and tracked their travel (and their children’s travel) for 3 weeks. Powers that were only supposed to be used to track criminals and terrorists were used six times on the family. There have been over 3 million RIPA authorisations to collect private data from individuals to date. Little investigation has been done to show how many of these authorisations have been illegitimate.

The Tories’ manifesto said “wherever possible, personal data should be controlled by individual citizens”. The coalition agreement committed to “end the storage of internet and email records without good reason”. The government’s draft Communications Data Bill will do exactly the opposite. No other democracy has gone as far as the UK government proposes to in this bill – with surveillance more akin to China to Iran.  The Bill will force ISPs to store your Facebook messages, your Twitter inbox, your web browsing history, SMS messages and your emails. They will be all available for arms of the state to access, with no judicial warrant and minimal oversight.

The problem with this state snooping isn’t merely that it makes us uncomfortable; it’s that it severely chills free speech. If the state can access this much data, how can anyone remain anonymous? Anonymity is also a key component of individual freedom of expression – as necessary in democracies as in authoritarian states – and an inability to express views or share information anonymously can chill free expression and even put individuals at risk of harm. The draft bill will make it difficult for journalists to encourage whistle-blowers to speak out – especially about the activities of state agencies – as these agencies will be able to build a picture of the behaviour of the journalist using their phone records, email traffic, and location using mobile phone base-station triangulation or GPS. The chill on freedom of expression would be significant. It’s not hard to see that if the draft Bill passed, future NHS whistleblowers, or civil servants who speak out on dangerous government policies, will be deterred knowing their personal emails and location on a particular day is only a few clicks away.

It’s the second part of the draft Bill that is even more chilling. It will bring in a shift from the widespread but targeted monitoring of private communications, to the total stockpiling of personal data for a future, unspecified purpose. Once the state captures this data, it’s unlikely to dispose of it voluntarily. A similar bill proposed in the Czech Republic was found to be unconstitutional with the Supreme Court stating:

“individuals [should] be acquainted in advance with the circumstances in which the State may, exceptionally, interfere with their private lives, so that they can adjust their behaviour in order to avoid such interference. The blanket nature of the retention of traffic and location data, however, limits, and even excludes, such a possibility.”

As Professor Laurence Lessig has pointed out, the US government has an ‘iPatriot’ Bill waiting in case of an ‘i-9/11’ which would radically change the way the internet works. To this end, the Bill delegates powers to the Home Secretary to amend the legislation without parliamentary scrutiny. With these powers, it could take a single emergency to create a situation that radically altered the use of state surveillance across the entirety of the British population – potentially with little or no parliamentary scrutiny.

Labour now has a policy blank sheet of paper, and an opportunity to reposition itself on civil liberties. The cost of these measures is predicted by the government to be around £2 billion, or six times the cost of the apparently “unaffordable” Educational Maintenance Allowance (EMA) paid to poorer students. Many hacktivists believe the terrorists and criminals the government is targeting will be savvy enough to avoid this surveillance. Yet, many ordinary citizens will not be so lucky. If you know your email could be read, at a future unspecified date, you’re likely to be careful what you say. The effect on free speech in this country could be calamitous as people hold back, and self-censor.

In 1963, Lord Denning stated:

“…the Security Services …are to be used for one purpose and one purpose only, the defence of the Realm. Most people in this country would, I am sure wholeheartedly support this principle for it would be intolerable to us to have anything in the nature of a Gestapo or Secret Police to snoop into all that we do…even at the behest of a Minister or a Government department…”

With our data giving away even more clues as to our personal lives now, than at any point in the past, this is truer now than ever. Labour must help kill this Bill.

Mike Harris is Head of Advocacy at Index on Censorship.